parental rights / right to marry case

[Tom West]

As local governments become increasingly aggressive in
terminating parental rights, it occurs to me that here if anywhere
the Due Process clauses of the 5th and 14th amdts should kick in.

The basic meaning of these clauses is that there must be a trial
(in serious cases a jury trial) if government is to be permitted to
take away one's liberty or property. That means government has
to define the crime in advance, and then prove that you
committed the crime, before it can take away your liberty.

Now it seems to me obvious that liberty includes the right to get
married and raise one's legitimate children. Does it not follow that
government should have to put you on trial (with full right of
legal counsel, confronting witnesses, and a jury) and prove that
you committed some serious injury before it could deprive you of
your right raise your own children? And the law would have to
say in advance that termination of parental rights is one possible
punishment for the injury in question.

I am aware that in the area of family law, government has long
asserted the right, as parens patriae, of forcibly taking children
away from their parents without due process in the sense just
described. However, until the 1980s, I believe this right was
exercised very rarely in the case of married parents raising their
own children. Only in recent years have Child Protective Service
agencies routinely taken children out of the homes of their
married parents, not only on the basis of mere suspicion that
abuse may have occurred, but on the basis of suspicion that
abuse might occur at some point in the future.

The case quoted by Robin Charlow seems to be nothing new in
that respect. The court declares that "it would be naive to
assume a pedophile can maintain control day after day in a house
full of children" and therefore terminates parental rights.
Government does not have to prove that an injury has occurred;
its suspicion that an injury might occur is sufficient.

Isn't this exactly what we think--or used to think--is the difference
between the rule of law and despotism? Under the rule of law,
government must announce in advance what the rules are, so
you can know in advance what you must do to retain your
liberty. Under despotism, government may deprive you of your
liberty simply because it thinks you might commit, or might have
committed, a crime--in the case of child protective services law, a
crime that is often not even defined in the law. There was a recent
Massachusetts case where government attempted to terminate
the parental rights of a minister who had spanked his son. Yet
there is no law in Massachusetts that criminalizes spanking.

In the Gulag Archipelago (1:284), Solzhenitsyn lists some of the
laws that the Soviet government used most often against
"politicals": Suspicion of Espionage, Socially Dangerous
Element, Contacts Leading to Suspicion of Espionage.

In the case quoted by Charlow, the mother is deprived of the
liberty to raise their own children because of (in effect) Contacts
(i.e. with her husband) Leading to Suspicion of Possible Future
Child Abuse. Her husband's "thoughts" about abuse are
sufficient to deprive not only him but also her of their children.
Or should we say the law in question was Contacts with Socially
Dangerous Element?

Just a question from a political scientist who is no doubt naive
about what law means in our time.

Tom West

Thomas G. West
Professor of Politics, University of Dallas and
Senior Fellow, The Claremont Institute
1845 E. Northgate
Irving, TX 75062
972-721-5278