Interesting parental rights / right to marry case

[Andrew Koppelman]

I think that the two variables cited by Eugene ought to be irrelevant.

This story is ambiguous.  It's not entirely clear whether Andre and Itaisha
are the two foster children that Tonya tried to adopt in 1996, or whether
those were other children.  The court calls her the "adoptive mother", but
refers to the children as "foster children."  This matters, because the
standard of review is and should be different depending on whether Tonya's
adoption of Andre and Itaisha was complete at the time of her relationship
with George.

The state has a great deal of discretion in supervising adoptions, and can
deny adoption whenever, in its judgment, the children would do better
somewhere else.  Thus, if adoption were ongoing, the sort of judgment call
that's being described here, while debatable, seems to be the sort of thing
that's appropriately left to the social workers who are acquainted with the
parties, as of course we are not.  Reading the opinion as a whole, this
seems to be the case, so it's likely that the disposition in this case was
appropriate, or at least not an abuse of discretion.

The state's hurdle is a good deal higher if it's trying to terminate
parental rights that have, so to speak, vested -- and in that case, the
fact that Tonya is not the biological mother of her adopted children ought
to be irrelevant.  Adoptive parents are not second-class parents.  While
there have been a few cases (heavily criticized) in which the rights of
biological parents have overcome those of adoptive parents, the rights of
adoptive parents against the rest of the world (including the state) are,
to the best of my knowledge (family law experts please correct me if I am
wrong), identical with the rights of biological parents.

The court's opinion relies on the statute governing termination of parental
rights, rather than the adoption statute.  From this I gather that the
court regards the distinction I have just drawn as irrelevant.  That is
strange and troubling.

Assume that Tonya has completed her adoption of Andre and Itaisha, and that
she is legally their parent.

The court declares that "it would be naive to assume a pedophile can
maintain control day after day in a house full of children."  If the
court's holding is accepted, it entails that (1) a person who has molested
children in the past and/or has sexual fantasies may always have his
custody of his children terminated on that basis alone, even if the abuse
occurred before the children were born; (2) if a person of that description
marries a parent of (young?) children, the parent may have parental rights
terminated on that basis alone.  In both cases, the disability would seem
to last for quite a long time.  (The Court declares that episodes that
ended at least ten years earlier, when George was still a teenager, are
"not remote in time.")

If one moves from the court's general declaration to its enumeration of the
findings of the social workers and psychiatrists, the court's opinion would
imply that the family of any former pedophile may be brought under the
microscope of these worthies (at least at any time that is "not remote in
time," within the court's generous definition of that phrase) and that
parental rights may be terminated if the former abuser "has difficulty
dealing with his abuse issues" or "resists group therapy."

I can't imagine how these results could be reconciled with the parental
rights/ right to marry cases.  And I don't think that the problem would be
corrected if the disability were only imposed on child molesters who had
been tried and convicted.


At 10:33 AM 11/23/99 +0200, you wrote:
>        I just ran across an interesting case on parental rights and the
>right to marry (and tangentially religious freedom, though here I think that
>adds little to the parental rights / right to marry claim).  It's In re
>I.L., 1999 WL 1020746 (Iowa App. Nov. 10); here are a few excerpts.  I'd
>love to hear what people think.  Should it matter that George had never been
>charged or convicted, and disclosed his past offenses (which seem to have
>been at least seven years before) voluntarily?  If George and Tonya had
>biological children of their own, should his parental rights to those
>children have been severed on the same theory?
>
>
>  Tonya is the adoptive mother of Andre and Itaisha. She has reared three
> natural children of her own and has often served as a foster parent. In 1996,
> she sought to adopt two more of her foster children. In October of that same
> year, she met a man, George, and delayed the adoption process until after she
> married him several months later, so that he too could adopt the children.
> George was twenty-seven years old at the time of the marriage in January
1997,
> and Tonya was forty. Before they married, George revealed to Tonya he had
been
> the victim of sexual abuse as a child and was a sexual abuser of children
as a
> teenager.
>  A home study was conducted as part of the adoption process and George
> voluntarily disclosed to the social worker he had been a sexual abuser of
> children, although he was never charged or convicted. He admitted he
continued
> to have sexual thoughts about children, including Andre and Itaisha, but had
> not committed further abuse since he was seventeen. As a result, the foster
> children were removed. A no contact order with the foster children was
entered
> and George left the home in late February of 1997. Due to two violations of
> that order, Andre and Itaisha were also removed from Tonya's care on
March 14,
> 1997. A second no contact order issued involving Andre and Itaisha. In May of
> 1997, the children were adjudicated children in need of assistance (CINA).
>  The State filed a petition to terminate parental rights on July 25, 1998. On
> February 16, 1999, the juvenile court granted the petition under Iowa Code
> section 232.116(1)(e) (1997). The juvenile court based its termination
>order on
> the fact that Tonya knew George was a child sexual abuser at the time of
their
> marriage, but still allowed him to bathe and care for the children. She
seemed
> willing to assume the risk of her children being abused in order to continue
> her marriage. The court also stated Tonya and George either refused or
did not
> cooperate with services and Tonya did not perceive her children were at risk
> for sexual abuse if she continued her relationship with George in the family
> home. . . .
>
>  Along with the clandestine character and extent of George's abuse,
> Tonya's inability to recognize a potentially abusive situation places these
> children in a particularly difficult situation. Such lack of insight supports
> termination of parental rights. See In re C.C., 538 N.W.2d 664, 667 (Iowa
> App.1995) (finding mother's continuation of abusive relationship supported
> termination of her parental rights). Her therapist's report reveals Tonya
>lacks
> self-insight and may use denial as a coping mechanism. Her faith in George
>that
> he will not re-offend makes her less vigilant. She is at risk for making bad
> decisions about her children due to narcissistic traits and impulsiveness.
> Tonya has indicated she will not leave George or require him to leave her.
>. . .
>   We find meritless Tonya's claim that her
> children should be permitted to remain with her because her religion does not
> permit her to divorce her husband, despite the fact that he is an admitted
> pedophile and presents a risk to her children. Of course, fundamental
> constitutional interests inhere in family and parenting circumstances.
> Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999). However, parental
> interests in family integrity are not absolute and may be forfeited by
certain
> conduct. Id.; see also In re C.C., 538 N.W.2d at 666. As mentioned above,
> we have held that continued involvement in an abusive relationship may
require
> termination of parental rights. See In re C.C., 538 N.W.2d 664; see also
> In re L.B., 530 N.W.2d 465, 468 (Iowa App.1995) (finding children could not
> be returned to mother because she failed to recognize abuser's presence was a
> danger). . . .


________________________________________

Andrew Koppelman
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu
________________________________________