| 2.1
SUBSTANTIVE RIGHTS
Long-standing precedent of the United States Supreme Court
holds that the Due Process Clause of the Fourteenth Amendment
protects the fundamental liberty interest of parents in
the care, custody and control of their children. Meyer
v. Nebraska, 262 U.S. 390, 399, 401 (1923); Pierce
v. Society of Sisters, 268 U.S. 510, 535 (1925).
In Prince v. Massachusetts, 321 U.S. 158 (1944), the Court
again confirmed that there is a constitutional dimension
to the right of parents to direct the upbringing of their
children. "It is cardinal with us that the custody, care
and nurture of the child reside first in the parents." 321
U.S. at 166. Subsequent cases applying this principle have
explained that this constitutional liberty derives from
the presumption that "natural bonds of affection lead parents
to act in the best interests of their children." Parham
v. J. R., 442 U.S. 584, 602 (1979).
In 2000, the U.S. Supreme Court reiterated the importance
of this interest in the case of Troxel
v. Granville, 530
U.S. 57 (2000), ruling that a Washington State
statute allowing “any person” to petition for
visitation was unconstitutional because it impermissibly
infringed on the rights of parents.
In the seminal case of Stanley v.
Illinois, 405 U.S. 645
(1972), the Supreme Court upheld the principle that an unwed
father could not be presumed to be an unfit parent, but
was entitled to a hearing pursuant to the Equal Protection
Clause of the Fourteenth Amendment. This case thus marks
the connection between the substantive rights of parents
and the procedural requirements necessary to protect those
rights.
Not only are parents entitled to an evidentiary hearing
before a determination can be made as to their "fitness"
(i.e., whether their parental rights should be terminated
permanently), but the Due Process Clause also dictates that
the standard of proof in such cases must be clear and convincing
evidence, rather than a mere preponderance. Santosky
v. Kramer, 455 U.S. 745 (1982).
The New Mexico Supreme Court reviewed and endorsed these doctrines in the case of In the Matter of the Adoption of J.J.B., 119 N.M. 638 (1995), which clarified the standards for termination of parental rights on the grounds of presumptive abandonment. See §22.4 of this
Handbook. That case, however, like the precedents
to which it adheres, reiterates that the rights of parents
are not absolute. Rather, those rights must be balanced
against the interests of the child, and the state's compelling
interest
as parens patriae. See also, Santosky
v. Kramer, cited above.
Similarly, in Williams v. Williams, 2002-NMCA-074, 132 N.M. 445, the Court of Appeals distinguished Troxel v. Granville in upholding a district court order granting visitation rights to grandparents over the parents’ objection. “Troxel may have altered, but it did not eradicate, the kind of balancing process that normally occurs in visitation decisions,” considering both the child’s best interests and giving special consideration to the parents’ wishes, when there is no finding of parental unfitness. Id. ¶23.
Although the courts have not explicitly articulated the contours of the corresponding rights of children, the truth is self-evident that children also have certain inalienable needs: to be free from physical and emotional harm at the hands of their caretakers; and to be provided with the essentials of food, shelter, education and medical care. If the parent cannot ensure that those needs are met, then the state may intervene legally.
The legislature has defined in detail the duty and the discretion of parents, guardians and custodians. Under §32A-1-4, a parent has all of the duties and authority of guardianship and legal custody of the child, unless limited by court order. The duties and authority of guardians and custodians are also described. These establish the constitutional foundation and justification for all child welfare proceedings.
In the short term, the state can act upon a showing of actual harm or imminent risk to the child, acquiring a greater degree of control in proportion to the proof of parental incapacity. During the pendency of any legal proceeding, the parent retains a statutory right to visitation with the child, unless the court finds that the best interests of the child preclude any visitation. §32A-4-22(D). Likewise, the child has a corresponding interest in maintaining contact with parents, siblings, extended family members and others with whom the child has a significant, caring relationship, unless such contact is shown to be contrary to the child’s best interest. §32A-4-22(E).
Where the state can prove that the parent is unable to care for the child, it may move to terminate, rather than merely suspend, all parental authority. See Chapter 22. Moreover, if the state does intervene to deprive the parent of all rights regarding the child, then the state must also assume another function implicit in parenting, namely to provide a permanent and stable set of relationships, a sense of family identity for the child.
2.2
LIMITATIONS
The definition of “parent” in the New Mexico Children’s Code identifies as a parent a biological or adoptive parent “if the biological or adoptive parent has a constitutionally protected liberty interest in the care and custody of the child.” §32A-1-4(O). This definition reflects the holdings of a line of cases from the U.S. Supreme Court that declare that the right to parent is not a mere incident of biology, but requires some sort of familial relationship.
In Caban v. Mohammed, 441 U.S. 380 (1979), the U.S. Supreme Court struck down a state law that treated unwed fathers differently than unwed mothers when the spouse of one of the parents petitioned to adopt the child. Referring to the case of Quilloin v. Walcott, 434 U.S. 246 (1978), the Court stressed that the strength of an unwed father’s claim to his child is directly proportional to his efforts to fulfill his parental responsibility. 441 U.S. at 389, 393.
Conversely, in the case of Lehr v.
Robertson, 463 U.S.
248 (1983), the Court upheld New York’s putative father registry, ruling that an unwed father has no guarantee of notice of the adoption of his child, unless he undertakes some affirmative actions to establish a custodial, personal, or financial relationship with her. A biological connection creates the opportunity to become a parent; but if a parent does not avail himself of that opportunity, the Constitution will not afford him that right automatically.
Even a father who has both a biological and an established relationship with his child may be denied parental rights by a state statutory presumption that the husband of the mother is the child’s legal parent. Michael
H. v. Gerald D., 491 U.S. 110 (1989).
The question regarding who has a constitutionally protected liberty interest is answered to some extent in the Adoption Act, which defines the terms “acknowledged father,” “presumed father” and “alleged father” and requires that the first two men, but not the last one, consent before an adoption can take place. See Appendix
B for the definitions.
These provisions make it clear that biology alone does not confer a constitutionally protected parental status. A father must act affirmatively to acknowledge his paternity in some fashion before it will be recognized by the courts or protected under the Children’s Code.
2.3
PROCEDURAL RIGHTS
Persons who have a constitutionally protected liberty interest in their children cannot be deprived of their rights without due process of law. At a minimum, due process requires notice and the opportunity to be heard. While the Children’s Code and the Children’s Court Rules establish the mechanism to meet these requirements, it is incumbent upon all the parties to verify that they are met in fact. In the first instance, this may mean something as mundane as establishing the correctness of addresses and telephone numbers; or it may entail a sophisticated search to identify and locate absent parents. Throughout the proceedings, participants should endeavor to remember and respect the dignity and humanity of all the family members.
To protect these rights in particular, both the Code and the Rules provide for the appointment of counsel to represent respondents, and for those counsel to be provided free of charge if respondents are indigent. Case law has clarified that the right to counsel includes the right to effective assistance of counsel. State ex rel.
CYFD v. Tammy S.,
1999-NMCA-009,
126 N.M. 664 (decided in 1998). It also affirms the parent-respondent’s right to an appeal. State ex rel.
CYFD v. Alicia P., 1999-NMCA-098,
127 N.M. 664 (decided in 1998).
Recently a series of appellate decisions has delineated the dimensions of the opportunity to be heard when respondent is not physically present at trial, whether as a result of incapacity, incarceration or deportation. In such situations, alternative measures must be implemented to preserve the opportunity to testify on one’s own behalf, to cross-examine witnesses, and to confer with counsel. State ex rel. CYFD v. Mafin M., 2003-NMSC-015, 133 N.M. 827; State ex rel. CYFD v. Maria C., 2004-NMCA-083, 136 N.M. 053; State ex rel. CYFD in the Matter of Ruth Anne E., 1999-NMCA-035, 126 N.M. 670; State ex rel. CYFD v. Stella P., 1999-NMCA-100, 127 N.M. 699; State ex rel. CYFD v. Rosa R., 1999-NMCA-141, 128 N.M. 304.
Just as the due process rights of parents are protected, along with their substantive interests, by the presence of counsel, so the rights of children to fair treatment and decent outcomes are protected by their court-appointed guardian ad litem (GAL) or “youth attorney,” described in §2.4 below. Case law has also clarified the importance of the GAL role, and its scope in investigating and informing the court, as well as representing to the court the stated position of the child. State ex rel. CYFD in the Matter of Esperanza M., 1998-NMCA-039, 124 N.M. 735, and State ex rel. CYFD in the Matter of George F., 1998-NMCA-119, 125 N.M. 597.
2.4
STATUTORY RIGHTS
Because of the significance of the interests involved, both the Children’s Code and the Children’s Court Rules set forth requirements for advisement of parental rights.
At the commencement of the investigation, parents are to be advised of the rights they have during an investigation. These rights include the freedom from being compelled to appear or to produce any papers. §32A-4-4(B). They do not include the freedom to control access to the child or to obstruct or interfere with the investigation. §30-6-4. A child may be interviewed at school or elsewhere without the permission of the parent. §32A-4-5(C). If no petition is filed, a parent has the right to the results of the investigation, and may inspect foundational reports in the possession of CYFD, and may petition the court for further disclosure of records and information, provided that identification of individuals be withheld. §32A-4-33(C). At their first appearance before the court, parents are to be advised of their rights under the Children’s Code. §32A-4-10(G); Rule 10-304. These include the right to a trial on the allegations of the petition and the right to counsel.
According to the Children’s Code, children are afforded the same basic rights as adults except as otherwise provided in the Code. §32A-4-10(A). A child under fourteen is entitled to a guardian ad litem appointed by the court at the inception of the proceeding; the guardian ad litem is an attorney appointed to represent and protect the child’s best interest. A child who is 14 or older is entitled to court-appointed counsel (commonly referred to in New Mexico as a youth attorney). The youth attorney provides client-directed representation, with all of the duties and responsibilities of any attorney under the Code of Professional Conduct. §32A-4-10(C), §32A-1-7.1(A). |
