Friday, December 27, 2013


What is a father?

The Court of Appeals issued an "unpublished" opinion* today on the subject.  It is noteworthy because of what the judges signed off on indicates not being a parent-

Doe’s mental health issues, combined with his criminal behavior and lack of stable job or residence, demonstrate that Doe is unable to discharge his parental responsibilities. Furthermore, the behaviors exhibited by Doe are not recent, isolated occurrences, but rather, are a continued and persistent pattern over a number of years. Thus, we hold the magistrate did not err in concluding Doe is unable to discharge his parental responsibilities and that such inability will continue for a prolonged indeterminate period, and will be injurious to the health, morals, and well-being of the child.

The Court speaks of a 26 year old suffering from schizophrenia who receives disability and finds some work detailing cars.

The state of Idaho has no insanity defense.  Thus, in Idaho, you are blameworthy for what you do when you are in the throws of psychosis.  Naturally, Doe has a criminal record.

Recall for a moment the law that provides the foundation upon which your and my right to parent rests, summarized by the Court:

A parent has a fundamental liberty interest in maintaining a relationship with his or her child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the Termination of Parent and Child Relationship Act is the philosophy that wherever possible family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a parent-child relationship be proved by clear and convincing evidence. Id. Because a fundamental liberty interest is at stake, the United States Supreme Court has determined that a court may terminate a parent-child relationship only if that decision is supported by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982). See also I.C. § 16-2009; In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at 652. 

The Court makes no mention of what treatment Doe has, does, or should receive.  So much for "wherever possible family life should be strengthened and preserved."  Rather, Doe is insane.  Therefore, he should not be a parent.

We cannot know how bad a job Doe's attorney did.  Doe apparently wanted to represent himself.  We do know that Doe had a statutory right to put on evidence as to how he can treat his disease and the Court of Appeals does not mention it if it existed in the record.  

If you are a judge, and a case of this importance is brought before you, and you watch a madman essentially be blindfolded and shot in front of you, what can you do?

The standard is "clear and convincing evidence."  The Court should not accept mental illness on its face as a de facto "you can't parent."  The Court should demand FROM THE PETITIONER evidence that the illness is being treated as best as can be expected for the formative years of the child's life.  A judge must allow bad lawyering to destroy lives- that is the essence of our system.  But it is not the case that the law allows the petitioner to get away with such a limited showing.

The lack of understanding for mental illness and disability among the judiciary of Idaho is extremely disappointing and concerning.  The people of this state have shown they have sympathy for the disabled, however blameworthy they find them.  Would that our judges vindicated those interests in our courts.

*"unpublished" opinion essentially means that a clerk or staff attorney wrote the opinion and the judge simply looked at it a moment before signing it, or that the judge wrote it and thought perhaps it was too early to make this into "caselaw."  But there are many very good arguments as to how silly it is to pretend there are non-precedential decisions, and reality tends to bear out the idea that these opinions matter.

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