A blow for fathers and sanity in custody cases

In Family Rights on April 30, 2012 at 2:10 pm

Idaho Court Returns daughter to Dad

April 29th, 2012 by Robert Franklin, Esq.

The Idaho Supreme Court has struck a blow for fathers and sanity in custody cases.  Read about it here (Wisconsin Rapids Tribune, 4/27/12).  In the meantime notice the doggedness with which the Idaho Department of Health and Welfare tried to separate a father from his little daughter.  It doesn’t get much more blatant than this.

An unnamed Mexican national lived illegally in the United States for several years.  He met and married an American woman in 2007.  The pair moved to Mexico in 2008 – he under court order – where she became pregnant and returned to Idaho.  Because he had no legal status in the U.S., he couldn’t come back with her although he tried.  She gave birth to a baby girl in November of 2008.  In March of 2009, the father attempted to reenter the country to be with his new daughter, but was caught in Arizona and returned to Mexico.

The same month, the Idaho DHW, the state’s child welfare agency, took the child into foster care due to the mother’s abuse and neglect.  DHW attempted to reunite the child with her mother, but eventually abandoned the plan because the mother failed to comply with its provisions for her to properly care for the child.

While that was going on…

Back in Mexico, the father was seeking information and contacted the Department of Health and Welfare. He told the caseworker that if his wife could not care for the child, he wanted her to live with him in Mexico, court records show.

The man also had the Mexican health and welfare officials determine whether he was fit to raise a child. Their report found the man was “financially, emotionally, physically and mentally able to provide” for his daughter, the high court said.

By 2010, Idaho DHW had concluded that the mother was incapable of providing properly for her child and, in a move we’ve come to know as typical, sought to place the girl for adoption.  In other words, it ignored the father as a placement alternative and moved to terminate his parental rights.  Amazingly, it did so on the theory that he’d “abandoned” his child.

Now, legally, in order to abandon a child or anything else, one must have an intent to do so.  Obviously the father had no such intent; he’d attempted to return to the U.S. to be with the child and had himself evaluated for parental fitness by the Mexican authorities.  But the DHW was adamant.  Why?

In a ruling Thursday, justices said a lower court erred when it severed the man’s parental rights in December. Idaho’s Department of Health and Welfare had requested the move, claiming the man abandoned his daughter and it was in her best interests to remain in the U.S.

The high court rejected those arguments and questioned the department’s motives, noting that an employee at the agency wanted to adopt the toddler.

“It makes one wonder whether the real reason for seeking termination of (the) father’s parental rights is the fact that a department employee wanted to adopt (the) daughter,” said Justice Daniel Eismann, who authored the court’s unanimous opinion.

We’ve run into this before.  Claims that child welfare agencies routinely traffic in children for adoption sound outrageous until we examine the facts.  It’s undeniable that child welfare agencies often fail to contact the father as a possible placement alternative when a child is taken from its mother due to her abuse or neglect.  The Urban Institute found that in a study some seven years ago.  So when those kids, many of whom could go to their fathers, end up getting adopted instead, it looks suspiciously like CPS is facilitating needless adoptions, exactly as it attempted to do so in this case.

When it’s the child welfare caseworker who’s doing the adopting, the facts become even clearer than before as th e Idaho Suprme Court noted.

One thing the Idaho DHW might have overlooked is the fact that it’s part of the Ninth Judicial Circuit.  That’s significant because several years ago the Ninth Circuit issued a decision holding that it was a violation of federal civil rights laws for a child welfare agency to fail to contact a father before placing his child for adoption.  In short, having lost its bid to steal a child from her father, the Department of Health and Welfare may have just bought itself a lawsuit as well.  Maybe that’s what the Department’s spokesman had in mind when he said this:

The department is still reviewing the decision, said spokesman Tom Shanahan.   “The ruling gives us an opportunity to review our policies and practices to making sure that we’re meeting our obligation to protect parents’ rights from the very start of the case,” Shanahan said.

Whether or not the man sues the State of Idaho, at least justice finally prevailed.  His child will be raised by him and the would-be adoptive parents are now free to adopt a child who needs adopting.

Kudos to the Idaho Supreme Court for seeing clearly the wrong that was being perpetrated and putting a stop to it.



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