The Crab Fisherman and His Children: a Constitutional Compass for the Non-offending Parent in Child Protection Cases

• Jurisdiction: Alaska,United States
• Publication year: 2007
• Citation: Vol. 24

§ 24 Alaska L. Rev. 173. THE CRAB FISHERMAN AND HIS CHILDREN: A CONSTITUTIONAL COMPASS FOR THE NON-OFFENDING PARENT IN CHILD PROTECTION CASES

Alaska Law Review
Volume 24, No. 2, November 2007
Cited: 24 Alaska L. Rev. 173

THE CRAB FISHERMAN AND HIS CHILDREN: A CONSTITUTIONAL COMPASS FOR THE NON-OFFENDING PARENT IN CHILD PROTECTION CASES

ANGELA GREENE ^[*]

I. INTRODUCTION: THE CRAB FISHERMAN AT SEA

II. A REVIEW OF UNITED STATES SUPREME COURT CASE LAW: RIGHTS OF PARENTS IN CHILD PROTECTION CASES

III. DEFINING THE NON-OFFENDING PARENT: OVERVIEW OF ALASKA LAW AS COMPARED TO OTHER STATES

IV. ANALYSIS OF VARIOUS STATE APPROACHES TO THE NON-OFFENDING PARENT AND A COMPARISON TO ALASKA LAW

A. The Theory that Trial Court Jurisdiction Attaches to the Child: Misguided Dicta from Alaska and Michigan that Does Not Apply to True Non-Offending Parent Cases.

B. The Simple and Constitutional System: A State Does Not Have the Power to Interfere with the Family When a Fit Parent is Available to Care for the Child

C. The Constitutionally Dubious Compromise: States Allowing Adjudication Based on the Acts of One Parent, but Drawing the Constitutional Line at Custody

D. The Unconstitutional Solution: No Protection at all for the Fit Parent

V. SO WHAT ABOUT OUR ALASKA CRAB FISHERMAN: HOW TO PROTECT THE CHILD AND THE CONSTITUTIONAL RIGHTS OF THE PARENTS

VI. CONCLUSION

FOOTNOTES

Parents have a constitutional right to raise their children without interference from the state. It is also well settled that the state may step into a family and take custody of a child if it finds that a child's welfare is in danger. Although an offending parent found to be unfit by a court ruling could have his or her child taken away, states differ as to what safeguards should be afforded to non-offending parents in child custody cases. This Article argues that Alaska, which has unsettled law in this area, should adopt rules that protect the rights of non-offending parents with minimal interference from the state. In order to help determine what rules are appropriate, this Article describes different approaches states have taken with regard to custody and non-offending parents and it advocates for laws that protect the interests of non-offending parents.

[*pg 174]

I. INTRODUCTION: THE CRAB FISHERMAN AT SEA

There is no issue more important to the courts than the mandate to protect children from abusive or neglectful parents. Yet, the need to balance that compelling interest against the fundamental rights of parents is a constitutionally confused area of the law. It gets even more complicated when a fit, non-offending parent presents himself to authorities and claims he is ready to care for the child, even though the other parent may have neglected or abused the child. At this point, the judge, lawyers, and children's services workers are left in a constitutional quandary: does the court have any authority to intervene when a fit parent is present? If so, when does that authority begin and end?

For example, ^[1] suppose you spend much of the winter working on the crew of a crab-fishing boat. You sail on the Bering Sea out of Dutch Harbor, Alaska as part of the reality show The Deadliest

[*pg 175] Catch. ^[2] Although you are gone for months at a time, your wages from this work support your family living in Anchorage for the whole year. Before you left your home in Anchorage, your wife and two children were fine, although your marriage was a bit rocky due to your extended absences. However, to your knowledge, your wife is a good mother to your children while you are gone.

Three months into your work on the Bering Sea, you receive word from a social worker via satellite phone that your wife has been arrested for driving while intoxicated with the children in the car, and she was coming from her abusive boyfriend's house. She had a black eye and was too intoxicated to give the names of relatives or friends who were able to take the children, so the social worker placed the children in an emergency shelter in Anchorage.

The social worker also notifies you that your children are now in state custody, because the Office of Children's Services (OCS) filed a petition in state court to have them declared in need of aid. ^[3] The temporary custody hearing authorizing the placement occurred without your participation, because weather and communication problems inherent in the region made it impossible to contact you in time for the hearing. ^[4]

You protest, claiming that you are perfectly capable of caring for the children because your mother can take them until you get off the boat. The social worker does move the children to their grandmother's house after this conversation, but OCS retains state custody ^[5] and continues to pursue a formal adjudication against you and your family, in part because you cannot physically care for the children yourself as you are still on the crab-fishing boat.

Incensed, you interrupt your season and pay your way from the Bering Sea to Anchorage to retrieve your children from the state, assuming that once you explain the situation to the social worker yourself, this will be over and the state will leave your family alone. You soon discover it is not that simple.

[*pg 176]

After a week of travel, you arrive at the Anchorage OCS, identification in hand, and request your children back. The social workers refuse to give them to you, citing the temporary custody order issued by the court, and instead allow you only supervised visits at the OCS office. The social worker says she first has to do a background check before she can let you see your kids without supervision, although she cannot tell you how long that will take.

Two days later you have a court date, where you are formally advised of the petition and appointed a lawyer. ^[6] You explain to the judge that you can care for your children and want them back home with you, naively assuming that he will understand your position, release the children to you, and allow you to get on with your life. Instead, the court continues custody, leaving visitation at the discretion of OCS, and sets the adjudication date for four months in the future. ^[7] Meanwhile, during those four months, you will be expected to participate in a case plan with OCS designed to reunite your family. ^[8] You are stunned and begin to wonder how the court can do this since you are the father, can care for the children, and did not do anything to neglect or otherwise endanger them.

In the language of child protection, the issues in this scenario revolve around the constitutional rights of the non-offending parent. The legal question is whether a court can adjudicate these children as in need of aid when a fit, non-offending parent is willing and able to care for them, notwithstanding the acts of the offending parent. ^[9] If adjudication is not permissible, then what steps can the state take to administer its compelling interest in the safety of the children put at risk by one parent, while still balancing the other parent's constitutional rights?

To make sense of this scenario and to answer these questions, this Article will first give an overview of the relevant United States Supreme Court case law governing the right to parent in order to argue the unconstitutionality of adjudicating a child as in need of aid when a fit and willing parent is present. The Article will then

[*pg 177] survey the different state approaches to this problem, with special comparison to Alaska law. Finally, it will present a model solution for our crab fisherman that protects the child and the constitutional rights of the fit parent. This Article seeks to provide a logical conceptual framework for practitioners, judges, and state legislators when addressing the issue of non-offending parents in child protection proceedings.

II. A REVIEW OF UNITED STATES SUPREME COURT CASE LAW: RIGHTS OF PARENTS IN CHILD PROTECTION CASES

It is settled law that parents have a fundamental right to parent their children without interference by the state. This fundamental right is protected by the liberty interest inherent in the Due Process and Equal Protection clauses of the Fourteenth Amendment and by the Ninth Amendment's grant of residual liberties to the people. ^[10] As a matter of constitutional law, the government may not restrict fundamental rights unless it demonstrates a compelling interest. ^[11] In the relationship between parent and child, the state's compelling interest exists if the parent is unfit to make decisions regarding his or her own children. ^[12] Without a showing that a parent is unfit, the state normally has no justification to interfere with the family unit. ^[13]

Unfitness cannot be presumed by the parent's circumstances; the state must make an individualized assessment of the parent's ability to care for his children. ^[14] Thus, the fact that one parent is unfit does not alter the state's burden to prove the other parent is also unable to care for the child before it may interfere in the

[*pg 178] family. ^[15] The United States Supreme Court has made clear that when both parents are available for their children, the state must prove that each parent is unfit before it may take custody of the children or otherwise interfere with the family. ^[16] According to the Stanley Court, the individualized assessment of each parent is necessary to prevent the arbitrary...