Murder of parent allows but does not require TPR 

Posted: 1:00 am Mon, March 22, 2010
By Barbara L. Jones

The Court of Appeals has come close to establishing a bright-line rule for termination of parental rights – but stopped short of actually doing so.

In a case in which the children’s father murdered their mother and received a sentence longer than the children’s minority, a finding of palpable unfitness as a parent and the termination of the father’s parental rights was warranted, the appellate court said.

“For an incarcerated surviving parent, it … becomes infinitely more important to preserve and nurture the resources outside of prison. … [The father] has not only decreased his own capacity to parent, he has also destroyed the other primary resource that could have helped compensate for his absence,” wrote Judge Gary L. Crippen.

The decision is In the Matter of the Welfare of the Children of: A.I. (Deceased) and M.I., Parents.

The case follows precedent in holding that incarceration, even for murder, is not per se grounds for termination of parental rights, lawyers say.

All TPRs have to be decided on the best interests of the child under Minn. Stat. sec. 260C.301 and require a case-by-case analysis of the statutory factors. While a long incarceration alone would not justify a TPR, the A.I. decision makes clear that a lengthy sentence coupled with a conviction for the murder of the other parent presents a pretty strong case for a TPR.

Under A.I., the standard for terminating an imprisoned parent’s parental rights is something like “incarceration plus,” said Linda Foreman, executive director of the Children’s Law Center in St. Paul.

Consequences to the parent-child relationship

The father, M.I., and the mother, A.I., were both from Nigeria and had two children, who are now ages 5 and 4. On July 24, 2008, the father shot and killed the mother and was sentenced to more than 30 years in prison.

Hennepin County petitioned for a TPR on the grounds of abandonment and palpable unfitness to parent. The county began to examine different placement options for the children, including placing them with relatives in Nigeria and Maryland. No home studies were available at the time of the TPR trial.

The District Court judge said that the county impermissibly relied on the father’s incarceration in seeking the TPR and should have presented evidence that included the father’s history of violence against the mother. Concluding that the grounds for a TPR had not been established, the judge ordered a new trial.

However, the judge subsequently amended her order to include findings that the father had murdered the mother while a restraining order was in place and had not expressed any remorse. Having made these additional findings, the judge terminated the father’s rights.

On appeal, the father argued that his parental rights were impermissibly terminated based solely on incarceration. He also disputed the court’s revisiting of its denial of the TPR and failure to transfer custody to his relative in Nigeria.

‘Unique challenges’

The Court of Appeals first observed that the murder of one parent by the other “presents unique challenges” in the application of Minn. Stat. sec. 260C.301, subd. 1(b)(4).

The court then determined that the nature and direct consequences of the murder can be used to establish specific conditions directly relating to the parent-child relationship. For example, in the A.I. case, such evidence could be used to establish the father’s depriving the children of their mother and serving prison time that will last until they are adults. The father himself is accountable for both these conditions, the court noted.

While incarceration does not necessarily preclude a person from acting in a parental role, when the parent is incarcerated for murder he has destroyed the children’s alternative resources, the appellate court noted.

“When a parent permanently and intentionally denies his children parental care under the circumstances present in this case, he demonstrates his palpable unfitness to parent,” wrote Crippen.

The Court of Appeals also said the findings of unfitness were supported by the father’s lack of remorse for the murder. However, the court also cautioned that the case is grounded in its specific facts.

Assistant Hennepin County Public Defender Peter Gorman, who represented the father, said his client was not under a restraining order because it had expired. Gorman also said his client demonstrated weeping and other forms of remorse.

Gorman said the decision amounts to an order terminating the father’s parental rights because he was in prison, which was the trial court’s initial concern about granting the county’s request. Then the trial court judge inappropriately ordered a new trial and told the county what to prove, he said.

“A ‘do-over’ is not allowed,’” and the “do-over” findings don’t support the TPR, Gorman told Minnesota Lawyer.

No bright-line rule

Since the Court of Appeals carefully restrained the case to its facts, it does not create a new bright-line rule of law, lawyers said.

Even though it may seem that the facts are an obvious example of palpable unfitness to parent, the case only states that a homicide against a parent coupled with unavailability because of incarceration could indicate palpable unfitness, Gorman said.

Because TPRs are based on the best interests of the children, they are almost always painted in various shades of gray, Gorman said. “You would probably not find any black letter law cases [on palpable unfitness]. I don’t know if you could put it on a chart,” he said.

The case only goes as far as stating more clearly than any other case what can happen when one parent murders, said Julie Harris, manager of the Child Protection Division of the Hennepin County Attorney’s Office. There might be a reason in an individual case that it is in the best interests of the child to maintain the parent-child relationship, she added.

The lesson for attorneys who represent children who don’t want to go back to the parent is to be sure they cover all the “incarceration plus” factors, said Foreman.