21 September 2009

Families Can Be Complicated

A week ago, the Colorado Supreme Court made a ruling in a tangled abuse, neglect and custody case. I've changed the party designations to mother, father and child, but otherwise I am quoting from the majority (first blockquote) and dissenting (subsequent quotes) opinions:

Child was born to mother and father while the two parents lived together. The couple was not married, and they separated shortly after their daughter was born. The father was not named on the birth certificate and did not acknowledge her as his child. During her first year, child was in her mother’s care. The father had little or no contact with child and took no part in raising her. He was identified as child's father and ordered to pay child support as a result of a paternity action filed against him after the mother received public assistance for the care of child. Uncontroverted reports and testimony in the record indicate that the father never sought visitation or custody of child, and DHS’s attempts to set up visitations with the father went unanswered. The mother testified that it was she who reinitiated contact between the father and child, sometime after he failed to acknowledge the child’s first birthday.

Approximately two years after child’s birth, DHS initiated an investigation into child’s care. After an initial investigation, DHS filed a dependency and neglect petition in child’s case based on allegations against the mother and independent allegations against the father. One day while the mother and child were visiting the father’s home, DHS arrived and took custody of child. The father contends that he had custody of child when DHS removed her. The respondents dispute his claim, and the district court ruled against the father. . . .

In an order dated October 1, 2008 (“the order”), the trial court found that the mother had custody of child prior to DHS’s intervention, found child dependent and neglected with respect to the mother based on her two admissions, and therefore retained jurisdiction over child and the mother. The order adopted concurrent permanency goals to return custody to the mother pending her completion of a treatment program, and to permanently place child with her paternal grandparents through guardianship or permanent custody.

In the same order, the trial court dismissed the father from the proceedings for a lack of jurisdiction due to DHS’s failure to prove that child was dependent and neglected with respect to the father’s conduct. The court also denied the father’s request that it grant him custody of child, finding that parental custody was contrary to child’s best interests.

The majority notes that father "may still petition the trial court for visitation or custody of child, as he was instructed in the order he appeals from today. Should the father petition for custody of child, the trial court will make a determination based on the best interests of the child, as it did in the order at issue here. If the father again disagrees with the trial court’s determination, he may appeal the decision via the established appeals process."

Mother admitted only that “[t]he child is homeless, without proper care, or not domiciled with his or her parent . . . through no-fault of such parent,” and father who faced four abuse and neglect allegations was acquitted of three in a first jury trial and a fourth in a second jury trial.

It found father had not subjected child to mistreatment or abuse; child did not lack proper parental care due to father’s actions or omissions; and father had not failed or refused to provide proper or necessary subsistence, medical care, or any other care necessary to child’s health, guidance, or well-being. Because the jury was unable to reach a verdict on the fourth allegation, a second trial was held. At the second trial, the jury failed to find that child was dependent and neglected as to the fourth allegation, finding child was not subjected to an injurious environment. Thus, the jury failed to find that child was dependent and neglected. . . .

[Then, the trial court] entered an order to show cause why it should not “return custody to Respondent father.”

In the ensuing show cause hearing, the juvenile court reversed course. The court ruled that, because father did not have “legal custody” of child at the time DHS initiated this dependency and neglect proceeding . . . [and] that because mother alone had “legal custody” of child when DHS initiated this proceeding, Mother’s no-fault admission was enough for it to adjudicate child dependent and neglected and retain jurisdiction over the case. The court then dismissed father from the proceeding.

Father failed to take timely action after he was acquitted in the trial court or by filing an appeal of the trial court's ruling, to gain custody. He filed for emergency relief, which the majority in the 4-3 ruling denied because other options had been available. Father was represented by counsel in the two jury trials, but it isn't clear if that representation continued once those trials were over. The majority seems concerned that a trial may find that very little parenting time is appropriate for the father, even though his parental rights were not terminated after jury trials on the issues.

The dissenting three judges acknowledged this, but felt that the trial court was now issuing rulings without jurisdiction because the jury verdict held that there was no dependent or neglected child in this case, and that it would be better to resolve that issue sooner, rather than later. The dissents' main point was that a child is either dependent and neglected, or isn't, rather than being dependent and negleced with respect to a particular child. The logic of this approach would seem to be to give father, whose parental rights remained in place, meaningful status as a parent, and to respect the jury's determination.

As is often the case, as a blogger, I'm not the interested in the procedural dispute between the majority and the minority that was resolved in this case. Suffice it to say that it is a complicated issue. Indeed, I'm not entirely convinced that I have the facts right (or that the court does), despite the fact that I'm quoting liberally from the opinions and have read both opinions.

Given the apparent absence of the father from most of his child's life (the child is by my reckoning about four years old now and does not appear to have spent much time with father at all), and mother's apparent homelessness and apparent need for "treatment" of some kind, a placement of a child with the father's parents also doesn't seem to be an obviously inappropriate ruling. And, Colorado has not, in recent times, given particularly strong weight to "parental rights" when a strong parent-child relationship has not been established, or when someone other than a parent has established a strong relationship with a child.

It does concern me is that the legal issues are so complicated in what seems to be a relatively typical dependency and neglect case.

It is hard to tell what is going on behind the scenes in this case. Why was mother homeless? Why didn't her parents or relatives take in her and her child? What treatment did she require? If the child is placed with father's parents, why did father need to resort to litigation to secure contact with his child? Why wasn't father interested in his child before he faced charges and why didn't he utilize one of the legal options that the trial court suggested?

Reading between the lines, it seems that the father may have done what he could to pay child support and may have argued that he shouldn't be found to have neglected a child who was in the control of the mother.

Because juvenile proceedings are anonymous, it is very hard to do research to determine what really happened, even if you are so inclined.

No comments: