August 21, 2019

Tenth Circuit: Parental Privilege is Constitutionally Protected Interest and Restrictions on Parenting Require Heightened Justification

The Tenth Circuit Court of Appeal issued its opinion in United States v. Bear on Friday, October 31, 2014.

In 2001, Wesley A. Bear was convicted in Iowa state court of two counts of committing lascivious acts on a child following offenses involving two children under 12 years of age. As a result of these convictions, Mr. Bear is required to register for life as a sex offender under the Sex Offender Registration and Notification Act (SORNA). In 2010, Mr. Bear was convicted of a SORNA violation in a different part of Iowa. He subsequently purchased a trailer home and registered at the trailer’s address, but he and his wife and children moved to Oklahoma City and Mr. Bear failed to update his registration. He was arrested and charged with failure to comply with SORNA. He pled guilty, and was sentenced to 23 months imprisonment followed by 5 years’ supervised release with sex offender conditions, including requirements that he submit to sex offender mental health assessment and treatment, a prohibition on being at any residence where children under age 18 are residing, and a prohibition on associating with children under the age of 18 unless in the presence of a responsible adult who is aware of his criminal background. He objected to the imposition of the special conditions, arguing they were too remote in time to be reasonably related as conditions of his supervised release, that they prevented him from parenting his own children, and that he previously underwent sex offender mental health treatment around the time of his previous conviction. The district court overruled Mr. Bear’s objections and imposed the special conditions, and Mr. Bear appealed.

The Tenth Circuit, noting that district courts have broad authority to impose special conditions of supervised release, first addressed Mr. Bear’s contention that his prior convictions were too remote to be reasonably related to his supervised release. The Tenth Circuit found that, although his convictions were 12 years old and he had shown no further proclivity toward sexual deviance since his original conviction, the facts surrounding the original incidents were troubling, and the requirements of mental health assessment and treatment were appropriate. The Tenth Circuit also found no error in the district court’s reliance on the probation officer to determine when Mr. Bear was ready to be released from mental health treatment.

Next, the Tenth Circuit turned to Mr. Bear’s argument that the condition against being at any residence where minor children resided prevented him from associating with his own children. The Tenth Circuit found that the imposition of special conditions should not deprive a parent of his constitutionally protected parental privilege. Mr. Bear had not committed any sexual offense in the 12 years since his original offense, did not display continuing sexually deviant tendencies, and had never shown himself to be a danger to his own three children. The Tenth Circuit vacated the imposition of conditions that prevented Mr. Bear from parenting his own children. However, the Tenth Circuit found no error in the imposition of the special conditions as related to other children.

The district court’s sentence was affirmed as related to the mental health assessment and treatment, and also as to the restrictions involving unrelated children, vacated as to the restrictions regarding Mr. Bear parenting his own children, and remanded for further proceedings.

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