People ex rel. R.W. , 989 P.2d 240 ( 1999 )


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  • Judge CRISWELL

    dissenting.

    While I agree with the majority’s interpretation of the permanency planning statute, I am convinced that the court could not, consistent with the principles of procedural due process, enter the type of order at issue, unless its underlying factual findings were based upon a clear and convincing standard of proof. Because it appears that the trial court applied a mere preponderance of the evidence standard, I would vacate its order and remand the cause for its reconsideration under the proper standard.

    As the majority opinion reflects, the trial court’s order here appointed the children’s foster parents as their “permanent guardians.” As such, those guardians were given the right and responsibility to make virtually all of the major life decisions for the children, to the exclusion of mother’s wishes or desires. The only decisions that mother can participate in will be to decide the children’s religious affiliation and to determine whether she should consent to their adoption. And, this responsibility will continue on an indefinite, “permanent” basis. While I do not denigrate the importance of the first decision, the retention of the right not to consent to the children’s adoption is, in my view, substantially meaningless under the circumstances.

    Further, the removal of virtually all of mother’s parental rights with respect to the decision-making aspect of her children’s lives is to be accompanied by a total lack of contact (save for one, final, “termination visit”) between mother and her children. Indeed, mother’s only chance of ever seeing her children again during their minority will be if, during some future review proceeding, she assumes the burden of proving that either she or conditions have undergone a substantial change so that visits with the children will be in their interest.

    Mother asserts that the court’s order placing such severe and indefinite restrictions upon her parental rights constitutes the functional equivalent of an order terminating those rights. In contrast, the majority says that she still retains some vestige of parental rights, so that the court’s order was not like a termination order.

    *245In my view, however, the resolution of this issue is not determinative of the question of procedural due process that is presented here.

    In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court noted that there are several types of proceedings, such as civil commitments, deportations, and denaturalizations in which the individual interests at stake are particularly important and which are more substantial than a mere loss of money. In such proceedings, therefore, the government is required to assume an enhanced burden of proof so as to preserve the fundamental fairness of the proceedings. Applying the three-criteria analysis of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Santosky court concluded that proceedings that could lead to a termination of the parent-child relationship also involved such an important private interest that due process required the state to assume the enhanced burden of proving justification for such termination by clear and convincing evidence.

    In my view, whether or not the court order here can be said to be the “functional equivalent” of a termination order, its effect is so restrictive of parental rights that it cannot pass constitutional muster unless it is premised on facts proved under an enhanced standard.

    It may well be that the evidence presented by the state here would meet such a standard. However, because the record does not demonstrate that the court applied that standard before entering its order, I would vacate that order and remand the cause with directions for the court to reconsider the issues presented and to test the evidence by the clear and convincing standard.

Document Info

Docket Number: No. 98CA1124

Citation Numbers: 989 P.2d 240

Judges: Criswell, Kapelke, Plank

Filed Date: 9/2/1999

Precedential Status: Precedential

Modified Date: 1/2/2022