Constitutional right to direct the care & custody of the child before respondent was adjudicated; In re Sander; Mathews v Eldridge

In an order, the court granted in part and denied in part respondent’s motion for reconsideration and vacated its earlier opinion (see e-Journal # 79370 in the 4/28/23 edition). On reconsideration, it issued a new opinion, finding the DHHS’s delays deeply troubling and holding that the trial court reasonably determined the fictive kin suggested by respondent-father was an inappropriate placement. Thus, it reluctantly affirmed. Within days after AKD’s birth, the DHHS “petitioned for his removal from his mother and for the termination of her parental rights. The DHHS knew that the current respondent was the child’s likely father. Father expeditiously established his paternity. Yet the DHHS neglected to file a petition naming him as a respondent for 15 months after his child was placed in foster care. During the interim, father urged the court to place his son with PM, fictive kin. The court rejected this option, and father” appealed the removal order. The trial court “and the DHHS bypassed father’s right to direct the placement of his child by delaying his legal ability to assert that right.” The court held that there was “no legitimate excuse for the DHHS’s failure to timely declare father a respondent.” Father contended “that before he was officially named as a respondent in the child protective proceedings, he possessed an unfettered right to place his child with anyone of his choosing.” The court held that as in Sanders, father in this case “enjoyed a constitutional right to direct the care and custody of AKD before he was adjudicated. But in Sanders, as here, the legal analysis does not stop with that observation. When a child has been placed into care by an unchallenged order of the court, the state has a legitimate and important interest in protecting the child’s health and safety. When vindication of an unadjudicated parent’s custodial right will necessarily involve a court-ordered custodial change and the elimination of state custody, the state’s interest permits the maintenance of continued, temporary placement while an investigation is conducted to ensure the appropriateness of the new placement.” The court had no difficulty holding “that an abrupt removal of AKD from his foster care placement would have triggered a substantial risk of emotional harm to the child, even if the proposed placement were ultimately determined to be fit. AKD was only 5½ months of age when father became eligible to direct his care and custody. The court and the DHHS had an interest in protecting him from an unsafe and emotionally damaging custodial transfer, which meant conducting some investigation into the appropriateness of father’s proposed placement.” The court noted “that after placement, even relatives must proceed through the foster care licensing process.” It also noted that before “a child is placed with a relative, the DHHS must review the individual’s ‘[p]rior CPS history’ and conduct a ‘Central Registry check.’” The court sympathized with father’s position, but under the circumstances here, “father’s right to control the custody and care of his child must yield, at least temporarily, to the state’s interest in preventing upheaval for AKD, a vulnerable child who has been in care with the same foster family for nearly two years.” Balancing the interests “as Eldridge supports that we do, we conclude that in this case, the court did not err by initially refusing to transfer AKD’s custody.”