Tuesday, March 06, 2012

Interesting Guardianship Decision

Last Friday, the Alaska Supreme Court issued an interesting decision in a case entitled In re Tammy J.  Tammy J. is an adult woman with a developmental disability for whom the state court decided to appoint a guardian.  (The decision to appoint a guardian was not challenged by the parties to the proceeding.)  The court appointed a public guardian, instead of Tammy's parents.  The parents argued, among other things, that the decision to appoint a public guardian violated their parental rights as protected by the Fourteenth Amendment.  They argued, in particular, that the court "should recognize that overcoming the parental priority in guardianship proceedings constitutionally requires clear and convincing evidence that the parents are unfit to serve as guardians, or that parental guardianship would be detrimental to the child."

The Alaska Supreme Court rejected this argument.  It held that the parental rights principles that apply to minor children do not apply to adults with developmental disabilities:
It is inappropriate to refer to care for a developmentally disabled adult offspring as a form of “child rearing.” The risk to the passing on of a family’s heritage also seems substantially less when the state interferes in the care and custody of an adult developmentally disabled child than when the state interferes in decisions about the upbringing of a non-disabled minor.

But there is a far more significant factor we weigh against extending substantive due process protection to parents’ care for a developmentally disabled adult child: the interests of the developmentally disabled adult herself. Even in the context of minor children, when a child’s preferences and interests conflict with the choices of parents, protection of the parents’ rights may come at the expense of the rights of the child. In Wisconsin v. Yoder, the Court protected the rights of parents to direct the education of their children against a compulsory education law, but made clear that its analysis might not apply in a case “in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.” An even stronger case can be made that the fundamental liberty interests of developmentally disabled adults “must . . . be balanced in the equation.” The general trend over the previous decades has been to recognize that developmentally disabled individuals “are not, and should not be, viewed or treated as ‘eternal children.’ ” This trend is reflected in the Americans with Disabilities Act, which states that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency . . . .” The present case illustrates the essential tension between protecting the parental interest in maintaining control over the care and custody of an adult developmentally disabled child, and that child’s interest in maximal participation in society and the development of maximum self-sufficiency. The probate master and the superior court concluded that appointing Tammy’s parents as her guardians could limit her potential by constraining her access to life skills training and to her extended family. We cannot conclude that the United States Constitution requires us to overturn the Alaska Legislature’s decision to value Tammy’s interest in obtaining the greatest possible self-sufficiency and independence above her parents’ interests.
Of course, there are a couple of crucial questions the court didn't really discuss (perhaps because they weren't presented -- I don't know):  (1) whether Tammy should have had a guardian at all; and (2) who Tammy wanted to serve as her guardian.



Blogger Marsha said...

Well, a partial "well-done" to the Alaska Supreme Court! Partial because, like you, I always question whether removal of one's rights is "necessary" (necessary being like pregnant, either one is pregnant....or not, and something is necessary....or it is not), and I wonder how Tammy felt about who would have her rights if they were stripped from her.

For a number of years in Michigan I acted as a court appointed Special Visitor and/or Guardian ad Litem, most often in cases where someone was seeking guardianship of a person with an intellectual/developmental disability. In most cases the Petitioners were parents who were acting out of love for their son or daughter, but they were also acting out of ignorance.

The love part was well-intended, but all too often resulted in over-protectiveness and an underestimation of their adult child's potential. The ignorance part was the mistaken belief that guardianship somehow surrounded their child with a magic protective bubble...which, of course it does not. Guardianship can not keep bad things from happening to someone, and when something does happen, there are many avenues for redress that don't require removing someone's rights.

I applaud the AK Supreme Court recognizing Tammy's partial personhood as an adult. I regret that the court didn't have enough recognition of Tammy's personal sovereignty to question the necessity of stripping from her that which we hold most sacred in this country....our rights... only to invest them in an impersonal public guardian. A guardian who had no personal investment in Tammy, and whose decisions could easily be stifling, infantilizing, restrictive, and unsupportive of Tammy's growth.

So, all in all, a bit of a win, but also sort of a hollow win?

10:08 PM  

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