Having previously written about the basics of termination of parental rights in Mississippi, it seems apropos to elucidate on the more subtle realities of a termination of parental rights case in the Chancery Court setting.  Here are ten pragmatic considerations I think everyone should think about whether they intend to pursue terminating someone’s parental rights or their parental rights may be terminated.

1. Effort matters

If you try, sincerely try to be an active part of your child’s life and to get your life in order, the court should not be able to terminate your rights. Even if you have faded out of the child’s life for quite a while, taking action to be a parent makes a huge difference. Similarly, if you are facing other issues (chronic unemployment, alcoholism, drug addiction, early life criminality), taking demonstrable steps to show that you are no longer that person matters a great deal. AA, NA, job pursuit, etc. could make or break the case. Truthfully, it does not take much to stop your rights from being terminated. Just try for real. No gimmicks. No half-measures. Try. The rest of us do it every day.

1. Kids do not have to wait forever for their parents to step up.

Life moves fast and childhood moves even faster.  While a parent struggles with addiction, immaturity, criminality, or whatever it is that keeps them from being a good parent, the child continues to grow up. They move on and often a new adult steps into the parental role. At some point, it is too late. The law sets it at six months/a year, but the reality often takes much longer as the parent fades in and out of the child’s life. Yet, at some point, the kid has waited long enough and the non-custodial parent has for all intents and purposes forfeited their right to be a parent.

1. Intentionally cutting a parent out of the kid’s life on purpose may prevent termination

On the other end of things, if the custodial parent cuts the other parent out unilaterally, blocking them from contacting the children at all, the parent’s whose rights are subject to termination can use that as a defense. You cannot desert a child who you are actively being prevented from seeing or contacting. However, effort still matters. Taking action to enforce your rights through the court system is the appropriate avenue to combat a parent who won’t let you see or talk to your child. Sitting around and waiting is not.

1. Drug Addiction is often fatal to a person’s parental rights, even if you get sober.

One of the most difficult issues facing the Chancery Court centers on what to do about chronic drug addicts. Experience (daily experience) in the court shows how fragile sobriety is and the devastating consequence on children when a parent relapses. Combine this with the length of time the parent has abused drugs while their kid is raised by someone else, and the court may feel that it is not worth experimenting with the child to test your sobriety. That being said, continued drug addiction makes termination a much easier decision for the court.

1. Waiting to terminate someone’s rights may end up preventing an adoption

On the other end of things, not taking action to terminate a parent’s rights gives that parent time to fix their lives. It makes sense not to poke a sleeping bear i.e. if the dangerous parent has simply disappeared from the child’s life, the custodial parent may think it is best to let sleeping dogs lie and just move on, particularly if the initial custody case or relationship was difficult, but people change and at some point they may not be morally unfit anymore and they may sincerely want to support the child, at which point the court may find that even if the grounds existed for a while it is no longer in the child’s best interest to have their parent’s rights terminated. As stated above, effort matters. Getting clean and sober, paying child support, and then suing to reinstate visitation from the get go creates a sort of prima facie case against desertion, moral unfitness, and abandonment.

1. If your rights are on the line, you are entitled to an attorney

If you cannot afford an attorney, the court is obligated to appoint an attorney for you. That is how seriously the state takes termination of parental rights, you are afforded the same right to a free attorney as a person facing incarceration.

1. You can voluntarily agree to have your rights terminated

The law allows for a parent to sign a form voluntarily terminating their rights. A person’s rights are not terminated until the court accepts the voluntary relinquishment of parental rights, but this is the simplest mechanism to have your rights terminated. Often when an absent or deeply troubled parent realizes that they have been displaced by a more active and loving step-parent and the child has adjusted to this new parent, sees them as their real parent, and that new person wants to adopt the child, the non-custodial parent may recognize that the adoption is in the best interest of the child and make the magnanimous decision to let the child move on with his or her life in peace, or they just want to stop paying child support.

1. You cannot unilaterally terminate your own rights

This one should be obvious, but you cannot just waive your parental responsibilities because you do not want to be a parent to your child or to avoid child support. Public policy weighs heavily against such awful behavior. Some lawyers will sue to terminate their own client’s rights, but these suits are borderline bad faith in my opinion and require the other party to agree to the termination.

1. The Guardian ad Litem holds a great deal of sway over the outcome of the lawsuit

The court will assign an independent attorney to conduct an investigation into the allegations and make recommendations as to what he or she believes to be in the child’s best interest. The Guardian ad Litem does not act as anyone’s attorney, but as more of an investigator for the court with the mandate to protect the minor child’s best interest. The GAL gets to go to peoples’ homes, review medical records, speak to witnesses, meet the children, interview the parents and pursue whatever they deem necessary to make a determination as to what is in the child’s best interest. Practically, this means that the Guardian ad Litem receives a much more nuanced view of the situation than the court will get in a day or two of trial. Work with the Guardian ad Litem to help him or her understand what is in the child’s best interest.

1. The Best interest of the child rules all

Amongst all of these issues, one consideration looms large over everything else - the best interest of the child. Regardless of the amount of proof on the grounds for termination, if the court determines that cutting a parent completely out of the child’s life is not in the child’s best interest, the court does not have to terminate the parent’s rights, and, in fact, should not. If the court finds that the parent subject to termination has completely reformed him or herself, but the grounds for termination have been established and the court thinks it is in the child’s best interest for his or her parent’s rights to be terminated, then that remains the appropriate course of action.

These are just a few of the considerations and realities of termination of parental rights cases in the Chancery Court. Each case is different and it is important to speak with an attorney about your situation if you intend to sue someone to terminate their rights or if someone has sued you to terminate your rights.

This is unfair.

I only want what is fair.

The judge is being unfair to me.

I hear these sorts of statements and my eyes automatically begin to roll. Notions of fairness are wildly subjective, jejune, and inevitably small-minded and self-centered. What you think is fair for you inevitably seems unfair to the other person. What is just, on the other hand, requires looking outward for an honest rendering of the facts and reflecting inward to balance multiple interests to determine what resolution is correct and reasonable. In the legal world and in the moral world, we deal with justice, not fairness. Justice is for grown-ups; fairness is for children.

Regardless of my distaste for complaints about fairness, people tend to find the concept of fairness much easier to grasp than justice. Often my job centers on teaching parents about justice by recontextualizing the question of fairness to its proper nexus - the kids. After all, the polestar consideration of the chancery court is the best interest of children, and no parent can say with a straight-face that they do not want the best for their kids.

So the question becomes: What would be fair for the children? The answer, unfortunately, must be that nothing about this custody issue is fair for the children. They did not ask to be in a custody dispute, they did nothing to contribute to it, but they must suffer the consequences of their parents’ actions. Recognition of this truth helps provide the correct perspective for assessing a custody case. Once a parent agrees that the entire situation is fundamentally unfair for the children, then we can begin to work our way towards a just result.

First, should the children even see the other parent? Sometimes the answer is no. If the parent acts violently, abuses drugs and alcohol, and/or refuses to take any steps to remedy their destructive behavior, the child may legitimately be better off not seeing that parent. The just result requires removing the toxic parents permanently from the child’s life so that the child may live with the stability he or she needs to be safe and to recover from the trauma of having his or her parent(s) choose vice over their children.

Often the parent demanding fairness for themselves perpetrates the violence and/or abuses drug or alcohol. Unsurprisingly, these people often blame the unfair world for their self-inflicted problems. However, denial about their own role in the destruction of their lives does not always blind them to objective truth. Then the question becomes whether it is fair for your child to experience life with an addict or to witness violence, regardless of the perpetrator. Of course, the answer must be no. If it is anything else, then the court already has its answer. But if a parent agrees that the child should live his or her life without exposure to violence or addiction, then the parent must take steps to demonstrate a commitment to a violence and/or addiction free life. N.A., A.A., Rehab, DVIP courses, anger management, regular drug tests, counseling, therapy, etc. These are the tools through which a parent can prove his or her dedication to a better life. If a parent refuses, again the court has its answer. If the parent complies (and also behaves correctly) then the court also has an answer.

Parents will often blame the other for such behavior or endeavor into whataboutism to call into question the fairness of the inquiry or the requirements placed upon them i.e. she’s the real addict, she’s the real abuser, she’s the one who got arrested, I don’t have a problem but for her. Again I role my eyes at the immaturity. It does not matter what the other parent did because it does not change what needs to be done. If one parent takes the steps to assure the court that he or she has remedied their ways and the other parent has only whined and complained about how unfair it is, then the court has its answer. It is fairer for the child to have one parent who has remedied his or her ways than two parents who refuse to address any issues.

Questions of violence and addiction exist in only a percentage of custody disputes. Parental disputes exist in all. What is fair for the child is for the parents to put aside their personal grievances and work as a team to provide the child with the best life possible. What that means is consciously and consistently choosing to take the high road. The other parent gets under your skin? So what, act like an adult and toughen up. The other parent antagonizes you? So what, act like an adult and don’t take the bait. The other parent won’t share information? So what, act like an adult and get the information yourself. The other parent makes you angry? So what, act like an adult and hold your tongue. Do not give the other parent an excuse to act like a petulant child, behave yourself like a responsible, well-adjusted adult, and you will always end up looking like the responsible, well-adjusted parent. That is best for you, best for your kid and best for your court case. The result may not appear fair to the other parent, but, god-willing, you will see the justice in the court’s decision.

We have a saying in our local Chancery Courts that might as well be gospel.

Thank God for Grandparents.

Sometimes it’s because of drugs. Sometimes it’s because of alcohol. Sometimes it’s because of violence. Sometimes it’s plain ol’ immaturity and selfishness. Whatever the reason, all across the Mississippi Gulf Coast and the rest of the USA, grandparents, uncles, aunts, and step-parents have stepped up when the biological parents have stepped down.

Almost uniformly, the caregivers expect their role to be temporary. Maybe the parent enrolled in a treatment program. Maybe the parent swears up and down that he or she applied to a new job. In the meantime, you have grown to love those kids as if they were your own, and you know that they rely on you to provide a safe, consistent, and stable home for them.

What do you do when you have a child in your home and you no longer believe that the parent(s) is ever going to get their act together?

Worse, what are you going to do when the parent feels like they are ready to have their kid(s) back, but you know the parent is not ready. You certainly do not want to let these precious gifts from God return to an unsafe environment.

So long as you do not have a court order giving you custody or guardianship over the children, those kids are always at risk of being taken out of your home by their troubled mom or dad. No one but the parents have a right to those children without a court order. “The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates.” Miss Code Ann. §93-13-1. Unless a court has appointed you as the guardian/custodian of the children, the parents remain as such and can take their kids back at their discretion.

Of course, if you are in a situation in which you are having to protect children from the dangers posed by their biological mother and father, you simply cannot allow this to happen. You know that all of the parent’s wishes and promises mean nothing when it comes to raising children. Kids need consistency, stability, and love, which you have provided and will continue to provide.

Still, what can you do when the parent wants their kid back?

Often, if you are in a situation in which you are raising someone else’s children, you have a good shot at getting custody of those kids.

However, life and law are complicated. So here are three things you must know if you are considering getting custody of your grandkids, nieces, nephews, step-children, etc.

1. What is the natural parent presumption?

   At its most basic, the natural parent presumption means that it is presumed by the court that it is in the best interest of children to be raised by their natural parents. This is significant as the “polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003 (Miss 1983). If the court’s polestar consideration is a child’s best interest, and it also presumes that the child’s best interest is to be with its parents, then presumptively the custody should be with the parents.

   Of course, there is a sound reason for the natural parent presumption. In Mississippi, we believe the bond between parent and child situates the parent as the best person to raise his or her child, or, as the Mississippi Supreme Court eloquently stated in the landmark case, Hibbette v. Baines, “nature and the law ratifying nature assume that the author of their being feels for them a tenderness which will secure their happiness more certainly than any other tie on earth…. the presumption naturally and legally is that [the parent] will love them most, and care for them most wisely.”  Hibbette v. Baines, 78 Miss. 695 (1900). The belief in the divine bond between parent and child justifies giving preference to natural parents, even against those who have stood in their place, and, in doing so, honors and protects the fundamental right of natural parents to rear their children. Davis v. Vaughn, 126 So.3d 33 (Miss. 2013).

   At a fundamental level, this makes perfect sense. The parent and child relationship is special. We do expect parents through nature itself to go farther than anyone in protecting and providing for their children. I know I feel that way about my children. God forbid, if something happened and my parents had to take care of my kids for a few months, you better believe I would want them back as soon as I got back on my feet and would be doing everything in my power to see them and support them while I did so. Of course, I love and take care of my children. Other parents, for whatever reason, do not. They will refuse to support or visit their kids. They will choose drugs or alcohol over their kids. They will, from whatever mental or physical illness they may suffer, actually be unable to take care of their kids. So what happens then?

2. Can you overcome the natural parent presumption?

   Of course. The natural parent presumption merely presumes that custody remaining with the parents is in the child’s best interest. That certainly does not mean that under the specific facts of the case it is in the child’s best interest for the child’s parents to have custody. In fact, if the parent fits in any of the divisions listed above (addiction, violence, complete abdication of parental responsibilities) it is likely that it is not in the child’s best interest to remain with his or her parents.

   In fact, this is codified in our law.

   In the same statute that declares that the natural parents are the joint natural guardians of their children, it goes on to state: “But if any father or mother be unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person, or having appointed the father or mother, may remove him or her if it appears that such person is unsuitable, and appoint a suitable person.” Miss Code Ann. §93-13-1.

   The actual custody statute specifically sets forth the scenario in which a third-party should receive custody of the child(ren). Miss. Code Ann. § 93-5-24 (e) states that: “ Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:

   (i) The person in whose home the child has been living in a wholesome and stable environment; or

   (ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

   Of course, this is a good policy. While a parents’ right to raise their child is a sacred right, a sacred duty obviously accompanies it. If a parent fails to fulfill their duty to their children, the court must look out for the child’s best interest.

3. What do I have to prove to overcome the natural parent presumption?

   So there are three ways to overcome the natural parent presumption. You must show by clear and convincing evidence that the parents (1) abandoned the child; (2) deserted the child; or (3) are mentally, morally or otherwise unfit to rear and train them.

   Abandonment is defined “as importing any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” Petit v. Holifield, 443 So.2d 874 (Miss. 1984); citing Ainsworth v. Natural Father, 414 So.2d 417 (Miss. 1982). So abandonment means action (or inaction) indicating that the parent has decided to give up his or her right to her children. For example, if a parent has not had contact with the child or provided any support or reached out whatsoever in over a year such conduct indicates that they have abdicated their role as a parent and may constitute abandonment.

   Desertion is different than abandonment. Where abandonment deal with giving up a right, desertion involves the avoidance of one’s duty to his children. Petit v. Holifield, 443 So.2d 874 (Miss. 1984); citing Ainsworth v. Natural Father, 414 So.2d 417 (Miss. 1982). So the question is whether the parent has actively avoided their duties to their children as opposed to leaving his or her children. While a parent has a right to their child, parents also have a duty to take care of their children. As the court wrote in Hibbette, “the law at the birth of an infant imposes upon the parent the duty of such care and protection, to the performance of which the instincts of nature so readily prompt, and clothes him with the right of custody, and that he may perform it effectually, upon the presumption that such custody, being in harmony with nature, is best for the interest, not only of the parent and child, but also of society.” Where a parent has foresaken his or her duty by avoiding his or her responsibilities to his or her children, not supporting them, not taking care of them, not being their parent, leaving them in the care of others, such behavior constitutes desertion.

   The final category under which a third-party may take custody of children over the objection of the natural parents is where the parent is morally, mentally or otherwise unfit to rear the children. For example, a parent who is a chronic drug user or alcoholic is likely to be both morally and mentally unfit to rear children (though occasionally drinking beers or having a past drug problem rather than a current drug problem likely will not count). Similarly, a parent who is excessively violent, perpetually homeless, or is a criminal may constitute unfitness. However, simply being unprepared for the rigors of parenthood does not fall under this rubric.

Finally, a practical point:

If you are raising someone else’s children, there is a reason you’re are doing so. One way or another, the parent is failing to uphold his or her responsibilities. However, context matters. If the parent is struggling, needs help, accepts help, and then proceeds to do better, a court is likely going to return their children. This is especially true if the parent continues to take an active role in the child’s life. If the parent visits often, pays support, even if it is just a pittance, and genuinely tries to maintain a relationship with the children, you will be hard-pressed to prove that the parent abandoned or deserted their children.

Unfortunately, that is not often the case. If you are legitimately worried about the child’s mental, emotional, and/or physical well-being in the parent’s household, there is a good chance the judge will feel the same way. At the very least, legal action can help push the parent to live up to their hollow promises. That being said, if you have been down this path with the parent(s) before, trust that it is a cycle and that you need to act sooner rather than later. It is easier to get custody before the parent temporarily gets back on their feet. If you are in a position where you are taking care of someone else’s children, contact an attorney immediately to discuss how you can ensure that those kids remain safe and happy.

How do Chancellors (judges) make a custody determination?

Well, since the landmark 1983 Mississippi Supreme Court Case Albright v. Albright, Chancellors have had the explicit mandate to make custody determinations based on the best interest and welfare of the children. While that had arguably been the rule for decades before the Albright decision, it had not necessarily been the practice.

Before the mid-19th century, in both the United States and in Jolly Ol' England, children were viewed as their father's property. This was based on the Roman doctrine of patria potesta (power of the father), which gave the father, as the head of the household, rights over his children.

As the famous legal scholar, William Blackstone put it: "The legal power of a father, —for a mother, as such, is entitled to no power, but only to reverence and respect; the power of a father, I say, over the persons of his children ceases at the age of twenty-one: for they are then enfranchised by arrive at years of discretion, or that point which the law has established, as some must necessarily be established, when the empire of the father, or other guardian, gives place to the empire of reason. Yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children."

However, as early as the mid-17th century, there were movements towards the best interest standard. Lord William Mansfield, a brilliant and massively influential English jurist, began to disrupt the age old doctrine of patria potesta in favor of the the doctrine of parens patriae, which gave the government legal authority to protect those who cannot protect themselves i.e. children and disabled people. In Rex v. Delaval (1763), Lord Mansfield emancipated an 18-year-old daughter rather than return her to her father, who had sold her into prostitution. Lord Mansfield noted that his ruling did not conflict with previous court decisions awarding custody to the father. However, he clarified that the court does not return children to their fathers because they are their father's property but because the facts of the case require it, and, on the facts of the Delaval case, this child should be emancipated rather than returned.

A few years later, Lord Mansfield reasserted this logic in the Blissets case. In Blissets, Lord Mansfield allowed a six-year-old to remain with the mother rather than returning him to his father. Lord Mansfield reasoned that (1) when parties disagree, the court will do what shall appear best for the child; and (2) a father who has abandoned his parental duties has forfeited his parental rights.

Unfortunately, Lord Mansfield's views were ahead of their time, and courts largely went back to uniformly awarding custody of children to their fathers.

Things changed through the 19th century, moving our custody law towards the Tender Years Rule, which would result in a 180-degree change in custody awards. There were pragmatic changes to family dynamics for one. When families resided in a largely agrarian society the family acted as its own little economic unit, and the property view of children at least made practical sense. However, as the industrial revolution went full tilt, fathers started working outside the home, and mothers increasingly stayed home with children forfeiting the primary reasoning for uniformly awarding custody to fathers.

You also began to see courts recognize the importance of mothers with increased frequency. In the landmark case, Commonwealth v. Addicks (Penn. 1813), the Pennsylvania court, citing Lord Mansfield's opinion in Rex v. Delavalheld that it was not bound to return the children to their father and would only do so "if we think that, under the circumstances of the case, it ought to be done." The court then awarded custody to the mother.

Things shifted again in England by the early to mid-19th century. In Rex v. Greenhill (England 1836), the father left his family to be with his mistress, leaving behind three children under 6. He later brought a writ of habeas corpus to retrieve his children to force a reconciliation with his wife. The court concluded that it had no authority to deny the father custody though they loathed making such a ruling. In desperation, the mother fled with the children. This case ultimately led to a change in English law, giving Chancery courts the power to order maternal custody for children under seven and visitation rights for children of any age so long as she was not guilty of adultery. The statute was later amended in 1973 to extend the maternal custody up to the age of 16.

Finally, the Tender Years Rule came into full force and effect in Mississippi in 1879. In Johns v. Johns, the Mississippi Supreme Court granted custody of two young children to the mother, writing:

"The fruits of this unfortunate marriage are two children, one about four years old, and the other about two years of age. They should be with their mother. They need her care and attention. They would have been with her but for the breach of his marital duties by their father, which drove the mother from her home."

For approximately 100 years following the Johns case, the Tender Years rule predominated Mississippi custody law, and mothers were almost uniformly granted custody of children, particularly small children. The rule can be summarized as follows:

'In all cases where any child is of such tender age as to require the mother's care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.'

-Amis, Divorce and Separation in Mississippi, Sec 219, p. 296

However, just as societal changes pulled custody decisions away from uniformly giving custody to fathers, societal changes also led to the subordination of the Tender Years rule. In the latter half of the 20th century, family dynamics began to shift. More and more women were working outside of the home. More and more men were sharing in the parenting responsibilities for their children. Without the clear demarcation of a mother's role versus a father's role, the applicability of the Tender Years Rule became increasingly suspect. More simply, it quit making sense that a mother should automatically receive custody of her children simply because she is the mother.

The latter half of the 20th century also saw a rise in equality lawsuits. Based on the Equal Protection Clause of the 14th Amendment, challenges to laws that were discriminatory on the basis of sex (amongst other things) began to shift the legal landscape. In the United States Supreme Court decision Orr v. Orr, an Alabama law that only allowed alimony to be awarded to women was struck down as unconstitutional. As Justice Brennan explained:

'A gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny.'

Which brings us to Albright v. Albright.

The Albrights were a young married couple living on the Gulf Coast. Both were enlisted in the Air Force. They made commiserate pay. They shared in the rearing of their son. They were both found fit to have paramount custody of the minor child, yet the mother was awarded custody of the child based on the Tender Years rule. The father appealed, arguing that the ruling and the Tender Years Rule itself violated his 14th amendment rights.

However, the Mississippi Supreme Court did not reach the constitutional question. Mississippi already had a law on the books that would resolve the matter. Per §93-13-1 of the Mississippi Code, "The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor…" As such, neither parent has a preferential right to the minor child.

The court, in its wisdom, did not altogether rid our jurisprudence of the Tender Years. Instead the court subjugated it to the polestar consideration of the Chancery Court - the best interest and welfare of children. Instead, it became just one factor amongst many that the judge is to consider when determining what custody arrangement is in the best interest of the children. The court wrote:

"The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship."

The court further clarified that "[m]arital fault should not be used as a sanction in custody awards. Relative financial situations is not controlling since the duty to support is independent of the right to custody. Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions."

Since the Albright decision, our Supreme Court repeatedly reaffirmed that the polestar consideration in a custody determination is the best interest and welfare of children, and has continued to require that chancellor's utilize the "Albright factors" in making a custody determination. However, the factors are not a mathematical formula. One factor may end up being dispositive as, again, the best interest of the children is the polestar consideration. But that topic is for another day. Suffice it to say that we have over thirty years of case law clarifying, muddying, and extrapolating the Albright holding.