parental rights / right to marry case

[William Funk]

Tom West wrote:
>
> 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.

Any attempt to summarize the requirements of due process in two
sentences is bound to be incomplete, but here there is a serious
misconception about the Due Process Clauses.  First, the government can
take away your liberty even in the absence of any crime being committed.
That is, the Due Process Clause does not require a criminal act in order
to deprive someone of their liberty.  This is clearly the case in terms
of the "liberty" to engage in a number of professions, the "liberty" to
have the government not deprive you of some privilege incident with
destroying your reputation, as well as physical liberty (as in
involuntary mental commitments).  Second, it is equally clear, I think,
that the government cannot take your children away without affording you
due process.  Third, this due process can be satisfied by an
administrative hearing (that comports with the requirements of Matthews
v. Eldridge), as opposed to a trial (much less a jury trial).  As
administrative law buffs well know, one of the big issues is WHEN must
the administrative hearing take place, before or after the deprivation.
At the risk of overly simplifying, if there is an emergency (such as the
possibility of child abuse), the hearing to satisfy due process may come
after the child has been taken out of the home.  I have little doubt
that generally the state child welfare agencies are complying with these
norms.

Bill Funk
Lewis & Clark Law School