June 01, 2012

Father Who Lived Out of Country Did Not Abandon Child

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Idaho trial court improperly terminated father’s rights based on abandonment and default grounds. The father’s right to notice was violated and he had not willfully abandoned his child given his legal inability to visit as a foreign national or pay child support.

In re Doe, 2012 WL 1432619 (Idaho).

Daughter was removed from her mother when she failed to protect her children from physical and sexual abuse from an older half-sibling. Child’s father was residing in Mexico at the time and was a Mexican citizen.

Father spoke with an agency worker a few months after removal expressing his desire to be a part of her life and that he hoped he would reunite with the mother. At a subsequent case-planning meeting, the father agreed to the reunification plan with the mother.

Thereafter, the father made monthly phone calls to the agency caseworker to learn how the reunification plan was progressing. Approximately six months after the removal, the father indicated that he would like to obtain custody of his daughter if the mother could not complete her plan.

When the caseworker told the father that reunification with the mother was no longer viable, he contacted the Mexican consulate to obtain assistance. It took several months for the consulate to call him back. Eventually, the father obtained a positive home study from the Mexican public child welfare agency. Around this time, the Idaho agency filed to terminate the father’s parental rights. The trial court granted the petition.

The Idaho Supreme Court overturned the termination.

The supreme court wrote that the father’s parental rights were terminated by default despite the fact that he was not given adequate notice. Publication of notice in a local Idaho newspaper was not made to inform the father, even though his address was known in Mexico.

The trial court also improperly found the father had abandoned his daughter. There was no substantial evidence that the father willfully failed to support or maintain contact with his child. The father could not visit child. When he married the mother, he had been in the U.S. illegally and voluntarily left when he was picked up by immigration authorities. As such he could not come into the U.S. unless the mother petitioned for him as a spouse, which she did not do.

The findings regarding the father’s lack of financial support were also erroneous. There was no finding at any point regarding the amount of support the father could pay given his modest income of $70.30 a week and his need to contribute to support a household of extended family.

The supreme court further noted that even if there had been valid grounds for termination, the trial court’s best interests findings were in error. In a contest between a parent and a third party, the parent has a presumption that it is in the child’s best interest to be placed with them. The evidence below could not overcome the parental assumption. There was no allegation that the father ever abused or neglected his daughter. The father did everything the agency had asked him to do in the case. The caseworker’s contention that the child would be better off with the “luxuries” available in the U.S. was not a valid basis to find it was not in her best interests to be with her parent.

In reversing the order, the supreme court directed the agency to promptly place the child with her father.