Posted by Eugene Volokh:
"Shared Racial Heritage" Not Relevant To Decision Whether To Terminate Parental
Rights:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244094502
From [1]In re the Termination of Parental Rights to MyKarla M. (Wisc.
Ct. App. June 2):
MyKarla was born in Antigo in August 2004. A few days after
MyKarla�s birth, her mother, Misty, moved with MyKarla to Milwaukee
to join Bobby. In January 2005, Misty and MyKarla returned to
Antigo. While in Milwaukee, Misty and MyKarla briefly resided with
Bobby�s mother. Bobby lived with them part of the time, but he was
also incarcerated part of the time. When Misty and MyKarla moved
back to Antigo, MyKarla was four months old. For the next year,
Misty and MyKarla lived by themselves in Antigo, and Bobby was in
Milwaukee.
In January 2006, Langlade County took MyKarla into custody
following a drug raid at Misty�s apartment. Two weeks later, the
County placed MyKarla in her maternal aunt�s home. The County then
alleged, and the court found, that MyKarla was a child in need of
protection or services (CHIPS). The CHIPS order continued placement
with MyKarla�s aunt.
Two years later, the County filed a petition to terminate Bobby and
Misty�s parental rights. Following a trial, a jury found grounds
existed to terminate the parental rights of both parents.
At the dispositional hearing, the court found both parents unfit.
Misty then voluntarily terminated her parental rights. As for
Bobby, the court concluded it was also in MyKarla�s best interests
to terminate his parental rights....
The second part of Bobby�s attack on the circuit court�s discretion
concerns its failure to consider the effect of severing MyKarla�s
ties to her African-American relatives. Wisconsin Stat. §
48.426(3)(c) requires courts to consider a child�s substantial
family relationships. Bobby does not argue the four months MyKarla
resided with Misty at his mother�s house created a substantial
relationship. Nor does he assert he has any other relatives who
forged a bond with MyKarla. Instead he contends that �a shared
racial heritage with relatives also creates a substantial
relationship concerning matters of culture and history.�
Wisconsin law does not require courts to consider race when
determining whether to terminate parental rights, and Bobby cites
no authority holding there is such obligation. Instead, he cites as
persuasive a twenty-six-year-old case from Pennsylvania. See Miller
v. Berks, 465 A.2d 614 (Pa. 1983). In Miller, the court determined
Pennsylvania�s statutory requirement that placement petitions
identify the racial background of adopting parents and potential
adoptees indicated the legislature intended race to be a factor in
determining the best interests of the child. The Wisconsin
placement statute contains no such requirement, see Wis. Stat. §
48.837(2), nor have Wisconsin courts interpreted either our state�s
termination of parental rights or adoption statutes to require
consideration of race.
In Wisconsin, courts must only consider whether it would be harmful
to sever the child�s substantial relationships with parents or
relatives. Wis. Stat. § 48.426(3)(c). A shared racial heritage
does not by itself create a substantial relationship. If it did,
any familial relationship would be substantial, and the use of the
word would be surplusage -- a result we avoid when discerning the
meaning of statutes.
Bobby does not allege MyKarla has any substantial relationships
with her African-American relatives, except to the extent she
shares a racial heritage with them. Nor does the record indicate
any. Therefore, because MyKarla has no substantial relationships
with her African-American relatives, the court was not required to
consider the effects of severing her legal ties to them.
References
1.
http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=36670
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