NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

September 21, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

This continues the case of Alma S. vs. Department of Child Services of Arizona, this time at the state Supreme Court level. The Supreme Court reversed the appellate court, greenlighting the termination of Alma’s parental rights and the placement of her children for adoption.

In a nutshell, the Court of Appeals held that the evidence was insufficient in the court below for a finding of parental unfitness. It detailed that evidence that seemed somewhere in the range of thin-to-non-existent. The Supreme Court disagreed, saying there was sufficient evidence to uphold the trial court’s ruling.

Now, in attacking the appellate court, the justices of the Supreme Court stooped to framing the issues in some pretty dicey ways.

In reaching its holding, the court rejected the juvenile court’s finding that Mother and Father were still in a relationship, id. at 158 ¶¶ 16–17, 160 ¶ 27, and disagreed with the DCS case manager and the psychologist’s conclusion that Mother lacked the ability to protect the children from abuse…

No, it didn’t “disagree” with the lower court. Disagreement with fact findings by a lower court is simply not something appellate courts do. What it actually did was hold that those findings weren’t supported by sufficient evidence and had to be vacated. The Supreme Court’s iteration suggests not only a lack of respect for the appellate court, but a distinct uneasiness with its own conclusions.

In Arizona, the consideration of whether a parent’s rights to her children should be terminated proceeds along a two-step track. The first requires a finding of parental unfitness. Absent that, the court will not go to the next step which is an inquiry into the child’s best interests.

In Kent K., we implicitly equated the substantive grounds for termination listed in § 8-533(B) with parental unfitness. Id. at 285–86 ¶¶ 31– 32. We now explicitly reiterate that conclusion, which ensures compliance with the due process requirement that a court find, by clear and convincing evidence, parental unfitness when a severance is contested.

So, in order to terminate Alma’s parental rights, the Department was required to prove by clear and convincing evidence that she was unfit to properly care for her kids. To do that, the state presented the following evidence: that her boyfriend had abused one of the children once, that Alma didn’t promptly seek medical care for the child, that her relationship with the boyfriend was (a) abusive and (b) ongoing.

That the boyfriend abused one of the children appears to have been uncontested, and the facts seem to bear it out. But Alma discovered the apparent abuse when she returned home from work in the evening. The very next day, before returning to work, she asked her sister to take the child to the doctor, which the sister did. There was no evidence and no insinuation that waiting overnight to take the child to the doctor adversely affected the child in any way.

There was likewise no evidence that Alma’s boyfriend was abusive to her or that he’d abused the child more than once. Alma said she had little or no ongoing relationship with the boyfriend, but he told a therapist that the two were still dating.

On that basis, the trial court found, supposedly by clear and convincing evidence, Alma to be an unfit mother. By any stretch of the imagination, that’s just not so. If those facts are all it takes for a parent in Arizona to have her child shanghaied away, then next to no one is safe.

The Court of Appeals seems to have seen the travesty of the trial court’s rubberstamp of DCS’s desire to have Alma’s children adopted and moved to put a stop to that injustice. Among other things, it revealed the Department’s clear intention when it failed to inform its hand-picked mental health professional that Alma had tested negative for drugs for the previous three years, that the Department had discontinued requiring her to take the tests and that she no longer had a relationship with the abusive boyfriend.

Unsurprisingly, the psychologist found that Alma was suffering from “cannabis use disorder,” “cocaine use disorder” and “ecstasy use disorder,” which I suspect was the Department’s goal all along. That it failed to provide him truthful information not only reveals the Department’s intentions, but the paucity of its evidence. The Court of Appeals trenchantly stated,

If these conclusions were supported by evidence, they would indeed be significant, but the evidence tells a different story. Conspicuously absent from the information the Department gave the psychologist is any reference to the 14 months of services Mother had successfully completed or was currently receiving. Mother had — without exception — tested negative for drug use; successfully closed out of her drug-testing service because of the lack of any positive test; closed out of drug rehabilitation because the service provider determined that no drug treatment was necessary; participated in domestic-violence counseling and group meetings; and successfully completed at least eight months of parent-aide services and supervised visitation, where she always came prepared and showed proper parenting skills.
¶24 At trial, the expert testified that he never received any information about these services.

Then of course there’s the fact, again recited by the Court of Appeals but not the Supreme Court, that the children were closely attached to their mother and she to them.

Plainly, Alma S. is not everything we’d like a parent to be, but for the umpteenth time, no parent is required to be. In order to maintain their parental rights, parents must only be fit. Unquestionably, Alma is. What the trial court and the Supreme Court overlook is not only the totality of the evidence against her, but its quality. In no sane world would a state be permitted to make off with Alma’s children.

But Arizona has done just that.

Or it has if Alma doesn’t appeal her case to the U.S. Supreme Court. Interestingly, the concurring opinion of Justice Bollick seems to all but beg her to do just that.

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