The Volokh Conspiracy - "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."

	[Eugene Volokh, June 4, 2009 at 1:48am] Trackbacks "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."