Bill Description: Senate Bill 1257 would create a presumption that the Department of Health and Welfare may deny parental visitation rights based on claims of abuse.
Rating: -2
Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?
Senate Bill 1257 would amend Section 16-1602, Idaho Code, which is the definitions section for Chapter 16, Title 16, the “Child Protective Act.”
Specifically, the bill would add a definition of “visitation,” which means “contact between a child and the child’s parent, guardian, custodian, or siblings” and would include “in-person visitation, video communication, telephonic contact, and written communication.”
The bill would add new language stating that “in-person visitation shall not be permitted” if the Department of Health and Welfare has “a substantiated claim of sexual abuse or physical abuse against the parent, guardian, or custodian.”
The only exception would be “if the court finds that in-person visitation is in the best interest of the child.”
Denying a parent’s visitation rights should require a court order, at minimum, and ideally require an actual conviction of the alleged crime, but under this language, the department’s own assessment is considered sufficient cause to deny visitation absent a court order to the contrary.
Among the reasons why a claim might be considered “substantiated” is “abuse was witnessed by an employee of the department.” This creates a conflict of interest where the department can initiate and substantiate its own allegations.
Some of the other reasons include “abuse was corroborated by physical or medical evidence” or “abuse has been established by a preponderance of the evidence.” Of note, only one of the standards needs to be met to deem a claim substantiated. And “preponderance of the evidence” is a very low bar, typically used for civil process, not for denying fundamental rights.
Even in cases where a court “finds that in-person visitation is in the best interest of the child,” the law would impose additional restrictions among which are “the parent, guardian, or custodian shall not be left alone with the child for any reason, including restroom breaks” and “the parent, guardian, or custodian shall not be allowed to engage in secret conversations or other communication that cannot be monitored in real time.”
So again, we have a claim of abuse that can be both initiated and substantiated by the department, and even if a skeptical judge finds that visitation is still warranted, the department gets to have someone present at all stages of the visit and monitor all communication in real time.
This bill substitutes the presumption of innocence and the protection of parental rights for blind faith in the department’s honesty and accuracy.
(-1)
Senate Bill 1257 would also amend Section 16-2005, Idaho Code, which deals with conditions under which parental rights may be terminated. It would add a new justification for such termination if “the parent is incarcerated at the time of the termination hearing and has been or likely will remain incarcerated for a substantial portion of the child’s minority, and termination is initiated by the department for such child who is in the legal custody of the department.”
It is important to recognize here that there is no requirement that the incarceration be related to an allegation of or conviction for abusing the child; the language broadly applies to incarceration for any reason. In fact, there is not even a requirement that the incarceration be within the state of Idaho, within the U.S., or based upon a criminal conviction. Under this language, a parent incarcerated in a foreign country on dubious charges “at the time of the termination hearing” could be deemed “likely” to remain incarcerated for a substantial portion of the child’s minority.
As with the section above, the department’s actions — as the initiator of the termination effort — are presumed justified in a case where the parent may be unable to offer a competent defense or refutation to the department’s efforts.
The termination of parental rights is an extreme step, and ought to be undertaken only in cases where no reasonable alternative exists. While incarceration is certainly disruptive, it should not be deemed a sufficient pretext for severing parental rights, absent other corroborating factors, and without providing sufficient opportunity for rebuttal and appeal.
(-1)
