Lexi’s Outcome Apart from the ICWA, Part 3: When Constitutional Rights Collide

Welcome back to our ongoing analysis of Lexi’s outcome apart from the ICWA. We will be diving further into case law in order to understand how Lexi’s case would have been handled if the ICWA had not been interjected into the situation.

Previously, we discussed the relative placement preference and uncovered some common myths surrounding that topic. We essentially learned that the relative placement preference “is not a relative placement guarantee” In re Joseph T. (2008). And when relatives come forward expressing interest in the placement of a child, the court must determine if it’s in the best interest of the child to be placed with that relative, rather than presume this to be the case.

Yet there is perhaps an even more compelling issue to consider, and that is the topic of parental rights. This is one of the most common arguments supporting Lexi’s transfer to Utah. It goes something like this:

Lexi’s biological father’s parental rights have not been terminated. Therefore, his wishes regarding the placement of his daughter are constitutionally protected and must be honored.

At surface level, this does appear to be a compelling argument. The fact is that parents do have a fundamental right to the care and custody of their children and to make decisions on their behalf. The United States Supreme Court has deemed this to be a right protected under the Fourteenth Amendment of the U.S. Constitution. This claim first originated in Pierce v. Society of Sisters (1925), when the court ruled an act unconstitutional that required parents to send their children to public schools, stating that it “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” A series of court decisions then ensued throughout the century culminating in Troxel v. Granville (2000), when it was incontrovertibly sealed into federal case law as the court stated explicitly, “it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

Yet despite the unambiguity of the Supreme Court’s statements, this issue is still to this day one of the most interesting and complex topics in dependency law, and one which judges have clearly wrestled with over the years.

Why is it still so complex?

Because while parents do have a constitutionally protected interest in an ongoing relationship with their children, children also have a constitutionally protected right to a stable and permanent home. Unfortunately, there are times when those two interests collide. When this happens, judges must balance both of those interests in a way that safeguards the fundamental rights of each. This is no easy task.

This post will evaluate how the courts have historically handled this dilemma and will then apply these observations to Lexi’s case.

Now before we begin, we must clarify some common misunderstandings about case law. Whenever case law is referenced, detractors will typically find some variation in the circumstances of the case in order to prove its irrelevance, thereby dismissing the statements which you supplied. This is an inaccurate way to deal with case law. Remember, judges do not interpret circumstances; they interpret laws. They then decide cases based on those interpretations of law. So the question before us is not whether the circumstances of the case are similar to Lexi’s, but whether the laws that the judges are interpreting apply.

Consider, for example, the relative placement preference under Wic Sec 361.3. As we learned, it does not “supply an evidentiary presumption that placement with a relative is in the child’s best interests”. The fact that the circumstances of that case were different than Lexi’s does not make the statement irrelevant. The statement is only irrelevant if that portion of the law is inapplicable. One who supports Lexi’s transfer to Utah must be very careful about dismissing such statements so casually. Because in doing so, they are not arguing for the irrelevance of the statement itself or the case from which it came. They are arguing for the irrelevance of the law on which the judge is commenting. In that case, we were discussing the relative placement preference, which I seriously doubt any supporters of Lexi’s transfer to Utah wish to dismiss.

With this in mind, let’s dive further into case law, not with the purpose of finding cases that are identical or even alike to Lexi’s case, but to understand the laws that would have driven her outcome if the ICWA were not in the picture.

This leads us to our next observation.

  1. Once reunification services are terminated, parental interests in a continued relationship with the child are no longer the paramount concern of the court.

This statement is no doubt going to anger many people, and reasonably so. As you study case law in dependency proceedings, it can be a very sad and heart-breaking endeavor. Inevitably, someone with a genuine desire for an ongoing relationship with the child is disappointed. You can sense their heartbreak; whether it comes from foster parents or extended relatives seeking to adopt a child or biological parents wishing to keep their family unit together. At the end of the day, the best interest of the child is the chief concern, not the desires of the adults in the situation. As a result, someone is always let down. And that person is not always the one you might think.

The pivotal case that addressed these complexities is In re Marilyn H. The similarity of the circumstances surrounding this case to Lexi’s is irrelevant to our discussion. Our goal here is to analyze the point at which a child’s constitutional right to stability and permanence takes precedence over a parent’s constitutional right to the care and custody of the child.

In re Marilyn H. was a case in which a biological mother had requested that the court consider returning the child to her care during the section 366.26 hearing due to changed circumstances. This mother had actually completed the reunification plan for another child, successfully returning that child to her custody. Clearly her circumstances had changed. It stands to reason that if she successfully completed reunification with another child, she would be fit enough to regain custody of Marilyn. Nevertheless, the court rejected the mother’s claims, allowing the child to remain in the care of her current caretakers.

Clearly these circumstances are different than those surrounding Lexi’s case. Unlike Marilyn’s mother, there is no clear indication that Lexi’s father is still a fit parent, nor has he even attempted to regain custody of his child which, despite the termination of reunification services, he is still able to do by filing a section 388 petition. But what interests us now is why the appellate court rejected the mother’s claims.

The ultimate reason the court denied the mother’s request to consider reunification at the 366.26 hearing is essentially that her constitutional rights have already been adequately satisfied throughout the reunification process and subsequently through section 388. Listen to what they had to say.

“Significant safeguards have been built into the current dependency scheme. They include representation by counsel to assist parents at every [5 Cal. 4th 308] stage of the proceedings (§ 317), notice of all hearings and rights (§§ 307.4, 308, 311, 316, 335-336, 364-366.23), clear and convincing evidence for removal from custody (§ 361, subd. (b)), reunification services (§ 361.5), and review hearings at which services and progress are reviewed (§§ 366.21, 366.22).”

“Under the current dependency scheme, except in limited circumstances, a parent is entitled to 12 months of reunification services, with a possibility of 6 additional months, when a child is removed from a parent’s custody. (§ 361.5.) The juvenile court must review the case at least once every six months. (§ 366.) At the dispositional hearing, and at each review hearing prior to permanency planning, there is a statutory presumption that the child will be returned to parental custody. At the dispositional hearing, the burden is on the state to prove, by clear and convincing evidence, that removal of the child from the parent’s custody is necessary. At 6-, 12-, and 18-month review hearings the juvenile court must return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the child’s physical or emotional well-being. (§§ 361, subd. (b), 366.21, subds. (e) & (f), 366.22, subd. (a).) At the review hearings the state must also present evidence that reasonable reunification services have been provided to the parent. (Ibid.) If the child may not safely be returned to the parents within a maximum of 18 months from removal, the court must develop a permanent plan for the child. Prior to terminating reunification services, the court must make a determination that it would be detrimental to the child to be returned to the parent’s custody. (§§ 366.21, subd. (f), 366.22, subd. (a).)

In between the normal review hearings the parent has the assistance of both a social worker and an attorney. In addition, throughout the reunification period and thereafter, the parent has the continuing right to petition the [5 Cal. 4th 309] court for a modification of any of its orders based upon changed circumstances or new evidence pursuant to section 388.”

And if this isn’t enough, the Marilyn H. court even stated quite explicitly that “up until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over the child’s need for stability and permanency.”

Now that’s a lot to take in. But let’s apply all of this to Lexi’s case. To what extent have the father’s constitutional rights been protected? Let’s break this down into plain language.

  1. He was provided a social worker and an attorney to assist at every stage of the proceeding.
  2. He was notified of his rights and all relevant hearings.
  3. The court was unable to remove Lexi from his custody without clear and convincing evidence of substantial risk of harm.
  4. He was provided reunification services, allowing him the opportunity to regain custody of his child.
  5. He was afforded up to 18 months, with assistance from a social worker and attorney, to overcome the obstacles that led to Lexi’s removal.
  6. He was granted periodic review hearings to assess his progress. At his 6-month review hearing, the Department even reported “a substantial probability he would reunify with Alexandria within the next six months.”
  7. At each review hearing he could have regained custody of his child. The court could only prevent it by proving that returning Lexi to his care would create a substantial risk of detriment to her physical or emotional well-being.
  8. The court couldn’t terminate reunification services without proving again that returning Lexi would be detrimental. In Lexi’s case, the father actually terminated his own reunification.
  9. Even after reunification was terminated, at any point throughout the last 4 years, he could have submitted a section 388 petition, requesting the court to modify any of its orders based on changed circumstances or new evidence.

So to answer the question, Lexi’s biological father’s constitutional due process rights have been adequately satisfied. He has been given ample time and resources to prove his fitness as a parent, but has failed to do so. And as the U.S. Supreme Court once commented in a statement that has been cited countless times over, “Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring…the mere existence of a biological link does not merit equivalent constitutional protection. If the natural father fails to grasp the opportunity to develop a relationship with his child, the Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests lie.” Lehr v. Robertson (1983)

Now enough talk about the parent at this point. What about the child?

As the Marilyn H. court went on to explain, “childhood does not wait for the parent to become adequate.” At some point, a child’s need for stability and permanence must be protected over a parent’s right to a relationship with the child. The event facilitating this shift is clear and has been confirmed time and time again in case law. “Once the reunification services had been terminated, the focus of the case shifted away from reunification to providing a permanent, stable placement for the children.” Or in the words of another court, “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount.” In re Brittany K. (2005)

So the reality is that the moment Lexi’s father picked up that phone and “communicated to the Department that he no longer wished to continue reunification services” he was essentially telling the court not to be concerned anymore with his interest in maintaining a relationship with his child. When the father made that phone call, he had given up on his own responsibilities as a parent and fell backwards, hoping that the open arms of the ICWA would catch his fall. Standard dependency law does not allow unfit parents to terminate their reunification plan as a backdoor means at reunification. Only the ICWA affords them that opportunity.

Now we have only considered one side of the coin when reunification services are terminated. In a future post we will look at where the shift in focus does turn at this point, which is to provide a stable and permanent home. You might be shocked at what this commonly dictates.