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September 20, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

This continues the case of Alma S. whose parental rights to her two children were terminated by the ruling of the Arizona Supreme Court. The trial court ruled in favor of termination, but was reversed by the Court of Appeals that was in turn reversed by the state’s highest court. Therefore, as things stand now, the children will remain separated and be adopted. Without intervention by the U.S. Supreme Court, Alma S. is out of luck.

The opinion by the Court of Appeals reveals a shocking abuse of power by the Department of Child Safety. From the appellate court’s description of the Department’s behavior, it appears plain that railroading the children into foster care and then into adoption was the plan all along. Put simply, the evidentiary basis relied on by the DCS and the trial court was woefully inadequate to support termination of Alma’s rights. Worse, DCS handpicked experts to opine in favor of termination and then restricted the information those experts received for the purpose of enhancing the prospects of terminating Alma’s parental rights.

At some point, Alma was living with a man who’d fathered one of her children. The other father was in prison. She went to work one day and left the kids with him. When she returned, it appeared one of the children had been on the receiving end of physical abuse. The next day, Alma asked her sister to take the kids to the doctor to ascertain whether abuse had occurred. She did so, the doctor reported the matter to DCS and the children were taken into care.

DCS gave Alma a plan to improve her parenting which she followed to the letter, completing every aspect of it. Nevertheless, based on a single incident of abuse, not by Alma, but by her boyfriend, DCS took aim at her parental rights claiming she’d failed to prevent the harm.

It also seized on the fact that, several years before, she’d used drugs. That information was sent to their handpicked psychologist who used it in his/her determination that she should be deemed unfit to care for the children. What the Department neglected to do was to inform the psychologist that Alma had tested negative for drugs for over three years and the Department itself had shut down the testing regimen.

Meanwhile, a new case manager’s approach to Alma and her rights was even more plainly aimed at termination and adoption.

The case manager testified that in reaching her conclusion she read several but not all of the parent-aide notes (which total 145 pages), never met with Mother outside of court hearings, only consulted with one of the service providers who worked with Mother, never attempted to confirm her suspicions that Mother and Father were still dating, never observed Mother with the children, and never visited or attempted to visit Mother’s home to see if it would be safe for the children. Such a casual inquiry into the facts is not sufficient to meet even minimal professional standards, and such testimony is not sufficient to defeat fundamental constitutional rights.

That’s not a person who’s interested in determining the truth of whether Alma is a capable and loving mother or whether her kids are being harmed in her care. It’s the behavior of a person who wants those kids out of Alma’s care and into the arms of adoptive parents. Her behavior was too professionally shoddy to admit of any other conclusion.

Not only that, but the DCS claimed that Alma still dated the father who’d abused the child. The only problem was that it had no evidence for the claim and Alma denied it. Plus, that father had already had his parental rights terminated and therefore had no legal right to access the child.

From there, the Department claimed that Alma should lose her children because she had a pattern of participating in abusive relationships. But again, their evidence was ludicrously thin. It amounted to two incidents of inappropriate, but scarcely abusive, behavior by the father of her second child.

The first was when Mother called the police to their home, about a week before I.R. was taken to the hospital, because Father had taken her keys. The second was in August 2015 when Father took Mother’s phone and broke it.

Meanwhile, a parent-aide visited the household regularly and made 145 pages of notes recording her observations.

Nor is there a single notation in 145 pages of parent-aide notes to suggest a pattern of selection of abusive partners by Mother, or abuse by Mother.

And yet the DCS made the claim anyway.

And that, my friends, is the entirety of the case against Alma S. On that basis, the trial court approved the DCS’s request to terminate her parental rights.

What was Alma’s relationship with her children and theirs with her?

According to the parent-aide provider’s records, there was not a single instance of Mother failing to come prepared for a visit nor a single situation involving Mother that required the assistance of the parent aide. Every entry notes the love and affection Mother showed for the children.’’
Mother required little or no counseling on how to improve her parenting skills and there is a bond between her and the children. At the close of the evidentiary portion of the hearing, the Department conceded Mother’s successful compliance with services and the fact that Mother is bonded with the children. There also is evidence of a bond between I.R. and J.R.

So Mom loved and cared for the children who loved her back and were attached to her. They were also attached to each other. The Department’s response to that was to take the children not only from her but from each other – permanently.

Indeed, it appears that the Department itself admitted, by deeds if not words, that there was nothing amiss in Alma’s home.

Parent-aide services ended three weeks after the February 2, 2016 parent meeting because the Department transferred the case to another parent-aide provider. But there is no reference to another service provider anywhere else in the record. It appears the Department never made a referral to a new provider nor attempted to continue the parent-aide service, despite the provider’s repeated recommendations that the service continue.

How does all this square with the requirements of the U.S. Constitution and Arizona law? Not very well.

The best-interests determination does not invite a freewheeling inquiry by the government into what placement would be “best” for the child in the abstract. It is unconstitutional “to force the breakup of a natural family . . . without some showing of unfitness and for the sole reason that to do so was thought to be in the child[ ]’s best interest.” Quilloin v. Walcott, 434 U.S. 246, 255 (1978). “In any severance proceeding, the material issue facing the court is whether a parent has the ability to properly parent his/her child . . . .” Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 54, ¶ 42 (App. 2013). Indeed, “[t]he State’s interest in finding the child an alternative permanent home arises only ‘when it is clear that the natural parent cannot or will not provide a normal family home for the child.’” Santosky, 455 U.S. at 767 (citation omitted). “So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.” Reno v. Flores, 507 U.S. 292, 304 (1993).

When the term “best interests of the child” is used, it seems to invite a sort of “common sense” interpretation, i.e. in what situation would the child be best off? But that is fundamentally flawed. As the U.S. Supreme Court has repeatedly made clear, parents have rights and therefore any move by the state to terminate those rights on the grounds of the child’s best interests must be based on the parent’s unfitness, irrespective of whether the child might be better off elsewhere.

To do otherwise, to simply ascertain in which living environment a child would be better off, would be to invite the state to take the children of the poor and transfer them to the more affluent. After all, in the latter environment, they’d likely go to better schools, eat better food, receive better medical care, etc. But it is precisely that sort of exercise of state power that individual parental rights exist to thwart.

They do so for the best of reasons – the state’s interest in intact families. The more we encourage families to remain together, the more we keep kids with their biological parents, the better off the kids are. That in turn means that society is better off because kids raised by their parents tend strongly to do better in all the ways stable, productive societies want. State intervention into family life is sometimes necessary, but must be kept to a minimum because, overwhelmingly, the state is a far worse parent than the parent.

The Arizona Court of Appeals grasped those concepts. Did the state Supreme Court?

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