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"Shared Racial Heritage" Not Relevant To Decision Whether To Terminate Parental Rights:

From 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.

UPDATE: From commenter ARCraig: "Clearly a mixed-race child could never be raised successfully by their white mother's family. It's not like such a person could ever be elected President or anything."

gwinje:
Why are there no comments?
6.4.2009 3:43am
Malvolio:
I was going to comment that just naming your kid MyKarla should be grounds for termination of parental rights, but decided it wasn't really worth it.
6.4.2009 4:11am
A. Zarkov (mail):
Parents are TSTBAs.

*Too stupid to be alive.
6.4.2009 4:55am
TomH (mail):
All other circumstances aside, it seems that the argument on behalf of Bobby is just one of those legal argumetns you make when you have nothing else that will work. He had to write something.
6.4.2009 7:27am
TomH (mail):
the attorney - he or she
6.4.2009 7:28am
josh bornstein (mail) (www):
I'm not surprised by the ruling. In my 10 years in Children's Court (in Los Angeles), I saw about 30 cases where one or both parents raised this issue, in an effort to avoid having their parental rights terminated.

The parents lost every time (I should say; they lost on this issue every time. Sometimes they were able to convince the court that they fell into one of the other exceptions.). As far as I know, none of the parents in my courtroom ever even appealed this--I always thought this was because it was settled law. Of course; what the law is in California may differ from other states.

On the other hand, here in LA County, the social workers were quite good about trying to accommodate parents' wishes regarding placement of their children into foster care homes that mirrored the parents' religions. I'd say the social workers succeeded about 66% of the time, but they really did expend a lot of effort trying to track down a qualified home that was Catholic, or Santaria, or whatever. The unsuccessful cases, where the foster parents would take the kids to a church service at odds with the parents' faith were always the ones that had, um, spirited contested hearings over-and-over. Ah; good times . . . .

And Malvolio, I'd have to say--again, based on the 750-odd cases I had in Children's Court--that MyKarla is not even in the top 20 (Bottom 20??) of you've-gotta-be-kidding-me names. (eg, Lesbia, Hostess (for a boy), Shittie, Gayboy. As to your ultimate point--I am a liberal, but I completely agree with you . . . giving names like these should be an automatic disqualifier for being a parent.
6.4.2009 7:32am
PersonFromPorlock:
With the child being foreign-born to foreign nationals but then put under protection by an American court and presumably raised thereafter in America, what's her citizenship as an adult?
6.4.2009 8:17am
Nick P.:
PersonFromPorlock:

Not sure if you are joking, but when did Wisconsin become a foreign nation? The child was born in Antigo, Wisconsin.
6.4.2009 9:16am
Smooth, Like a Rhapsody (mail):
I do this sort of work in Indiana.

This is a somewhat interesting argument for parents from the standpoint that in order to prove up a petition to terminate, we have to show that, inter alia, it is in the best interests of the child that rights be terminated. I can imagine, I guess, a child who is old enough and from a subculture that is unique enough that this may affect a best interests finding. But I have never heard of this argument actually being made.

More practically, the court's response should have been to wonder why there was no one among this group of cultural preservers who had enough interest in the child to file for guardianship/adoption of the child prior to the termination hearing.
6.4.2009 9:48am
Andrew Janssen (mail):

With the child being foreign-born to foreign nationals but then put under protection by an American court and presumably raised thereafter in America, what's her citizenship as an adult?


Antigo is not the same as Antigua.
6.4.2009 9:58am
mcbain (mail):
well if MyKarla is a name, Antigo might be a country.
6.4.2009 10:18am
ARCraig (mail):
Clearly a mixed-race child could never be raised successfully by their white mother's family. It's not like such a person could ever be elected President or anything...
6.4.2009 10:56am
ARCraig (mail):
On a more serious note, I know it's usual for a half-white, half-black person to be called "black". That probably has as much to do with appearance as with the racist history of the "one drop rule". But how the hell could you make the leap from that to the child somehow being "more related" to their black relatives than white ones? What if, say, the white family was one with some strong European national heritage, like Polish, that the family wanted to pass on? Are only black people capable of having a "shared racial heritage"?

Questions the court won't delve into for good reason, but ones that I'd like to see put to the "black babies belong to black families" bigots.
6.4.2009 11:27am
Dave N (mail):
ARCraig--Thread winner.
6.4.2009 11:56am
Linus:
"With the child being foreign-born to foreign nationals but then put under protection by an American court and presumably raised thereafter in America, what's her citizenship as an adult? "

It mostly depends on how the child was able to enter the US in the first place. If the child entered on say an SIJ visa (special immigrant Juvenile) they can adjust to that of an LPR. After they are an LPR if they are adopted by US citizens while under the age of 16 (and then reside with the parents for at least 2 years) then the child can automatically derive citizenship under the Child Citizenship Act of 2000. It is important to note that the child MUST have been under 18 by the effective date in February 27 of 2001.

IF the child never made to that of an LPR before the age of 18, then they would not get naturalization automatically and would have to attain it on their own somehow.

As for other countries, citizenship laws vary tremendously and there are a large number of people who don't have citizenship from any country.
6.4.2009 12:18pm
PersonFromPorlock:
Well, blew that one: just assumed "Antigo" was someplace outside the US I'd never heard of. Still, the question's valid since another child in the same situation could easily be foreign-born, as I assumed this one was.
6.4.2009 2:12pm
Steve:
What if, say, the white family was one with some strong European national heritage, like Polish, that the family wanted to pass on? Are only black people capable of having a "shared racial heritage"?

If one side of the family had a strong ethnic identification of that type, there's certainly nothing preventing that parent from making the same argument. However, I wouldn't expect it to be any more successful than the actual argument made in the cited case.

You're looking for intellectual consistency when the reality is simply that of an advocate making whatever argument will best advance his client's interests. If the family were half-Polish, sure, why not try it?
6.4.2009 3:43pm

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