Two Cases On Parental Rights

But what if the state is a negligent

July 30, 2003 in New Mexico Politics | Comments (0)

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Most parents support their children and would never sit idly by while the state took them away. But as two opinions by state appellate judges show, parental rights are not a simply determined by genetics.

The first opinion grew out of a wrongful death settlement three years ago in one of the UNM Hospital leukemia cases. The Albuquerque mother of a teenage boy who died there in 1986 got $463,000. She then asked the district court in Albuquerque to terminate the parental rights of the boy’s natural father, who claimed half the money.

The mother was able to show the court that this was a father in name only. The boy was two when they were divorced, and the father moved to California and never saw their son again until the boy was dying.

The father also failed to pay child support, despite court orders.
The New Mexico Court of Appeals affirmed the judge’s ruling that he was not entitled to any settlement money. Judge Lynn Pickard quoted state law and cases, plus an authority on English common law.

In that patriarchal tradition, a father was entitled to services and earnings of minor children because he was bound to support and educate them. The right grew out of the obligation. “New Mexico,” said the opinion, “does not look favorably upon parents who do not support their children.”

New Mexico also does not look favorably upon negligent mothers. The second opinion is from the State Supreme Court, involving a woman with a drinking problem who was the mother of two boys. A Silver City judge terminated the mother’s parental rights in her absence. The State Appeals Court threw it back, saying she was denied due process of law.
But the Supreme Court looked at the record in the case and reversed the Appeals Court. The record is described in painful detail by Chief Justice Petra Maes. For judges and social workers who deal with abused children, it’s a sadly familiar story.

The boys were four and six when the state first took them into custody after the mother tried to kill herself and them with carbon monoxide. She went into a program and responded to treatment, but the next three years were the typical roller coster ride of the depressed substance abuser. Not only that, the legal process of terminating her parental rights took 13 months. The boys were seven and nine when they finally were taken out of this destructive legal holding pattern.

And that’s not the end of it. The Supreme Court opinion notes in passing that while in state custody the boys suffered, “severe sexual abuse.” But there is no law to terminate the state’s in loco parentis rights, when the state is negligent as a parent, is there?