McGurren v. E. D.

SAND, Justice

(dissenting).

I concur with the dissenting opinion of Justice Vogel and give an additional reason for my dissent.

The proceedings on the termination of the parental rights disclosed that very little, if any, significant consideration was given to the father of the children. In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the United States Supreme Court said that as a matter of due process of law the unwed father, like other parents, is entitled to hearing on his fitness before his children are taken from him and that the State may not presume unfitness.

In this case, we have a wedded father who, I believe, is entitled to as much consideration as an unwed or a putative father, as stated in Stanley, supra. A determination that the mother is unfit in itself does not include a determination that the father is also unfit. Any such presumption is unwarranted and would be invalid.

For this additional reason, I would reverse and remand to the trial court to conduct a further hearing not only to correct the deficiencies, if the facts warrant, as expressed in Justice Vogel’s dissenting opinion, but also to consider the fitness of the father before any parental rights are terminated.