Amicus Curiae Brief — M. C., et vir, Petitioners v. Indiana Department of Child Services

No. 23-450

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------M.C. and J.C.,

Petitioners,

v.

INDIANA DEPARTMENT OF CHILD SERVICES,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Indiana Court Of Appeals

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

HERITAGE DEFENSE FOUNDATION

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------BRADLEY W. PIERCE

Counsel of Record

DON HART

HERITAGE DEFENSE FOUNDATION

2082 US 183, Ste. 170 #224

Leander, Texas 78641

Tel. (737) 305-7896

bpierce@heritagedefense.org

Counsel for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

Table of Contents .................................................

i

Table of Authorities .............................................

ii

Interest of Amicus Curiae....................................

1

Summary of Argument ........................................

1

Argument .............................................................

2

I.

The Court should grant certiorari because

of the importance and scope of the liberty

interests affected .......................................

2

a. Parental rights are God-given .............

2

b. The interest of parents in the care and

custody of their children is a fundamental liberty interest ........................

5

c.

II.

Tolerating such significant uncertainty

regarding parental rights destabilizes

society ..................................................

6

The Court should grant certiorari to address significant confusion remaining after its opinion in Troxel ............................. 11

Conclusion............................................................ 19

ii

TABLE OF AUTHORITIES

Page

THE HOLY BIBLE

1 Timothy 5:8 ............................................................3

2 Corinthians 12:14...................................................3

Colossians 3:20-21.....................................................3

Deuteronomy 11:19 ...................................................3

Deuteronomy 6:6-7 ....................................................3

Ephesians 6:1-4 .........................................................3

Job 1:21 ......................................................................4

Proverbs 13:24 ...........................................................3

Proverbs 19:18 ...........................................................3

Proverbs 22:6.............................................................3

Psalm 103:13 .............................................................3

Romans 13:3 ............................................................19

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV .................................... 1, 17, 19

CASES

A.C. v. Ind. Dep’t of Child Servs., 198 N.E.3d 1

(Ind. Ct. App. 2022) ............................................. 7, 17

Commonwealth v. K.S., 585 S.W.3d 202 (Ky.

2019) ..........................................................................8

Custody of Smith, 969 P.2d 21 (Wash. 1998) ...............9

Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) ...................16

iii

TABLE OF AUTHORITIES – Continued

Page

Ex parte G.C., 924 So. 2d 651 (Ala. 2005) ....................5

In re H.S., 550 S.W.3d 151 (Tex. 2018) .......................15

In re K.A.W., 133 S.W.3d 1 (Mo. 2004) ..........................8

In re K.M.L., 443 S.W.3d 101 (Tex. 2014) .....................8

In re N.E., 919 N.E.2d 102 (Ind. 2010) .........................7

Marcus Steven H. v. State Dep’t of Family Servs.

(In re T.M.R.), 487 P.3d 783 (Nev. 2021) ...................8

Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th

Cir. 2018) ...................................................................8

Parham v. J.R., 442 U.S. 584 (1979) .............................6

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) ..............6

Prince v. Massachusetts, 321 U.S. 158 (1944) ............18

Santosky v. Kramer, 455 U.S. 745 (1982) ............... 6, 17

Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977) ........................................18

State v. Deaton, 54 S.W. 901 (Tex. 1900) ......................4

Troxel v. Granville, 530 U.S. 57 (2000) ...... 1, 5, 9, 11-18

Wisconsin v. Yoder, 406 U.S. 205 (1972) .......................6

OTHER AUTHORITIES

1 William Blackstone, Commentaries on the Law

of England (1765) ......................................................2

Abraham Kuyper, The L.P. Stone Lectures for

1898-1899: Calvinism (1898) ....................................3

iv

TABLE OF AUTHORITIES – Continued

Page

Ayelet Blecher-Prigat, Article: Rethinking Visitation: From a Parental to a Relational Right,

16 Duke J. Gender L. & Pol’y 1 (2009) ...................13

Erwin Chemerinsky, Constitutional Law: Principles and Policies (Wolters Kluwer 4th Ed.

2011) ........................................................................12

Kathleen Bean, Grandparent Visitation: Can the

Parent Refuse?, 24 U. Louisville J. Fam. L. 393

(1985-86) ....................................................................9

Michael P. Farris, The Confused Character of

Parental Rights in the Aftermath of Troxel,

Parental Rts. (Feb. 20, 2009) ...................................18

1

INTEREST OF AMICUS CURIAE1

Heritage Defense Foundation is a national

nonprofit legal advocacy organization with the mission

to advance the kingdom of Christ by protecting and

empowering the biblical family through the protection

of children and the preservation of civil rights and civil

liberties secured by law for both parents and children.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

This case merits the Court’s attention because,

among other reasons, it involves a shocking violation

of one of the most fundamental liberty interests given

by God and which this Court has repeatedly deemed to

be protected by the U.S. Constitution: parental rights.

Left unaddressed, the violation at issue will destabilize

the bedrock of society and foster anxiety among parents across the country regarding the security of their

parental rights. While the Court has held that it has

jurisdiction under the Fourteenth Amendment to protect parental rights, it has left considerable confusion

remaining, especially after its plurality decision in

Troxel. More clarity is needed, lest respect for parental

1

In accordance with Rule 37.6, no counsel for any party authored this brief in whole or in part; and no person or entity other

than amicus, its members, and its counsel made a monetary contribution intended to fund the preparation or submission of this

brief. Pursuant to Rule 37.2, counsel for amicus timely notified

the counsel of record of intent to file this brief.

2

rights become a mere platitude gutted of any real

meaning.

---------------------------------♦---------------------------------

ARGUMENT

I.

The Court should grant certiorari because

of the importance and scope of the liberty

interests affected.

a. Parental rights are God-given.

Under ordinary circumstances, who should have

authority to make decisions for a minor child: the child,

the state, or the parents?

All human authority is derivative. The ultimate

source of all legitimate earthly authority is divine—it

comes from God. He delegates limited jurisdiction to

different spheres of authority, such as the family and

the state. In every case, those jurisdictions include

both authority and responsibility.

The family pre-existed all other human institutions. As William Blackstone wrote, “single families . . .

formed the first natural society,” becoming “the first

though imperfect rudiments of civil or political society.”2 For the family, God has given jurisdiction to

2

1 William Blackstone, Commentaries on the Law of England *41 (1765).

3

parents to nurture, teach, and train their children,

among other rights and duties.3

As Prime Minister of the Netherlands and theologian Abraham Kuyper explained, the authority of parents is not derived from the state, but from God:

Behind these organic spheres, with intellectual, aesthetical and technical sovereignty,

the sphere of the family opens itself, with its

right of marriage, domestic peace, education

and possession; and in this sphere also the

natural head is conscious of exercising an inherent authority,—not because the government allows it, but because God has imposed

it. Paternal authority roots itself in the very

life-blood and is proclaimed in the fifth Commandment.4

As one state supreme court put it:

God, in his wisdom, has placed upon the father and mother the obligation to nurture, educate, protect, and guide their offspring, and

has qualified them to discharge those important duties by writing in their hearts sentiments of affection, and establishing between

them and their children ties which cannot

3

See Ephesians 6:1-4; Colossians 3:20-21; Deuteronomy 6:6-7,

11:19; Proverbs 22:6; 1 Timothy 5:8; 2 Corinthians 12:14; Proverbs

13:24, 19:18; Psalm 103:13.

4

Abraham Kuyper, The L.P. Stone Lectures for 1898-1899:

Calvinism (Six Lectures Delivered in the Theological Seminary at

Princeton), 123 (1898).

4

exist between the children and any other persons.5

Of course, there are boundaries to a parent’s authority over their child. Their authority is not absolute.

Serious misconduct by a parent involving abuse or

neglect of their child invokes the state’s jurisdiction to

intervene by punishing the offending parent so as to

protect the minor child. The state may also have authority where parents have voluntarily delegated jurisdiction to it by invitation, such as to help with an

out-of-control child.

Most important to note is that parental authority

and responsibility do not come from the state. The

state is not God. While the state may and should

recognize authority and responsibility and secure

the legal freedoms to fulfill them—commonly called

“rights”—such rights do not come from man, but from

God. Without such a wholly benevolent and transcendent source, the very concept of human rights is subjective, ethereal, and essentially meaningless.

Accordingly, because rights such as those that parents naturally possess have been given by God, they

cannot be taken away by the state. The Lord gives; the

Lord takes away.6 A parent’s misconduct may invoke

the state to intervene, and a parent’s misconduct may

even rise to the level that they waive or wholly forfeit

their rights. Yet without some misconduct or voluntary

invitation on the part of parents, the state may not

5

6

State v. Deaton, 54 S.W. 901, 903 (Tex. 1900).

Job 1:21.

5

interfere with the parents’ divinely bestowed jurisdiction.

One state supreme court justice has described it

this way:

God, not the state, has given parents these

rights and responsibilities, and, consequently,

[the] courts should interfere as little as possible with parental decision-making, instead

deferring to parental authority whenever it

has not been fundamentally compromised by

substantial neglect, wrongdoing, or criminal

act.7

b. The interest of parents in the care and

custody of their children is a fundamental liberty interest.

As this Court has held, the interest of parents in

the care, custody, and control of their children “is perhaps the oldest of the fundamental liberty interests

recognized by this Court.”8

Even when a parent has previously “lost temporary custody of their child to the State,” this “fundamental liberty interest of natural parents in the care,

7

Ex parte G.C., 924 So. 2d 651, 677-78 (Ala. 2005) (Parker,

J., dissenting).

8

Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion).

6

custody, and management of their child does not evaporate.”9

Indeed, one of the most central of these fundamental liberty interests of parents is the right “to guide the

religious future and education of their children.”10

Where the parents have not been determined to

be or to have been abusive or neglectful, the state has

no jurisdiction to override the decision-making of the

parents regarding what is in the best interests of

their child. “The child is not the mere creature of the

State.”11

As this Court has said, the idea “that governmental power should supersede parental authority in all

cases because some parents abuse and neglect children” is a “statist notion” that “is repugnant to American tradition.”12

c. Tolerating such significant uncertainty

regarding parental rights destabilizes

society.

Petitioners state, “They fear that the state of Indiana may, in reliance on the Court of Appeals’ decision,

interfere in their home and in the care and custody of

9

Santosky v. Kramer, 455 U.S. 745, 753 (1982).

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).

11

Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925).

12

Parham v. J.R., 442 U.S. 584, 603 (1979) (emphasis original).

10

7

their other children.”13 Petitioners indicate that they

are “gravely concerned that the state of Indiana will

come for their other children.”14

If this case is not properly addressed, the anxiety

that Petitioners express will spread like a cancer to

parents across the country, destabilizing our entire social order.

Among other things, this case is about whether the

state can remove a child from parents even when the

state agrees that those parents have done nothing

wrong.

In the instant case, the state agreed to dismiss,

unsubstantiate, and expunge all allegations against

the parents.15 The trial court apparently approved this

agreement. And nothing indicates the parents consented to the removal at issue. Yet the trial court still

removed the child. This is because, according to the

Indiana Court of Appeals in this case, “A CHINS-6 adjudication is made ‘through no wrongdoing on the part

of either parent.’ ”16 Indeed, there appears to be no dispute that the removal of the child was not based on any

wrongdoing on the part of either parent.

13

Pet’rs’ Br. at 5.

Pet’rs’ Br. at 36.

15

A.C. v. Ind. Dep’t of Child Servs., 198 N.E.3d 1, 8 (Ind. Ct.

App. 2022).

16

Id. at 10 (quoting In re N.E., 919 N.E.2d 102, 105 (Ind.

2010)).

14

8

This is chilling.

Courts and jurists have sometimes referred to terminating parental rights as the “civil death penalty.”17

While the trial court in this case did not completely

terminate Petitioners’ parental rights, it severed their

most fundamental right of custody. Ultimately, the removal resulted in them losing custody until their child

reached majority.

It is one thing for parents to be deterred from bad

behavior by an understanding that they could have

their child removed if they engaged in abuse or neglect.

It is quite another thing for parents to have a fear that,

even if they do nothing wrong, their child could be removed from them simply because they have a disagreement with the child and the government chooses to

take the child’s side.

This strikes at the very heart of parental authority. If custody by parents is always subject to the will

of the state, even when the parents have committed no

wrong, parents become mere servants of the state. The

state and its bureaucrats become the arbitrary micromanagers of every family, controlling them with the

implied threat: “Do what the current political administration says or lose your children.”

17

E.g., Martinez-Cedillo v. Sessions, 896 F.3d 979, 989 (9th

Cir. 2018), vacated, 923 F.3d 1162 (9th Cir. 2019); Marcus Steven

H. v. State Dep’t of Family Servs. (In re T.M.R.), 487 P.3d 783, 788

(Nev. 2021); Commonwealth v. K.S., 585 S.W.3d 202, 220 (Ky.

2019); In re K.A.W., 133 S.W.3d 1, 12 (Mo. 2004); In re K.M.L., 443

S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring).

9

As the Washington Supreme Court quoted in its

own Troxel opinion:

For the state to delegate to the parents the

authority to raise the child as the parents see

fit, except when the state thinks another

choice would be better, is to give the parents

no authority at all. “You may do whatever you

choose, so long as it is what I would choose

also” does not constitute a delegation of authority.18

Moreover, as has been discussed, such a delegation

comes not from the state, but from God.

A child here has been removed not for wrongdoing,

but due to a mere disagreement. If the state can remove a child for this particular disagreement, why not

others? What is the limiting principle? Allowing this

uncertain state of affairs to exist will disrupt the very

fabric that holds an ordered society together.

What assurance do families have that they will

not be next to have their children removed? Is being a

“fit” parent no longer enough to feel secure in one’s

role as a parent? Striking at parental authority is

striking at the very foundation of society. Data demonstrating the importance of intact homes for children

and society have become so well-known, and so frequently confirmed, as to be unnecessary to recite. The

18

Custody of Smith, 969 P.2d 21, 30 (Wash. 1998), (quoting

Kathleen Bean, Grandparent Visitation: Can the Parent Refuse?,

24 U. Louisville J. Fam. L. 393, 441 (1985-86)), aff ’d, 530 U.S. 57

(2000).

10

state endangers the authority of parents to its own

peril.

But this is not all. Undermining parental authority will have other unintended consequences. If parents

fear that seeking help with mental health concerns for

their child has a significant likelihood of resulting in

their child’s removal, many parents may conduct a

cost-benefit analysis and elect not to seek such help at

all.

In the instant case, one irony is that the initial removal from the parents did not even help improve the

child’s eating disorder, which had only worsened in foster care.19 In its final order, the trial court stated, “The

Court finds that it is in the best interests of the child

to be removed from the home environment and remaining in the home would be contrary to the welfare

of the child because of the allegations admitted.”20 Yet

the allegations admitted were not against the parents.

Instead, they were allegations the child was making

about the child’s own mental health. And this was after

the child had already been living in a so-called “accepting”21 foster home for over six months (from June 2,

2021 to December 8, 2021). The Indiana Department of

Child Services (DCS) had itself stated, “Since the filing

19

See Pet’rs’ Br. at 13.

Pet’rs’ Br.at 27 (quoting App. 48a).

21

“[S]he should be in a home where she is excepted [sic] for

who she is.” Pet’rs’ Br. at 12 (quoting App. 127a-128a).

20

11

of the original CHINS petition, DCS has learned that

the child’s eating disorder has worsened.”22

Perhaps the child and the state did not know what

was best.

II.

The Court should grant certiorari to address significant confusion remaining after its opinion in Troxel.

Some may argue, perhaps soundly, that the business of protecting parental rights is generally a state

issue not within the jurisdiction of the federal courts.23

But this Court has already decided that it is. Since the

Court has already decided it has jurisdiction in this

arena, it has the responsibility to ensure that its judgments are clear and unambiguous. Currently, they are

not.

The most recent statement by the Court on the

issue of parental authority is found in Troxel v. Granville.24

Distinguished commentator Erwin Chemerinsky

has described Troxel like this:

Troxel did more to confuse than clarify the law

in the area of grandparents’ rights laws. On

the one hand, the case can be read broadly as

reaffirming that parents have a fundamental

22

Pet’rs’ Br. at 13 (quoting App. 134a-135a).

See Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J.,

dissenting).

24

530 U.S. 57 (2000).

23

12

right to control the upbringing of their children and as providing a basis for invalidating

orders for grandparent visitation over the

objection of fit parents. On the other hand,

Troxel can be read as a very narrow decision

that involved a particularly broad law applied

in a situation where the parent was fit and

regular grandparent visitation still occurred.

The absence of a majority opinion makes it

even more difficult to assess the impact of the

decision other than the certainty that it will

lead to challenges to grandparents’ rights law

throughout the country.25

Another commentator put it this way:

The lack of a majority, the multiplicity of opinions, and the confusion characterizing each

opinion have provided fertile ground for diverse and even contradictory interpretations

of Troxel. Indeed, non-parental visitation cases

attempting to follow the Troxel precedent are

mixed and confused. Courts in different states

have interpreted Troxel differently and even

within states, variant understandings of Troxel

have led to contradictory rulings as to the constitutionality of state statutes. Troxel has also

proven a rich vein for extensive academic attempts to discern the case’s meaning and implications. Not surprisingly, these scholarly

25

Erwin Chemerinsky, Constitutional Law: Principles and

Policies 833 (Wolters Kluwer 4th Ed. 2011).

13

analyses also offer contradictory readings of

the case and its various opinions.26

One state supreme court justice discussed the confusion of Troxel at great length:

The existence of parents’ “fundamental liberty interest” in the care, custody, and control

of their children is well-established in the

Supreme Court’s decisions. But the Supreme

Court has not described the contours of the

right with clarity. In Troxel, a case that deeply

divided the Supreme Court, the plurality

opinion recognized this lack of clarity but declined to ameliorate it: “[T]he constitutionality of any standard for awarding visitation

turns on the specific manner in which the

standard is applied and . . . the constitutional

protections in this area are best ‘elaborated

with care.’ ”

While the Supreme Court has broadly recognized the constitutional interest of parents

in the care, custody, and control of their children,

the Court has not articulated a standard of

review by which to judge the constitutionality

of infringements upon parents’ rights. Given

the lack of precision in the Court’s decisions,

it is difficult to state a precedent-based rule

distinguishing impermissible government interference with parental prerogatives from

permissible government action to protect

child welfare. . . . The Supreme Court held

26

Ayelet Blecher-Prigat, Article: Rethinking Visitation: From

a Parental to a Relational Right, 16 Duke J. Gender L. & Pol’y 1,

11 (2009).

14

that “special weight” must be afforded to a fit

parent’s decision whether “an intergenerational relationship would be beneficial” to the

child. But how much “special weight”? Under

what circumstances can the parents’ wishes

be second-guessed by the government? Existing precedent does not provide clear answers.

One potential answer was proffered by Justice

Thomas in his concurrence in Troxel: “I would

apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental

interest—to say nothing of a compelling one—

in second-guessing a fit parent’s decision regarding visitation with third parties.” Another potential answer is that proffered by the

court of appeals, which interpreted Troxel to

flatly prohibit non-parent standing “while a

fit parent is appropriately exercising his or

her own parental rights.”

. . . . As a matter of first impression, the rule

announced by the court of appeals—that fit

parents cannot be haled into court by non-parents to defend their decisions about the upbringing of their children—is certainly one

plausible consequence of the Supreme Court’s

recognition of a “fundamental right of parents

to make decisions concerning the care, custody, and control of their children.” Troxel does

not tell us exactly where the line is between

constitutional and unconstitutional government interference with the rights of fit parents. In this case and thousands of others like

it in our family courts, parents’ fundamental

15

rights are at stake. We should not assume, as

the Court does, that placing additional burdens on those rights has no constitutional significance just because the Troxel plurality

opinion does not prohibit it.27

If there is confusion about how to apply Troxel

when reviewing grandparents’ visitation statutes, there

is exponentially more so when attempting to apply it

in other contexts.

In the context of a case involving a child protective

services investigation, the Seventh Circuit discussed

the confusion left by Troxel:

Despite the sweeping language used by the

Supreme Court in describing the “fundamental” constitutional liberty interest parents have “in the care, custody, and control of

their children,” the appropriate standard of

review for claims alleging a violation of this

interest is less than clear. It is well established that when a fundamental constitutional right is at stake, courts are to employ

the exacting strict scrutiny test. In Troxel v.

Granville, however, a plurality of the Supreme

Court—Chief Justice Rehnquist and Justices

O’Connor, Ginsburg, and Breyer—used a “combination of factors” test to hold that a state’s

visitation statute, as applied, unconstitutionally

infringed on parents’ fundamental right to rear

their children. In making this determination,

27

In re H.S., 550 S.W.3d 151, 175-76 (Tex. 2018) (Blacklock,

J., dissenting) (discussing parental rights in the context of a

grandparent’s visitation case) (cleaned up).

16

the plurality emphasized that “there is a [constitutional] presumption that fit parents act

in the best interests of their children,” and

“accordingly, so long as a parent adequately

cares for his or her children (i.e., is fit), there

will normally be no reason for the State to inject itself into the private realm of the family

to further question the ability of that parent

to make the best decisions concerning the

rearing of that parent’s children.” The Troxel

plurality declined to define “the precise scope

of the parental due process right in the visitation context,” noting that “constitutional protections in this area are best ‘elaborated with

care.’ ” Justice Thomas concurred in the judgment of the Court, noting “I agree with the

plurality that this Court’s recognition of a

fundamental right to direct the upbringing of

their children resolves this case. . . . The opinions of the plurality, Justice Kennedy, and

Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict

scrutiny to infringements of fundamental

rights.”

Thus, after Troxel, it is not entirely clear what

level of scrutiny is to be applied in cases alleging a violation of the fundamental constitutional right to familial relations. What is

evident, however, is that courts are to use

some form of heightened scrutiny in analyzing these claims.28

28

Doe v. Heck, 327 F.3d 492, 519 (7th Cir. 2003) (cleaned up).

17

Indeed, that we are even discussing Troxel at all is

telling since Troxel had nothing to do with a judge ordering the removal of a child. To admit Troxel is not on

all fours with this case would be an understatement.

And yet it is the best we have. But while the Court repeated its recognition that parental rights are a fundamental liberty interest protected by the Fourteenth

Amendment, the Court provided very little guidance

for how states are to honor that liberty interest.

Troxel merely provides that courts must give “special weight” to parents’ opinions about their children’s

best interests. So Troxel created a presumption that fit

parents act in the best interest of their children. This

seems helpful, but it only raises more questions. Is the

presumption absolute, or is it rebuttable? If rebuttable,

what quantum of evidence is required? For final termination proceedings, the Court has said that clear and

convincing evidence is required.29 But what about removals? Here, the trial court applied preponderance.30

Is preponderance sufficient? And regardless of the

quantum of evidence, what is the standard of review?

One would assume that for an intact home with fit parents, such as those at issue in this case, the standard

must be quite high. Is it strict scrutiny, as Justice

Thomas has suggested?31

29

Santosky v. Kramer, 455 U.S. 745, 748 (1982).

A.C. v. Ind. Dep’t of Child Servs., 198 N.E.3d 1, 12 (Ind. Ct.

App. 2022).

31

Troxel v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring).

30

18

At least one previous justice of this Court has

hinted that the presumption that a fit parent in an intact home acts in the best interest of their child is irrebuttable:

If a State were to attempt to force the breakup

of a natural family, over the objections of the

parents and their children, without some

showing of unfitness and for the sole reason

that to do so was thought to be in the children’s best interest, I should have little doubt

that the State would have intruded impermissibly on “the private realm of family life which

the state cannot enter.”32

For a then-thorough review of the confusion created

by Troxel in both state and federal courts regarding

parental rights even beyond grandparent visitation

cases, see Michael P. Farris, The Confused Character of

Parental Rights in the Aftermath of Troxel, Parental

Rts. (Feb. 20, 2009).33 That article was written over 14

year ago, and the confusion has only grown since.

For now, the Court has provided no standard whatsoever. This lack of guidance results in divergent application. States are left to infringe upon parental rights

so long as they say the magic words “special weight”—

and often even when they do not.

32

Smith v. Org. of Foster Families for Equal. & Reform, 431

U.S. 816, 862-63 (1977) (Stewart, J., concurring) (quoting Prince

v. Massachusetts, 321 U.S. 158, 166 (1944)).

33

Accessible at https://parentalrights.org/understand_the_

issue/current-state-parental-rights/aftermath-of-troxel/ [https://

perma.cc/M82Y-7NAX].

19

If the interest of parents in the care and custody

of their children is a fundamental liberty interest protected by the Fourteenth Amendment, as this Court

has already decided it is, then it is an interest demanding greater clarity to ensure it is given the respect it is

due.

If this case is permitted to stand unanswered, it

will make a mockery of this Court’s repeated holdings

that parental rights are a fundamental liberty interest

protected by the Fourteenth Amendment. If a state can

pay lip service to such liberties, and then act with carte

blanche power to override them, then those liberties

and this Court’s protection of them are rendered meaningless.

---------------------------------♦---------------------------------

CONCLUSION

Romans 13 says, “For rulers are not a terror to

good works, but to evil. Do you want to be unafraid of

the authority? Do what is good, and you will have

praise from the same.”34

Yet here, even though Indiana determined Petitioners to be fit, Petitioners have not only had one child

removed, they have understandably become afraid

“that the state of Indiana will come for their other children.” This very real anxiety Petitioners experience

34

Romans 13:3 (NKJV).

20

will spread and undermine the foundations of society

unless addressed by the Court.

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

BRADLEY W. PIERCE

Counsel of Record

DON HART

HERITAGE DEFENSE FOUNDATION

2082 US 183, Ste. 170 #224

Leander, Texas 78641

Tel. (737) 305-7896

bpierce@heritagedefense.org

Counsel for Amicus Curiae