Monday, December 19, 2011

Iraq War Veteran, Fit Father Has Parental Rights Terminated

by Robert Franklin, Esq.

A veteran of the Iraq war has had his parental rights terminated despite having in no way wronged his child or its mother. Read about it here (Booneville Democrat, 12/8/11).

The facts of the case are straightforward. Edward Glover served in the U.S. armed services. He was deployed to Iraq. His wife, Michelle gave birth to a child, E.G. in November of 2008. While Edward was serving abroad, Michelle took up with one Maliki Raheem who had a history of domestic violence. In April, 2009, it came to the attention of the Arkansas Department of Human Services that E.G. had been severely abused by Raheem. Here is how the dissenting judge of the Arkansas Court of Appeals described the child’s injuries.

The abuse was severe: E.G. had scalding on his chest and abdomen, bruising, blood inside his eyes, head injuries, perforation of his stomach, a liver contusion, three rib fractures, bilateral retinal hemorrhages, bruising around the eyes and scalp consistent with trauma, a possible lung contusion, and burns to the abdomen, shoulder, right thigh, and left scrotum.

Edward Glover obtained emergency leave and returned home, but was sent back to Iraq 10 days later. Glover remained deployed oversees while legal proceedings played out. The ADHS of course took his son into foster care and eventually succeeded in terminating Michelle’s parental rights. At all but two hearings, Glover was neither present in person nor represented by counsel.

Irrespective of the fact that Glover had done nothing wrong and was never accused of any form of wrongdoing toward anyone, the trial court, at the request of ADHS, terminated Glover’s parental rights and the Court of Appeals affirmed the ruling. Indeed, if there was a claim by anyone at any time that Glover had ever in his life done anything to indicate unfitness as a parent, neither the trial nor the appellate court mentioned it.

So how is it possible for a father, who has not a single black mark by his name, to entirely lose his rights to a child, born during his marriage and therefore presumptively his? The cogent dissent from the Appellate Court’s decision says he can’t, but more about that in a bit.

Apparently the reason the trial judge terminated Glover’s rights is that he didn’t follow the court’s orders to avail himself of certain “services” of the ADHS. Now, remember, that ADHS is an agency of the State of Arkansas, but during most of the court proceedings, Glover was nowhere near Arkansas and therefore could not be ”served” by ADHS. More importantly, the “services” ordered are transparently aimed at a parent who has abused his/her child. Here they are:

-provide complete medical history for juvenile
-parenting classes
-anger management classes
-forensic psychological evaluation – follow recommendations
-random drug screens
-remain drug free
-remain alcohol free
-provide vital info for fetal alcohol syndrome assessment
-drug and alcohol assessment – follow recommendations
-medication assessment and follow recommendations
-maintain stable and suitable housing
-attend staffings at DHS
-cooperate with Department
-maintain contact with Department
-attend visitation with juvenile
-demonstrate improved parenting
-maintain reliable transportation or seek reasonable assistance from DHS
-complete affidavit of Financial Means
-refrain from criminal or illegal activity

So what we have is a state agency and four separate judges who couldn’t quite grasp the fact that, although there was an abused child and although there was a father in court, the father hadn’t abused the child. Glover didn’t need any of the “services” ADHS said he needed.

Likewise, the fact that he was out of the country most of the time and in the hospital part of the time when he returned from abroad and was honorably discharged from military service, and therefore unable to avail himself of the “services” never sank in on the judges or ADHS.

Late in the game, the court appointed counsel to “represent” Glover. I use quotation marks around the word “represent” because the dissenting justice at the appellate court described that representation this way:

The quality of the appointed counsel’s representation at this late stage of the case supports an inference that the purpose of the appointment was not to assist Mr. Glover in negotiating his way through the juvenile courts to gain custody of E.G., but rather to facilitate his exit by terminating his parental rights.

The dissent’s description is given considerably more weight by the fact that Glover’s lawyer made no effort to assert at trial any of the very obvious legal issues presented by the termination of a fit father’s parental rights. Having failed to assert them at trial, they couldn’t be asserted on appeal. To make her malpractice still more obvious, Glover’s attorney filed his appeal but under a “no-merit” procedure. That’s one in which the lawyer files the appeal because her client demands it, but tells the court it has no merit. This was “zealous representation” by an attorney? It’s more like a bad joke.

In short, the lawyer worked hand-in-glove with ADHS and the judges to cut the father out of his child’s life. My strong belief is that ADHS wanted that all along. That’s why its counsel convinced the judges to order the long list of “services” for Glover to comply with. ADHS hoped that Glover wouldn’t comply due to his deployment overseas and failure to comply would lose him his parental rights. And that’s just what happened. Some people may call that justice. I call it a conspiracy.

Not surprisingly, Glover lost his appeal. The appellate majority said he hadn’t raised any of his issues on appeal, so there was no way he could win. Fair enough. Or was it?

On the contrary, the dissenting judge, Josephine Hart, completely destroyed the majority’s summary dismissal of Glover’s appeal. She points out that, due to a case decided by the Arkansas Supreme Court (the Mahone case) during the pendency of Glover’s case, the state cannot interfere with the parenting rights of a fit parent.

The Mahone court overruled Judkins and held that custody of a child taken from a custodial parent should result in first shifting custody to the nonoffending, noncustodial parent.

Importantly, the Mahone court relied on U.S. Supreme Court precedent in so ruling.

The United States Supreme Court has stated that it is a fundamental right to parent a child without interference by the state. Accordingly, there first must be a showing of unfitness before the state may intervene. The fact that one parent is unfit does not alter the state’s burden to prove that the other parent is also unable to care for the child before it may interfere in the family… Without a finding of unfitness, the state has no constitutional authority to exercise that power. Under current Supreme Court authority, the existence of a single fit parent, regardless of the acts of the other parent, negates the state’s ability to interfere in the family unit.

Those are, once again, Judge Josephine Hart’s. She was writing at the appellate level in Mahone and, when the case got to it, the Arkansas Supreme Court agreed.

More importantly still, the trial court in Glover’s case had no jurisdiction. In order to exercise any authority over his rights, it had to first find that he was unfit. It didn’t because he wasn’t. Therefore, the matter could be raised for the first time on appeal.

It can therefore be raised before the Arkansas Supreme Court. From here, it looks like a slam-dunk win.

To date, however, the lesson Edward Glover’s case teaches us is just how determined child welfare agencies are to cut fathers out of the lives of their children and how willing courts are to comply.


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