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March 19, 2005: TMA International Trusts Press Release – Terri Schiavo UPDATE 3-27-05
THE UNTOLD "TRUTH" ABOUT THE SCHIAVO CASE
The Federal Government...Department of Health & Human Services/Administration For Children & Families, and the Department of Justice allowed Florida to murder Terri Schiavo, in violation of the U.S. Constitution, Federal Statutes, Regulations & Policies. TMA was in contact will all three prior to Terri's death. They did nothing. The following will explain the legal issues.
Guardianship v. Constitutional Right To Be A Parent
THE CONSTITUTIONAL RIGHT TO BE A PARENT
The Schindler's 14th Amendment claims [liberty provision] under parental rights rippened on March 18, 2005, when the feeding tube was last removed. Whatever happened in any court prior to that "event" is moot, as it pertains to the Schindler's constitutional rights. The removal of the feeding tube pursuant to state court order became a "state action" actionable by Terri's parents under the 14th Amendment as it was a "permanent" not "temporary" termination of constitutionally protected "PARENTAL RIGHTS," never having been adjudicated [ruled on] by the federal courts to this day. Terri's parents have a constitutional claim that can be pled before the U.S. District Court in conjunction with a TRO, with a reasonable expectation of success based on Santosky's [455 U.S. 745] "clear and convincing" standard.
In attempting to apply the privacy standards established in Griswold v. Connecticut, 381 U.S. 479, as they apply to Terri, all the Florida State Judges have ignored the constitutional rights of Bob & Mary Schindler in conjunction with the removal of the feeding tube, which is a permanent termination of parental rights protected under the liberty provision of the 14th Amendment. When Michael Schiavo was appointed guardian that was a temporary termination of the Schindler's parental rights. When the feeding tube was removed by state action, that amounted to a permanent termination of parental rights against the Schindler's without due process of law. The subsequent state court rulings by numerous Florida judges possibly triggers the federal criminal statute, 18 U.S.C., Sec. 242, which no Florida judge has any immunity from. It is a felony to conspire to violate the constitutional rights of a U.S. Citizen. In order for the state judges to be found criminally liable under § 242, "state action" must be present. A § 242 act "under color of state law" must be an act "under pretense of law," for "the acts of officers in the ambit of their personal pursuits are plainly excluded," Screws v. United States , 325 U.S. 91, 311 (1945). It must be a "misuse of power . . . made possible only because the wrongdoer is clothed with the authority of law." United States v. Classic , 313 U.S. 229, 326 (1941). [Couch 6th Circuit Court of Appeals No. 94-5836].
Bob & Mary Schindler's Constitutional Right to be Parents has been violated and the Florida judges possibly can be prosecuted under federal law; however, in D.C. Docket No. CV-05-00530-T before Judge Whittmore, appealed in the 11th Circuit No. 05-1156, the Schindler's constitutional rights under the 14th amendment were never pled. Counts 1-5 are all about Terri's rights. The illegal termination of the Schindler's rights were never pled, or addressed by the court. [See D.C. opinion & 11th Circuit opinion at http://caselaw.lp.findlaw.com/data2/circs/11th/0511556p.pdf ]. The second appeal to the 11th Circuit was denied without opinion. The constitutional rights of Terri's parents can be litigated successfully in federal court, and a TRO is warranted, and can be granted on the merits of the Schindler's claim.
What is Florida’s “state interest” in killing Terri Schiavo? She’s not a ward of the state. Her parents have agreed to pay for her care. Her husband has ceased being a husband. She’s been ruled to be incapacitated by the Court…HOWEVER, she still has two loving PARENTS who want her “companionship,” and the right to “care” and “nurture” her…at their expense. Is killing her a violation of her Parents’ Constitutional Right to be Parents? Yes! Is there a difference between a minor child and an incapacitated adult child? No! According to certain U.S. Courts of Appeals. In the case of Terri Schiavo, her parents have a real constitutional right to be Parents. Florida statute section 39.806 applies to Children & Families when they want to terminate parental rights, and, it only gets them through the courthouse door. Florida Supreme Court No. SC03-1602, Departmnent of Children & Families et al v. F.L the Mother. In that case the Florida Supreme Court ruled that;
"We hold that parental rights may be terminated under section 39.806 (1) (i) only if the state proves both a prior involuntary termination of rights to a sibling and a substantial risk of significant harm to the current child. Further, the state must prove that the termination of parental rights is the least restrictive means of protecting the current child from harm." Children & Families has the authority to take Terri into custody until the Schindler's parental rights have been adjudicated fully.
There is no standard for a guardian to terminate the parental rights of a child, only Children and Families.The Legal Question of Bob and Mary Schindler's Constitutional right to be Parents. How their constitutional rights under the 5th and 14th Amendments have been violated. No State has defined compelling reasons why termination of parental rights would be in the best interest of the child; therefore, the "clear and convincing evidence" standard found in Santosky v. Kramer, 455 U.S. 745 must be used instead of the usual "fair preponderance of evidence."
From the web site of the Federal Agency - Administraion For Children & Families:
"VI. TERMINATION OF PARENTAL RIGHTS
INTRODUCTION
Termination of parental rights permanently ends the legal parent-child relationship. After parental rights have been terminated, a child may be adopted without parental consent. Termination may be voluntary, based on the informed consent of the parent, or termination may be involuntary, following court proceedings brought against the parent."
[Killing Terri is permanent termination of parental rights. Where are the court proceedings against the Schindlers'...they do not exist; hence, their constitutional rights have been violated - possibly by Florida Children & Families...once again "state action"]. Judge Greer's order preventing Children & Families from taking custody is another "state action" violating the Schindler's constitutional rights, and he and others can be prosecuted under 18 U.S.C., Sec. 242. When Terri dies...the maximum sentence for violating 242 is the Death Penalty.
There is a question of federal constitutional law for the federal courts to decide in the Terri Schiavo case, which has not been adjudicated. The Federal Courts’ of Appeals are divided on the issue of whether the Due Process Clause protects a parent’s right to the companionship of his or her adult child. The Courts of Appeals for the Seventh and Tenth Circuits have recognized the parental liberty interest a parent has for an adult child. See Bell v. City of Milwaukee, 746 F.2d 1205, 1244-45 (7th Cir. 1984); Trujillo v. Board of County Comm’rs of Santa Fe County, 768 F.2d 1186, 1189 (10th Cir. 1985). In Bell, the Seventh Circuit was “unpersuaded that a constitutional line based solely on the age of the child should be drawn.” 746 F.2d at 1245. Terri’s age is irrelevant. Her medical condition is very relevant in conjunction with her parents current constitutional right to be parents, and it favors the right to keep Terri alive to preserve the liberty provision of the 14th Amendment.
In Daniels v. Williams, the Supreme Court made it clear that the “Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” 474 U.S. 327, 328 (1986). The Court went on to explain that the due process guarantee has historically been applied only to “deliberate decisions of government officials to deprive a person of life, liberty, or property.” Id. at 331 (emphasis in original). In the context of parental liberty interests, this limitation means that the Due Process Clause only protects against deliberate violations of a parent’s fundamental rights—that is, where the state action at issue was specifically aimed at interfering with protected aspects of the parent-child relationship. See Burgos, 807 F. 2d at 8.
In Troxel v. Granville, 527 U.S. 1069 (1999) Justice O'Conner, speaking for the Court stated,
"The Fourteenth Amendment provides that no State shall 'deprive any person of life, liberty, or property, without due process of the law.' We have long recognized that the Amendment's Due Process Clause like its Fifth Amendment counterpart, 'guarantees more than fair process.' The Clause includes a substantive component that 'provides heightened protection against governmental interference with certain fundamental rights and liberty interest" and "the liberty interest of parents in the care , custody, and control of their children-is perhaps the oldest of the fundamental liberty interest recognized by this Court."
It does not appear that Bob and Mary Schindler have not had their day in court yet to exercise their constitutional right to be “Parents” to Terri, their biological daughter who the court has ruled cannot take care of herself. Terri’s estranged husband, who refuses to give her a divorce, abandoned her for another woman and started a family, whereby he has two children out of wedlock. See Geiger v. Rouse, 715 A.2d 454, 458 (Pa. Super. Ct. 1998) (holding that the parents of an adult daughter over eighteen years of age were responsible for her unpaid medical bills because she was “unemancipated” at the time); Newburgh v. Arrigo, 443 A.2d 1031, 1037-38 (N.J. 1982) (“Attainment of age 18 establishes prima facie, but not conclusive, proof of emancipation . . . Whether a child is emancipated at age 18 . . . depends upon the facts of each case”).
Footnote from UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 02-2708 BOBBY McCURDY, Appellant, v. KIRK DODD
“The factual background in Geiger presents an interesting dilemma. In that case, the court heard relevant and credible evidence that the child, although over the age of eighteen, was 'totally dependent upon her parents as a result of her moderately severe cerebral palsy,' severe depression, and lack of means of employment. 715 A.2d at 458. Although in Geiger the parents were attempting to disclaim any liability for their daughter’s medical bills, we can conceive of situations where parents in similar circumstances would have a relationship with their adult child which is indistinguishable from a relationship with a minor child.”
From U.S. Supreme Court - MATHEWS v. ELDRIDGE, 424 U.S. 319 (1976) MR. JUSTICE POWELL delivered the opinion of the Court.
Procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e. g., Goldberg v. Kelly, supra, at 263-271. In May v. Anderson, , 345 U.S. 528, 533; 73 S. Ct. 840, 843, (1952), the court said: “The case of Mathews v. Eldridge, 424 U.S. 319, 335 , propounds three elements to be evaluated in deciding what due process requires, viz., the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to “the companionship, care, custody, and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, 405 U.S. 645, 651 . Here the State has sought not simply to infringe upon that interest, but to end it. If the State prevails, it will have worked a unique kind of deprivation. Cf. May v. Anderson, 345 U.S. 528, 533; Armstrong v. Manzo, 380 U.S. 545. A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one. [Is their any difference in terminating parental rights or taking Terri away from her parents by killing her?] No, No, No!
JUSTICE BLACKMUN, JUSTICE BRENNAN and JUSTICE MARSHALL At stake here is "the interest of a parent in the companionship, care, custody, and management of his or her children." Stanley v. Illinois, 405 U.S. 645, 651 (1972). This interest occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility. "[F]ar more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533 (1953), parental rights have been deemed to be among those "essential to the orderly pursuit of happiness by free men," Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and to be more significant and priceless than "`liberties which derive merely from shifting economic arrangements.'" Stanley v. Illinois, 405 U.S., at 651 , quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring). Accordingly, although the Constitution is verbally silent on the specific subject of families, freedom of personal choice in matters of family life long has been viewed as a fundamental liberty interest worthy of protection under the Fourteenth Amendment. Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977); Moore v. East Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534 -535 (1925); Meyer v. Nebraska, 262 U.S., at 399 . Within the general ambit of family integrity, the Court has accorded a high degree of constitutional respect to a natural parent's interest both in controlling the details of the child's upbringing, [452 U.S. 18, 39]. Wisconsin v. Yoder, 406 U.S. 205, 232 -234 (1972); Pierce v. Society of Sisters, 268 U.S., at 534 -535, and in retaining the custody and companionship of the child, Smith v. Organization of Foster Families, 431 U.S., at 842 -847; Stanley v. Illinois, 405 U.S., at 651 . May v. Anderson, Id.
Michael Schiavo has abandoned his wife, moved on, and he has made a new life with another woman, living in adultery in violation of Florida law 798.01. Why should Terri’s parents be denied the Constitutional Right to “the companionship, care, custody and management of his or her children?” As the United States Supreme Court has observed, the “liberty interest at issue in this case -- 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.” Troxel v. Granville, 530 U.S. 57, 65 (2000).
Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886). Parent's right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Reynold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S. Ct. 1598, 435 U.S. 963, Il, (1977). Is Terri’s incapacitated medical condition, or the fact that she is an adult a bar against her parents exercising their constitutional right to care for her? Of course not. In Santosky v. Kramer 455 U.S. 745, the court addresses the means by which one can terminate the parental rights of parents, which is exactly what is at stake here.
Michael Schiavo’s Guardianship versus the Parental rights of Bob and Mary Schindler. In Santosky the court said; “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to [p754] destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures… This Court has mandated an intermediate standard of proof -- "clear and convincing evidence" -- when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money." Addington v. Texas, 441 U.S. at 424. Notwithstanding "the state's ‘civil labels and good intentions,'" id. at 427, quoting In re Winship, 397 U.S. at 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma." 441 U.S. at 425, 426. See, e.g., Addington v. Texas, supra, (civil commitment); Woodby v. INS, 385 U.S. at 285 (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization); [p757] Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943) (denaturalization)… Fifteen States, the District of Columbia, and the Virgin Islands, by court decision, have required "clear and convincing evidence" or its equivalent. See Torres v. Van Eepoel, 98 So.2d 735, 737 (Fla.1957)… So far as we are aware, only two federal courts have addressed the issue. Each has held that allegations supporting parental rights termination must be proved by clear and convincing evidence. Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179, 1194 (SD Tex.1977), rev'd on other grounds sub nom. Moore v. Sims, 442 U.S. 415 (1979); Alsager v. District Court of Polk County, 406 F.Supp. 10, 25 (SD Iowa 1975), aff'd on other grounds, 545 F.2d 1137 (CA8 1976).”
The real issue here is the termination of Bob and Mary Schindler’s Parental rights to care for their daughter when she cannot care for herself. Her AGE is not a factor given the circumstances surrounding her condition. It’s about Constitutionally protected “Parental Rights” v. Guardianship. There is no constitutional protection to be a guardian. Has the happiness of Terri’s parents been adjudicated? NO! Is their happiness a constitutional right as it relates to caring for Terri? ABSOLUTELY YES! Is her age a factor? NO. Two U.S. Court of Appeals have said so.
Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S. Ct. 1879; 466 U.S. 429. Is there anyone alive who honestly believes that watching their daughter die will not result in injury to Bob and Mary Schindler, taking away their federally protected right to happiness under the 14th Amendment? Is the feelings of Judge Greer based on some bias? Can he use state law to violate the Schindler’s constitutional rights? NO! The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205 (1984).
COMPELLING STATE INTEREST The following two Supreme Court decisions were cited in a published opinion by Chief Judge Norman K. Moon of Court of Appeals of Virginia June 3, 1997 in the case Williams and Williams v. Williams and Williams 24 Va. App. 778; 485 S.E. 2d 651 (June 3, 1997). (1) Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. The Supreme Court noted its “historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” Santosky v. Kramer, 102 S. Ct. 1388; 455 U.S. 745, (1982). (2) In applying the protection of the Fourteenth Amendment, the United States Supreme Court has held that “[w]here certain fundamental rights are involved... regulation limiting these rights may be justified only by a 'compelling state interest' ...and ...legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. State interference with a fundamental right must by justified by a compelling state interest.” Roe v. Wade. 410 U.S. 113, 155 ; 93 S. Ct. 705; 35 L Ed 2d 147, (1973). [A] termination decree is "final and irrevocable." Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (emphasis in original). "Few forms of state action are both so severe and so irreversible." Ibid. [In Santosky,] [a]s in Lassiter, the Court characterized the parent's interest as "commanding," indeed, "far more precious than any property right." 455 U.S. at 758-759, 102 S.Ct. at 1397. Although both Lassiter and Santosky yielded divided opinions, the Court was unanimous in its view that "the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment." Santosky, 455 U.S. at 774, 102 S.Ct. at 1405 (Rehnquist, dissenting).
Is terminating the parental rights of a parent any different than taking the life of someone’s adult child who has not been sentenced to death? What crime did Terri commit to deserve to die? What did her parents do to deserve losing their child? How does anyone justify this?
SUPPORTING FEDERAL DISTRICT COURT DECISIONS The rights of parents to care, have custody and nurture their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin , 440 F Supp 1247; U.S. D.C. of Michigan, (1985). Parent's interest in custody of their children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437: 5 Kansas App Div 2d 584, (1980).
The court has ruled that Terri cannot take care of herself. Her husband has moved on…no longer wants to be her husband. Question? Why can’t her parents exercise their Constitutional Right to be her Parents? Care for her, nurture her, give her therapy, enjoy her companionship…there is no legal reason why they can’t and they should petition the court and exercise their protected rights as Parents. There is no compelling state interest in killing her! A parent's right to the preservation of his/her relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 58-95-599 (1983).
When a child cannot take care of themselves and the spouse abandons his partner, the parents have a legal right to step in and be PARENTS. Michael Schiavo gave up his right to Terri when he took another woman and created a family of his own, outside the marriage, and in violation of Florida law 798.01. The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus a state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).
A legal interest in a child of legal age who is incapacitated exists when the incapacitated adult has been abandoned by their spouse. A parent's right to the custody of his or her children is an element of “liberty” guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App. Div. (1983). No bond is more precious and non should be more zealously protected by the law as the bond between parent and child. Carson v. Elrod, 411 F Supp 645, 649 (1976).
Terri’s husband has moved on, her Parents have not…they are by her side willing and able to take care of her. The U.S. Constitution gives them the right to care for her. Echoing the thought behind the words of Marcus Tullius Cicero, that "Of all nature's gifts to the human race, what is sweeter to a man than his children?," The Constitution protects and Federal and State Courts must protect, under the "life, liberty and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. See Griswold v. Connecticut, 381 US 479 (1965). State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. See Gross v. State -20-of Illinois, 312 F 2d 257 (1963).
CONCLUSION Pictures clearly show that when Terri Schiavo sees her mother that she responds positively. Anyone paying close attention can see the bond, and I’m sure it’s like this with her father and other family members. The family unit has constitutional protection. Is there "clear & convincing evidence" to terminate the Scindler's constitutionally protected parental rights? NO! I hope Bob and Mary Schindler’s Constitutional Right to be Parents to Terri sees its day in Court before it’s too late. Bob and Mary Schindler should not have to file for a Patent on their DNA to protect their man made creation known as Terri. Hopefully they will go into U.S. District Court and seek a TRO based on their Constitutional Right to be Parents to Terri. Terri’s imminent death certainly meets the requirements for a TRO. They can seek injunctive relief against the state for violating their constitutional rights. To allow this family to lose Terri, and worse, make them have to watch her die, will cast shame on this country FOREVER! Michael Schiavo’s so-called guardian rights do not trump the U.S. Constitution and Bob & Mary Schindler’s Constitutional Right to be her Parents. The age of one’s child has no bearing on whether a Mother or Father still have protected parental rights [7th & 10th Circuits]. Terri’s age is a moot point within the legal guidelines of parental rights. The law does not define parents as only those with minor children. To take Terri away from her parents under the current circumstances shakes the root of conscience within our society. Killing Terri is termination of Parental Rights and requires serious review by the federal courts. Let the Constitution do its job. The U.S. District Court should allow a TRO because there is no state standard for terminating parental rights, therefore only the federal standard exists and Michael Schiavo cannot meet it. Good luck Bob & Mary Schindler.
William Lovern, Sr.
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