Whenever I think that a particular case is difficult, I need only remind myself that there are other cases that are far, far harder. Like this one.
Read the first ten pages, which recite the facts, and tell me what exactly the right call is here, and how one can possibly be supremely confident about that fact. Basically you have a mother and father who are clearly and unambiguously devoted to their child, but they're homeless, and also undervalue the child's need for dental care (he's two years old) and vaccinations. So when the State finds the parents sleeping on a sidewalk, with the child between them, and can't wake up the parents, the state takes the child away from them. At which point the parents (especially the father) go ballistic, and are incredibly angry at the State, and can't seem to get over their anger (i.e., in Justice McConnell's apt description, they adopt a garrison mentality) over having their child taken from them. Which in turn only makes the State less willing to give the child back, because (after all) the parents aren't cooperating with the State. That said, the parents are in fact making progress, and have both rented an apartment at this point and also successfully participated in various reunification programs. But the State is, at the same time, totally concerned that the parents are a flight risk, because they can't seem to get over their anger at the State, and also continue not to understand (or at least "respect") why the State has taken their child away from them. But, after all, the State took their kid away. How do you expect the parents to feel? Happy? Yes, of course, it would be better if they understood, and moved beyond their anger, and better still if they appreciated -- or at least pretended to appreciate -- what the State did. But that's a lot to expect, isn't it? Wouldn't we all have a natural tendency to adopt precisely what the parents here adopted: an "us versus them" mentality? Is that really reason enough to permanently take their kids away?
Oh, one more thing. Meanwhile, the parents give birth to another child. Which the State promptly takes away as well, on the ground that since they took the first kid away, and since the parents aren't making the requisite progress on the first kid, the same is probably going to be true for the second kid as well. Which, I imagine, only makes the parents even angrier, right? From their perspective, their kids have been entirely unjustly taken away from them, merely because they're homeless. No wonder they're flight risks, since the State (I think rightly) perceives that if you give the kids back, even temporarily, the parents will flee with them.
So what do you do? Giving the kids back seems to risk at least some sort of danger to them, especially since the parents are so consumed by anger that they can't seem to recognize that they've done anything wrong. At the same time, the parents are acting precisely like we should expect many parents to act when their children are (in their mind) unjustly taken away. Yes, it would be great if they could feel -- or at least pretend to feel -- that the State was acting properly: that way, we could be more certain (or at least pretend to be more certain) that the parents will change. But what if they don't? Is that sufficient reason to take their children away from them forever? And, similarly, to deprive the children of a life with their biological parents? Even when, as here, yes, the child suffered harm, but it's far, far from a situation of clear-cut abuse?
This is a real toughie. At least for me. Maybe others have a different perspective. And, quite frankly, the ultimate disposition of the present appeal -- which involves only the second child, and which is decided upon somewhat hypertechnical grounds -- doesn't particularly help with regards to the proper resolution of the underlying question. What do you do in a situation like this? What's the best call?
I'm just entirely unsure. These are the hardest of cases. I just don't know where I come out.
