STATE OF UTAH, IN THE INTEREST OF K.J., A PERSON UNDER EIGHTEEN YEARS OF AGE. A.J., Appellant, υ. T.M. AND L.M., Appellees.
No. 20111113-CA
THE UTAH COURT OF APPEALS
October 3, 2013
2013 UT App 237
Second District Juvenile, Ogden Department The Honorable Janice L. Frost No. 1039586 Gary W. Barr, Attorney for Appellant Steven C. Russell, Attorney for Appellees Martha Pierce, Guardian ad Litem
No. 20111113-CA
Filed October 3, 2013
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGE CAROLYN B. MCHUGH concurred. JUDGE WILLIAM A. THORNE JR.1 dissented, with opinion.
CHRISTIANSEN, Judge:
¶1 A.J. (Mother) appeals from the juvenile court‘s order terminating her parental rights with respect to her daughter, K.J. Mother asserts that the juvenile court erred in determining that the
BACKGROUND
¶2 K.J. was born in April 2010 to Mother.2 In July 2010, Mother moved with her brother, sister-in-law, and K.J. to Ogden, Utah. N.B. (Father) is K.J.‘s natural father. At the time of trial, Father had seen K.J. only one time, had never made visitation arrangements, had not financially supported K.J., and had never attempted to assert his parental rights.3
¶3 On July 29, 2010, K.J. was taken by ambulance to an emergency room due to difficulty breathing and lethargy. X-rays revealed four broken ribs, a broken collarbone, and both old and new indications of chronic bilateral subdural hematomas and retinal hemorrhaging. K.J. was taken by helicopter to Primary Children‘s Medical Center (PCMC) where additional tests indicated chronic subdural fluid collection, a more recent subdural hemorrhage, and healing rib and collarbone fractures. The examining doctor at PCMC reported that the fractures were approximately two to three weeks old and that the likely cause of K.J.‘s injuries was inflicted trauma.
¶4 On August 2, the juvenile court signed a warrant ordering K.J. to be placed in the custody of the Division of Child and Family
¶5 In its September 1, 2010 order adjudicating K.J. as abused and neglected, the juvenile court ordered Mother to contact the Office of Recovery Services (ORS) to arrange for and pay child support and to complete a child and family plan (the Plan) that required, among other conditions, that Mother maintain stable and suitable housing and stable employment. The juvenile court established reunification with Mother as the primary permanency goal, with adoption as a concurrеnt permanency goal in the event that Mother “fail[ed] to meet the goals of a treatment plan or follow [court] orders.” The court ordered the Division to provide reunification services to Mother until the time set for the permanency hearing. K.J. was thereafter placed in foster care with appellees T.M. and L.M. (Foster Parents). A permanency hearing was set for January 20, 2011, which was subsequently rescheduled for March 21, 2011. During this time, Mother completed most of the goals outlined in the Plan, but she was unable to obtain stable employment or suitable housing. Mother also failed to comply with the juvenile court‘s order to contact ORS to arrange for and pay child support.
¶6 At the March 21, 2011 hearing, the State submitted a verified petition to terminate Mother‘s and Father‘s parental rights with
¶7 Following the termination trial on November 3, 2011, the juvenile court entered findings of fact and conclusions of law and ordered Mother‘s and Father‘s parental rights with respect to K.J. terminated. Mother appeals the termination of her parental rights.
ISSUES AND STANDARDS OF REVIEW
¶8 Mother first claims that the juvenile court erred in determining that the timelines established by the Act precluded additional time for reunification of K.J. with Mother. We review the juvenile court‘s interpretation of the Act for correctness. In re S.F., 2012 UT App 10, ¶ 24, 268 P.3d 831.
¶9 Mother also asserts that the juvenile court‘s termination of her parental rights is against the clear weight of the evidence. We review a juvenile court‘s determinations that grounds for termination exist and that termination is in the best interest of the child “for clear error, reversing only if the result is ‘against the clear weight of the evidence or leave[s] the appellate court with a firm and definite conviction that a mistake has been made.‘” In re A.K., 2012 UT App 232, ¶ 14, 285 P.3d 772 (alteration in original) (quoting In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435). “When a foundation for the [juvenile] court‘s decision exists in the evidence,
ANALYSIS
I. The Juvenile Court Did Nоt Err In Determining that the Juvenile Court Act Did Not Provide Additional Time for Reunification.
¶10 First, Mother argues that the Act‘s timelines governing the time for decision on a termination petition and limiting the duration of reunification services are applicable only when termination proceedings are initiated by the Division and not when a third party files a termination petition. She thus claims that the juvenile court erred by applying the timelines set forth in the Act, specifically
A. The Act‘s Timelines Were Applicable in This Proceeding.
¶11 Mother argues that because
¶12 “When interpreting a statute... [w]e employ plain language analysis to carry out the legislative purpose of the statute as expressed through the enacted text.” See Richards v. Brown, 2012 UT 14, ¶ 23, 274 P.3d 911. “Where a statute‘s language is unambiguous
¶13 First, the plain language of the Act does not restrict the timeline for decision on a termination petition only to petitions filed by the Division. The Act provides, “Any interested party, including a foster parent, may file a petition for termination of the parent-child relationship with regard to a child.”
¶14 Second, the shorter timelines imposed by the Act on the underlying reunification proceedings are applicable when a private termination petition has been filed because the reunificаtion timelines operate independently of the termination proceeding.6 “The time period for reunification services may not exceed 12
¶15 Because the plain language of the Act does not provide for different termination or reunification timelines when a third-party termination petition has been filed, the juvenile court did not err in concluding that the statutory timelines were applicable to this proceeding.
B. The Act Did Not Allow Additional Time for Reunification.
¶16 Mother next assеrts that even if the statutory timelines applied to her reunification efforts, there was nevertheless time remaining to reunify K.J. with Mother at the time of trial. Mother argues that
¶17 However, the juvenile court did not base its determination that no time remained for reunification on the time limit for adjudicating a termination petition. Rather, the juvenile court found that “permanency for a child of this age should be achieved within [eight] months with the possibility of another six months,” consistent with the reunification timelines provided in
¶18 Because K.J. was less than thirty-six months old when she was removed from the home and more than fourteen months had passed since her removal, the juvenile court did not err in determining that the Act precluded continued reunification efforts.
II. The Juvenile Court‘s Termination of Mother‘s Parental Rights Is Not Against the Clear Weight of the Evidence.
¶19 Mother next argues that the juvenile court‘s decision to terminate her parental rights was against the clear weight of the evidence presented at trial. A court may terminate parental rights with respect to a parent if it finds that any one of the circumstances enumerated in
¶20 Mother also challenges the juvenile court‘s best interest determination, arguing that the juvenile court misunderstood the custody arrangement proposed by the Division. See
A. The Juvenile Court‘s Determination that Mother Failed to Adjust Parentally Is Not Against the Clear Weight of the Evidence.
¶21 Mother argues that the juvenile court‘s determination that she had failed to adjust parentally is against the clear weight of the evidence. The juvenile court “may terminate all parental rights with respect to a parent if the court finds . . . failure of parental adjustment.”
¶22 Mother argues that the juvenile court failed to appropriately
¶23 First, Mother argues that the juvenile court was required to weigh her past conduct with her present abilities when determining whether she had failed to adjust parentally and that, considering the totality of the evidence, the juvenile court‘s finding of failure of parental adjustment is against the clear weight of the evidence. “In termination cases, the juvenile court must weigh a parent‘s past conduct with her present abilities.” In re B.R., 2007 UT 82, ¶ 13. However,
if a parent has demonstrated some improvement in parenting ability but not a strong likelihood that the parent can provide a proper home for the child in the
very near future, after a long period of separation, a history of problems and failure to remedy, and deterioration of the relationship between the child and parent, this court should not overturn a court‘s order terminating parental rights.
Id. (citation and internal quotation marks omitted).
¶24 Here, the juvenile court found that Mother had failed to comply substantially with the Plan, which was evidence of failure of parental adjustment. See
¶25 We do not agree that the juvenile court failed to properly weigh Mother‘s past conduct with her present abilities. While the juvenile court considered Mother‘s failure to comply with the Plan as evidence of her failure of parental adjustment, it also considered her circumstances at the time of the trial in making its
¶26 Mother also argues that in considering the evidence of parental adjustment, the juvenile court improperly shifted the burden of proof to her. While the petitioner bears the ultimate burden of proving the grounds for termination by clear and convincing evidence, see
¶27 Mother claims that Foster Parents presented no evidence that Boyfriend‘s home was unsuitable or that Boyfriend was unwilling to support Mother and K.J. She argues that the juvenile court therefore improperly imposed the burden of proof on her. We disagree. As discussed above, the juvenile court concluded that Mother‘s failure to comply with the Plan presented evidence of failure of parental adjustment. The evidence presented at trial demonstrated that Mother had failed to obtain stable employment or suitable housing and otherwise lacked the resources to care for K.J. Given this evidence, Mother bore the burden of demonstrating that her efforts toward finding alternate means of providing for K.J., rather than those prescribed by the Plan, were adequate. See id. However, the juvenile court did not find credible the testimony at trial that Boyfriend was willing and able to support Mother and K.J. or that Boyfriend‘s home was suitable. See supra ¶ 24. Given the evidence supporting the juvenile court‘s determination, we cannot
B. The Juvenile Court‘s Determination that Mother‘s Failure to Pay Child Support Was Evidence that She Was Unfit Is Not Against the Clear Weight of the Evidence.
¶28 Mother argues that the juvenile court‘s determination that she was unfit was against the clear weight of the evidence because it was based on a flawed understanding of Mother‘s obligation to provide financial support.13 The juvenile court “may terminate all parental rights with respect to a parent if the court finds . . . that the parent is unfit or incompetent.”
¶29 Mother argues that it was impossible for hеr to provide financial support for K.J. because she was illegally in the country and thus unable to work legally. She argues, alternatively, that the juvenile court failed to consider whether Mother was “financially able” or “capable” of providing support, as required by statute.
¶30 First, Mother argues that the common law doctrine of impossibility excuses her failure to pay child support as required
¶31 We do not decide whether the impossibility exception is applicable to Mother‘s requirement to pay child support, because Mother challenges this requirement of the Plan for the first time on appeal. Even prior to the juvenile court‘s adjudication of K.J. as abused and neglected, Mother, represented by counsel, agreed in mediation to cooperate with the Division in developing a service plan as described in the State‘s verified petition, which included the stable income, suitable housing, and child support requirements. When the Plan was adopted, Mother agreed that she had assisted in its development and agreed to actively participate in the Plan. There is nothing in the record before this court indicating that Mother or her counsel ever objected to the employment and child support requirements of the Plan or requested that the juvenile court order the Plan to be modified to effect her compliance. Mother failed to comply with these provisions of the Plan from the time of its entry until the time of the termination trial. Under these circumstances, Mother cannot now argue on appeal that her compliance with the Plan was impossible, because she never raised this issue before the juvenile court and therefore has not preserved this issue for appellate review.14 “‘[T]o
¶32 Mother further argues that because she was not capable of providing child support as a result of her illegal status, the juvenile court improperly considered her failure to do so as evidence of unfitness. In evaluating whether a parent is fit, the court must consider a parent‘s “repeated or continuous failure to provide the child with adequate food, clothing, shelter, education, or other care necessary for the child‘s physical, mental, and emotional health and development by a parent or parents who are capable of providing that care.”
¶33 Mother argues that because she is in the country illegally, she was unable to obtain legal employment and was therefore incapable of paying child support. However, the juvenile court found that Mother had failed to contact ORS to establish child support and that during the times when Mother was employed, she did not pay any child support. The juvenile court‘s determination that her failure to provide financial suрport for K.J. was evidence of unfitness under
¶34 Because the juvenile court properly considered Mother‘s failure to pay child support as evidence that she was unfit pursuant to
C. The Juvenile Court‘s Determination that Mother Would Not Have Been Capable of Exercising Proper and Effective Parental Care in the Near Future Is Not Against the Clear Weight of the Evidence.
¶35 Mother next argues that the juvenile court‘s determination that she would be unable to exercise proper and effective parental care in the near future is against the clear weight of the еvidence. The juvenile court may terminate all parental rights with respect to a parent if the court finds
that the child is being cared for in an out-of-home placement under the supervision of the court or the division[,] . . . that the parent has substantially neglected, wilfully refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in an out-of-home placement[,] . . . [and] that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future . . . .
¶36 Mother argues that the juvenile court‘s factual finding that no evidence was presented that Mother is capable of parenting her child is unsupported by any evidence, and therefore against the clear weight of the evidence. “To overturn a finding of fact, we require the appellant to marshal all the evidence in support of the finding and then demonstrate that the evidence is legally insufficient to support the finding when viewing it in a light most favorable to the court below.” See In re K.F., 2009 UT 4, ¶ 44, 201 P.3d 985 (citation and internal quotation marks omitted). Mother also contends that the juvenile court improperly shifted the burden to her to demonstrate that she was capable of parenting her child. See
¶37 First, the juvenile court found that “no evidence was presented that [Mother] is capable of parenting the child.” Mother misreads the juvenile court‘s findings as stating that “no evidence was presented on the matter of the [Mother]‘s parenting ability” and argues that she is therefore not obligated to marshal the evidence in support of the juvenile court‘s findings. See Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (explaining appellant‘s marshaling burden when no evidence supports the challenged finding). However, the juvenile court‘s other factual findings demonstrate that substantial evidence was presented as to Mother‘s parenting ability but that the juvenile court found that none of the evidence demonstrated that Mother was presently capable of parenting her child in practice, rather than in theory. Accordingly, the juvenile court found that the evidence demonstrated that Mother was not capable of successfully parenting K.J. on her own.
¶38 Having determined that Mother is incorrect that no evidence supported the juvenile court‘s factual finding, we decline to review the challenged finding further because Mother has failed to
¶39 Mother next argues that in weighing the evidence of Mother‘s parental ability, the juvenile court improperly shifted the burden of proof to Mother. While the petitioner bears the ultimate burden of proving the grounds for termination by clear and convincing evidence, see
¶40 Mother argues that juvenile court improperly placed the burden of proof on her to provе that she was capable of exercising proper and effective parental care for K.J. because Foster Parents presented no evidence that she was incapable of exercising such care. However, the juvenile court found that the evidence presented showed that Mother did not fully understand K.J.‘s needs and lacked the resources to meet those needs in any case. The juvenile court concluded, based on the testimony and evidence presented at trial, that Mother would not succeed at parenting on her own. Mother then had the burden to show that her parenting skills were adequate to persuade the court that the evidence did not prove that she was incapable of caring for K.J. See id. While
In re K.J.Mother presented the testimony of her Division-assigned caseworker and peer parent to demonstrate her parenting abilities, the juvenile court found that Mother had never been able to put her parenting ability into practice due to her living situation and that her parenting ability was therefore only theoretical. Given the evidence supporting the juvenile court‘s determination, we cannot say that the juvenile court improperly placed the burden of proof.15
¶41 We conclude that Mother has nоt demonstrated that the juvenile court‘s factual findings were erroneous or that the juvenile court improperly shifted the burden of proof. Therefore, we conclude that the juvenile court‘s determination that Mother would not be capable of exercising proper and effective parental care in the near future is not against the clear weight of the evidence.
D. The Juvenile Court‘s Determination that It Would Be in K.J.‘s Best Interest to Be Free for Adoption by Foster Parents Is Not Against the Clear Weight of the Evidence.
¶42 Finally, Mother challenges the juvenile court‘s determination that it would be in K.J.‘s best interest to terminate Mother‘s parental rights, freeing K.J. for adoption by Foster Parents. “[I]f a parent is found to be unfit or incompetent . . . the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.”
¶43 We disagree with Mother‘s characterization of the juvenile court‘s best interest determination. The juvenile court concluded that the Division‘s plan for placement of K.J. “contemplates custody to the maternal grandmother, if not in law, in fact.” (Emphasis added.) The juvenile court recognized that Mother would have custody of K.J. but determined that because Mother was unable to care for K.J., she would be completely dependent upon the maternal grandmother under the Division‘s plan. Thus, the juvenile court‘s conclusion that the Division‘s placement plan contemplated custody to the maternal grandmother “in fact” is merely a recognition of Mother‘s dependence on the grandmother under the Division‘s placement plan. Because Mother does not otherwise challenge the sufficiency of the evidence underlying the juvenile court‘s best interest determination and we are not left with “a firm and definite conviction that a mistake has been made,” we decline to overturn the juvenile court‘s best interest determination. See In re A.K., 2012 UT App 232, ¶ 14, 285 P.3d 772 (citation and internal quotation marks omitted).
CONCLUSION
¶45 We affirm the termination of Mother‘s parental rights with respect to K.J.
THORNE, Judge (dissenting):
¶46 I respectfully dissent from the majority‘s decision. I disagree with the majority‘s determinations regarding the juvenile court‘s conclusion that Mother has failed to accomplish the necessary parental adjustment required by the applicable section of the Utah Code and further disagree that it has been adequately demonstrated that she is an unfit parent.
I. The Juvenile Court‘s Parental Adjustment Determination
¶47 The juvenile court determined that Mother had failed to parentally “adjust” based on her inability or failure to secure stable employment or suitable housing. Additionally, the juvenile court was troubled that her living situation with Boyfriend did not evidence stability. Although Mother‘s employment and housing situation are far from ideal, they are not, in my opinion, evidence of failure of parental adjustment in this matter or sufficient justification for terminating the natural parent-child relationship.
“Failure of parental adjustment” means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts
made by the Division of Child and Family Services to return the child to that home.
¶48 Here, K.J. was placed in the custody of the Division based upon the juvenile court‘s adjudication of K.J. as abused and neglected. The Plan the juvenile court adopted included multiple requirements; many focused on improving Mother‘s general parenting issues and reducing the risk of future abuse and neglect of K.J. In particular, the Plan required Mother to complete (1) an age appropriate parenting course; (2) an anger management course and follow all recommendations; and (3) a mental health evaluation and follow all recommendations. The Plan also prohibited Mother from using physical discipline on the child. After trial, the juvenile court determined that Mother had completed a parenting course through the peer parent program, submitted to a mental health assessment and participated in individual therapy following the recommendations of the assessment, and completed an anger management course. By timely completing all of the Plan‘s requirements designed to address Mother‘s parenting deficiencies, Mother has for all intents and purposes substantially corrected the very circumstances, conduct, and conditions that led to K.J.‘s placement outside of Mother‘s home. Indeed, the juvenile court acknowledged that Mother had complied with the majority of the sеrvice plan except for two factors—stability of income and housing—both of which are unrelated to the reasons for the child‘s removal.17 Furthermore,
¶49
¶50 Moreover, given Mother‘s immigration status, the Plan‘s requirement that Mother obtain employment and essentially procure independent housing is effectively designed for failure as it is legally impossible for Mother to comply with either of these requirements.19 “[U]nder federal immigration law, only immigrant aliens and nonimmigrant aliens with special permission are entitled to work.” Plyler v. Doe, 457 U.S. 202, 240 n.6 (1982) (Powell, J., concurring) (citing 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure, §§ 1.34a., 1.36, 2.6b (1981)); see also
¶51 Here, Mother had no means of achieving the financial requirements of the Plan, and it is unjust to implement a plan that precludes a parent‘s compliance. Such a plan specifically puts Mother at risk of losing her child and puts the immigrant population in particular risk of losing their children, based primarily on their illegal status and an inability to lawfully obtain stable employment and housing despite any efforts towards or demonstration of рarental adjustment. In effect, the juvenile court‘s termination determination was based on Mother‘s immigration status in that Mother cannot legally obtain employment and acceptable housing due to her status as an illegal resident. Indeed, several other courts around the country have considered the relevance of illegal status, with the majority concluding that illegal status and deportation are not in themselves grounds for the termination of parental rights. See In re M.M., 587 S.E.2d 825, 832-33 (Ga. Ct. App. 2003) (concluding that the evidence was insufficient to terminate a Mexican‘s parental rights when the basis was the father‘s illegal status in this country and the possibility that he could be deported); In re Angelica L., 767 N.W.2d 74, 94-96 (Neb. 2009) (concluding that the evidence was insufficient to terminate a Guatemalan‘s parental rights on the basis of twice failing to provide a child with adequate medical care and subsequent deportation on the basis of living illegally in this country); In re E.N.C., 384 S.W.3d 796, 805, 806 n.13 (Tex. 2012) (determining that the mere threat of deportation resulting from an unlawful act does not in itself establish endangerment and providing a summary of court decisions considering illegal status and deportation in parental rights termination proceedings).
¶52
The overarching question in a termination proceeding is not whether the child has a model parent, or even whether that parent is presently capable of taking his or her child back in custody, but is instead whether the natural parent-child
relationship has been irretrievably damaged as a result of the parent‘s unwillingness or inability to care for the child—i.e., that the continuation of the natural parent-child relationship, as it presently exists with the child in the custody of the State, is causing or is likely to cause that child serious harm.
In re C.J.V., 2013 WL 3655806, at *5 (Dillard, J., concurring specially) (citation and internal quotation marks omitted).
¶53 To permit state interference based on a parent‘s financial ability also disproportionately discriminates against single-parent families. A large share of single-parent families live at or below the poverty level when compared to all other families. Jason M. Merrill, Note, Falling Through the Cracks: Distinguishing Parental Rights from Parental Obligations in Cases Involving Termination of the Parent-Child Relationship, 11 J.L. & Fam. Stud. 203, 210 (2008) (citing Barbara R. Rowe & Kay W. Hansen, Child Support Awards in Utah: Have Guidelines Made a Difference?, 21 J. Contemp. L. 195, 195 (1995)); see also id. (“Nationally, it is much more likely for children living in single parent households to live in low-income families.” (citing Rhode Island Kids Count, 2008 Rhode Island Kids Count Factbook 10-11 (2008) (citing national statistics regarding single-parent families from the 2006 U.S. Census Bureau American Community Survey))). Moreover, 63% of Hispanic/Latino children live in low-income families. Martin Westerman, The Interplay of Poverty and Child Welfare, The Connection (Nat‘l Court Appointed Special Advocate Ass‘n), Fall 2006, at 7, 10. Mother, a young single-parent illegal immigrant, is severely limited financially, and it is patently unfair and unjust to terminate her parental rights based on her poverty. This is especially true given the fact that Mother has corrected the parenting issues that instigated the removal of K.J. from Mother‘s care.
¶54 As detailed above, I would hold that the juvenile court erred by basing its parental adjustment determination on factors not in Mother‘s control and not directly related to the reason for removal
II. The Juvenile Court‘s Unfit Parent Determination
¶55 I also disagree with the majority‘s determination that the juvenile court properly relied upon Mother‘s failure to pay child support as evidence that she was unfit pursuant to
¶56 Under
¶57 As such, if Mother is able to provide for her child‘s needs by whatever legal means are available to her, she should not be deemed unfit simply because she is personally unable to provide for the support of her child. As a result, I would remand the case to the juvenile court to consider all the factors—not just her failure to pay child support to ORS—relevant to determine whether Mother is able to secure the resources required to provide care for her child. Being an illegal immigrant and poor should no longer provide a legitimate basis for permanently depriving a child of his or her parent or parents and replacing them with a more financially-advantaged substitute. This is not a case where the state has decided that a parent is beyond redemption; this is a private action by people of means seeking to claim a child.
¶58
III. Summary
¶59 The juvenile court found that Mother had complied with the Plan‘s requirements that were directly related to the problems that necessitated the original removal. It was not, therefore, proper for the court to base its failure of parental adjustment decision on requirements unrelated to the problems which caused the initial removal. Additionally, the court erred by failing to consider all of the circumstances related to whether Mother is able to provide for her child. The outcome of this case is not affected by the application of the Act‘s timelines, and it is improper for this court to consider that issue. I dissent and would remand to the juvenile court for further consideration.
20111113-CA
2013 UT App 237
Notes
The caseworker, Christina Duke, testified at the terminatiоn hearing that it is in K.J.‘s best interest that the court return custody and reunify Mother and the child subject to conditions. The conditions included a slow transition of the child into Mother‘s care in the United States before having Mother and the child move to Mexico to live with K.J.‘s maternal grandmother. The caseworker‘s recommendation that Mother and the child move to Mexico appears to be based on the stable family support—both emotional and financial—available to Mother in Mexico. The caseworker further testified that Mother‘s current home was appropriate and that she believed that the child would be safe with Mother. Specifically, the caseworker responded, “[Y]es. I think so,” to the question, “If [Mother] had her own apartment and it was just [Mother], her child and then [K.J.], do you think [K.J.] being returned to [Mother] with just her other child there, that [K.J.] would be safe in that environment?”
In re C.J.V., No. A13A0792, 2013 WL 3655806, at **5-6 (Ga. Ct. App. July 16, 2013) (Dillard, J., concurring specially) (emphasis and footnotes omitted) (emphasis added).In other words, the mother is really, really poor. . . . Indeed, the notion that parental rights can be terminated, in part, because a parent has failed to secure independent housing, stable employment, or work on ‘vocational rehabilitation’ (or the like) is not only patently unconstitutional but morally repugnant—as such “goals,” inter alia, disproportionately discriminate against those who are socioeconomically disadvantaged. To be sure, securing independent housing, stable employment, and furthering one‘s job training or education are commendable goals, and there is nothing inherently wrong with the government encouraging the citizens it serves to better their lives. What the government is not entitled to do, regardless of any appаrent statutory authority for doing so, is to force some generalized, bureaucratic, Orwellian notion of parenting onto citizens who have temporarily lost custody of their children as a precondition to regaining custody of those children. Indeed, I find it deeply troubling that both the trial court and dissent justify the termination of the mother‘s parental rights, in part, because she has moved from place to place, lived with different people, depended on others for financial support, and failed to provide toys for her children. The State has no right to irrevocably sever the natural parent-child relationship simply because a parent is incapable of providing her children with an idyllic middle-class lifestyle. . . . The State‘s primary goal must be to maintain and preserve the natural parent-child relationship, not to act as a clandestine adoption agency. . . . An order terminating parental rights is the death penalty of civil cases, and this Court should start treating it as such.