Constitutional Framework for Non-Removal Parents

Transcription

1 Constitutional Framework for Non-Removal Parents Rick Croutharmel August 16, 2012

2 Rick Croutharmel August 16, 2012

3 Terminology Non-Removal = Non-Custodial Non-Offending = did not do anything or fail to do anything that allowed the child to be harmed or to be exposed to harm See In re Evans, 81 N.C. App. 449, 454 (1986) (The task at the temporary custody or removal stage is to determine whether the child is exposed to a substantial risk of physical injury because the parent is unable to provide adequate protection.) However, note the current lang. of NCGS 7B-507(a)(5): immediate threat of harm to the juvenile justifies removal Non-Resident = Doesn t live in NC

4 Scenario Parents do not live together Child lives with one parent ( custodial parent ) Some harm or threat of harm befalls the child while with the custodial parent causing DSS intervention You represent the non-custodial parent

5 The Court s Focus Status of the child, not an individual parent s culpability In re Montgomery, 311 N.C. 101, 109 (1984) (first mention of not focusing on parental culpability) In re J.A.G., 172 N.C. App. 708 (2005) ( as to lang.) In re B.M., 183 N.C. App. 84, 87 (2007) (at the adj/disp phase the Court s focus is the status of the child) In re M.G., 363 N.C. 570 (2009) (an adjudication is a hearing on the juveniles statuses. )

6 The Court s Focus cont. Weak philosophical underpinnings? The abuse and neglect definitions include references to parents Abuse: allows to be inflicted Neglect: does not receive proper care... from... the... parent The Jon Benet Ramsey analogy

7 Constitutional Protections Really remain the same for parents regardless of status (removal or nonremoval) Stem from United States Supreme Court decisions: Stanley v. Illinois, 405 U.S. 645 (1972) Santosky v. Kramer, 455 U.S. 745 (1982)

8 Constitutional Protections Equal Protection (Stanley) A form of due process Ruled: An unwed but otherwise parentally fit father is constitutionally entitled to a hearing before State can remove his children Procedural due process (Santosky) Ruled: Raising children is a liberty interest that is constitutionally protected Also established clear and convincing evidence std

9 Procedural Due Process Protection In re Murphy, 105 N.C. App. 651, 653, 414 S.E.2d 396, 397 (1992), citing Santosky v. Kramer, 455 U.S. 745, 753 (1982), aff d, 332 N.C. 663, 422 S.E.2d 577 (1992) ( Our federal constitution recognizes that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. )

10 Procedural Due Process Protection due process requires that the State support its allegations by at least clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 747 (1982)

11 What is a Liberty Interest? An interest in freedom from governmental deprivation of liberty, esp. without due process One form of liberty is the liberty to raise your children the way you see fit

12 Liberty Interest Loss A parent loses the constitutionally-protected right to custody, care, & control if the court finds Parent is unfit, or Parent has neglected the welfare of the child Petersen v. Rogers, 337 N.C. 397, , 445 S.E.2d 901, 905 (1994)

13 Liberty Interest Loss cont d Language often used: parent has acted inconsistently with constitutionallyprotected right to parent Once a child is adjudicated abused or neglected, the parent loses his/her decisionmaking ability In re Stratton, 153 N.C. App. 428, 571 S.E. 2d 234 (2002) (immunization case)

14 Personal Jurisdiction Non-resident (really, all) parents must be served and brought into the action But the court is not deprived of subject matter jurisdiction if at least one parent and child present (and participating) in NC Unclear on whether court can TPR on non-resident parent with no ties to NC Case law says no (In re Trueman, 99 N.C. App. 579, , 393 S.E.2d 569, 570 (1990). UCCJEA says yes (NCGS 50A-201(c))

15 Non-secure Custody NCGS 7B, Article 5 Not required in all cases (compliance cases) Three requirements (NCGS 7B-503): Reasonable factual basis to believe allegations in petition are true One of 6 criteria met No other reasonable means to protect juvenile Petitioner must prove by C&C evidence that NSC is necessary

16 Case Studies In re J.A.G., 172 N.C. App. 708 (2005) ( as to lang.) Not really constitutional Thoughts on developing theories of defense Rick s Equal Protection Case Non-resident parent Not allowed to participate in TPR hearing via telephone

17 Mathews v. Eldridge Mathews v. Eldridge, 424 U.S. 319 (1976) Balancing Test The appropriate measure for determining if a trial court has met the rigors of the due process clause in a termination of parental rights hearing. Murphy, 105 N.C. App. at 653, 414 S.E.2d at 397.

18 Mathews v. Eldridge Cont. The Mathews v. Eldridge factors are the following: the private interests affected by the proceeding the risk of error created by the State s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure

19 Questions?