In the recent opinion issued by the Court of Appeals in IN RE D.M.; T.M., (March 13, 2014), the Court once again articulated that when a biological parent is unable to care for his or her child, her choice of a fit custodian must be given a weighty articulated consideration by the trial court.

T.M., the biological mother of D.M., appealed successfully her termination of parental rights by the trial court.   She argued on appeal that the lower court erred by “failing to give weighty consideration to the third-party custodial arrangement” she set forth as a placement option and in lieu of termination of her parental rights.  She had proposed her mother in law TM2 as a placement option.

Although the child had special needs and behavioral issues, TM2 was willing to care for the child and had taken affirmative steps in that direction: she had completed foster parenting classes, undergone home study by the agency, and was licensed as a foster parent.

CFSA did not support mother’s choice of placement reasoning that TM2’s work hours, and the child’s special need, and behavioral issues worked against the placement.  The lower court agreed.  The Court of Appeals reversed essentially stating that the CFSA and the lower court analysis did not meet the weighty consideration legal principles the Court had mandated.  The agency or the trial court had to find TM2 unfit to care for the child in order to meet the standard.  In another word, the agency had the burden to show that placement with TM2 was not in the best interest of the child by clear and convincing evidence which they did not.

Specifically the Court ruled: [b]ecause ―a child and the natural parents share a vital interest in preventing erroneous termination of their natural relationship, we have mandated that ―a parent’s choice of a fit custodian for the child must be given weighty consideration which can be overcome only by a showing, by clear and convincing evidence, that the custodial arrangement and preservation of the parent-child relationship is clearly contrary to the child‘s best interest.

The Court also ruled that the lower court had not sufficiently articulated if the parent’s choice was given a weighty consideration.  The lower court ruling was not detailed or sufficiently thorough on this issue.  Moreover, parental dilatoriness in selecting the viable choice of custodian does not excuse the court’s need for a detailed and thorough analysis of the fitness of this choice before looking the other way by granting an adoption or terminating parental rights otherwise.

It also appears that the Court of Appeals did not agree with the trial Judge rubber-stamping CFSA’s position in what would be in the best interest of the child.  Placement with the mother’s choice of custodian — a relative placement, or placing the child for adoption all while a family resource fights to gain custody.  The Court held that the family placement and the mother’s choice required a weightier legal consideration.

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