1899: First juvenile courts established to “save” potentially criminal children from becoming criminal.
“Due process, not benevolent intentions, produces justice.” – Justice Abe Fortas
1972:Unwed father could not be presumed to be an unfit parent; Entitled to a hearing, under equal protection clause)
- Stanley v. Illinois, 405 U.S. 645
1982: The interest of parents in the care and custody of their children is a fundamental liberty interest protected by the due process clause of the 14th amendment.
- Santosky v. Kramer, 455 U.S. 745 (because of due process protection, standard of proof for TPR must be clear and convincing).
* Extended to adjudications by NM statute 32A-4-20(H).
* 83 years from the first children’s courts, 15 years after Gault, came the establishment of due process for TPRs in Santosky.
recognition of these significant fundamental
parental liberty interests, these interests have
never been seen to be without limits.
-Lehr v. Robertson, 463 US 248 (1983).
-Gerald D., 491 U.S. 110 (1989).
The Right to Parent Requires a Familial Relationship – Biology is not enough
Lehr v. Robertson:
The mere existence of a biological link does not merit . . . constitutional protection.To have constitutionally protected parental rights, an unwed father must take steps to establish a “significant custodial, personal, or financial relationship with his child.”
“Parent” under Children’s Code includes a biological or adoptive parentif he/she has a constitutionally protected liberty interest in the care and custody of the child.
- Per Lehr case, probably means “significant custodial, personal, or financial relationship with his child.”
- Note: marriage is not mentioned.
BUT NM Adoption Act adds rights for other fathers.
Unwed bio father can become an “acknowledged father,” if he:
The adoption petition must be served on the acknowledged father. § 32A-5-27.
The acknowledged father’s consent to adoption is required. § 32A-5-17.
But so is the presumed father’s (husband):
Presumed Father Biology is not enough § 32A-5-3(V)
(1) husband of the biological mother at the time the adoptee was born; or
(2) was married to the mother and either the adoptee was born during the term of the marriage or the adoptee was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce; or
(3) attempted to marry the mother before the adoptee's birth by a marriage solemnized in apparent compliance with law, although is or could be declared invalid.
Therefore, abuse/neglect cases need to determine both the Biology is not enough constitutional and statutory rights of both a biological father and a presumed or acknowledged father.
Bio father may or may not have a protected liberty interest. Husband must consent to adoption even if no relationship with child.
Parents’ Substantive Rights Biology is not enough
“An unfavorable personal status, such as low IQ, poverty, mental illness, incarceration, prior convictions, or addiction, is … relevant only to the extent that it prompts either the harms defined as abuse, or the neglect which is defined as the failure to provide ‘proper parental care and control’ or an inability ‘to discharge his responsibilities to and for the child.’”
In re Adoption of J.J.B., 119 NM 638 (1995).
FIT PARENTS Biology is not enough ARE ENTITLED TO LEGAL CUSTODY (usually)
BUT NOTE: Department has a legal duty to investigate allegations of current unfitness. Court can granting Department legal custody until the investigation is complete.”In re A.H., 1997-NMCA-118
“Extraordinary circumstances may arise [warranting state custody] where, after a long separation between parent and child, the necessary parent-child bond has disintegrated [even though parent not found unfit].” Benjamin O., 2007-NMCA-070
Right to Due Process:
The right to counsel is not constitutional.
- Lassiter, 452 US 18 (1981).
But NM statutory right to counsel implies right to effective assistance of counsel.
- In re Tammy S., 1999-NMCA-009.
Parents who are not present at trial must be afforded an opportunity to be heard and present a defense.
Alternative measures must allow the parent to:
testify on his/her own behalf,
confer with counsel, and
have State produce clear and convincing evidence : no proffers.
Rosa R., 1999-NMCA-141; Stella P., 1999-NMCA-100; Ruth Anne E., 1999-NMCA-035.
Abuse and Neglect Cases Are Biology is not enough Not Criminal Proceedings
Purpose of abuse and neglect proceedings is to protect the interests and well-being of children, not to punish the parent.
The child’s welfare is the paramount interest at stake.
Abuse and Neglect Cases Are Biology is not enough Not Criminal Proceedings
“Because neglect and abuse proceedings are civil proceedings, the Confrontation Clause of the Sixth Amendment of the U.S. Constitution…is not at issue [in context of hearsay exceptions].” Pamela A.G., 2006-NMSC-019.
But NOTE: similar interests do protect parents’ right to cross examine witnesses.
Exclusionary rule does not apply in the context of abuse and neglect proceedings because it might thwart the State’s interest in the protection of children. Michael T., 2007-NMCA-16.
The courts have not explicitly articulated the rights of children.
The truth is self-evident that children have certain inalienable needs:
If the parent cannot fulfill “the duty to protect, train and discipline the child and to provide the child with food, shelter, personal care, education and ordinary and emergency medical care,” the state may intervene legally. Cf. § 32A-1-4(N) (defining “legal custody”).
Although best interest of the child findings are required, “best interest of the child” is not defined in statute or case law.
Best Interest of the Child = touchstone against which every placement and permanency decision must be tested.
Best Interest of the Child can be understood by remembering the purposes of the Children’s Code, as described by § 32A-1-3(A):
See also Michael T., 2007-NMCA-163.
A child’s best interest is protected by due process and fulfillment of the requirements of the Code, especially
§ 32A-1-7(A): A guardian ad litem shall zealously represent the child's best interests in the proceeding for which the guardian ad litem has been appointed and in any subsequent appeals.
§ 32A-1-7(D) further requires the GAL, after consultation with the child, to "convey the child's declared position to the court at every hearing."
Since the goal of the proceedings is the best interest of the child, ALL the parties AND the Court should be working to protect the child’s best interest.
Of course, each party’s view of best interest—and approach to protecting the child’s best interest--may be different.
Federal Statutes – Biology is not enough
More Cooks for the Soup
Federal laws and regs impose requirements that must be met to ensure essential federal funding for:
Federal Statutes Biology is not enough
Federal Statutes –cont’d Biology is not enough
1997 ASFA: Adoption and Safe Families Act, PL 105-89:
The court shall determine whether:
45 CFR 1356.21 (ASFA Regs - conditions of funding)
ASFA EMPHASIZES THE CHILD’S
SAFETY, PERMANENCY AND WELL-BEING.
Termination of Parental Rights Biology is not enough
ASFA: TPR proceedings must be filed for a child in foster care 15 of the most recent 22 months unless compelling reasons not to file.
Compelling Reasons Not to File TPR Biology is not enough
after 15/22 months in foster care:
Compelling Reasons Not to File TPR, cont. Biology is not enough
Samantha D., 106 NM 184 (Ct.App. 1987)
Overall Goals Biology is not enough