Law Commons^™

Termination Of Parental Rights As A Private Remedy: Rationales, Realities, And Remedies, Deirdre M. Smith

Faculty Publications

Terminating a parent’s rights—a drastic measure—is commonly associated with public child welfare proceedings, where a state or county child protective services agency has removed a child from their home based on findings of abuse or neglect. In fact, state laws across the country also permit private individuals to petition a court to terminate another person’s parental rights. While private termination actions are not uncommon, there has been scant scholarly examination of these matters, their underlying purposes, and their role in contemporary family law. Termination of parental rights orders in any context interfere with parents’ fundamental constitutional rights, but parents in …

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Articles

In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court has held that …

Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran

Articles

In many jurisdictions, once a parent has her rights terminated to one child, the State can use that decision to justify the termination of parental rights to another child. The State can do so regardless of whether the parent is fit to parent the second child. This article explores this practice, examines its origins, and discusses its constitutional inadequacies.

In Re: Parental Rights As To R.T., K.G-T., N.H-T. And E.H-T, 133 Nev. Adv. Op. 38 (June 29, 2017), Brittni Griffith

Nevada Supreme Court Summaries

The Court reviewed an appeal based on the termination of an individual’s parental rights. The Court held that “[a] party petitioning to terminate parental rights must establish by clear and convincing evidence that (1) termination is in the child’s best interest, and 2) parental fault exists.” Relying on previous decisions, the Court confirmed that poverty may not be a factor when it determines “parental fault,” but the Court may consider a parent’s compliance with a case plan. Here, the Court reaffirmed the district court’s decision because it relied on “substantial evidence” that Appellant did not follow her case plan, despite …

A Child's Journey Through The Child Welfare System, Ann M. Haralambie, Donald N. Duquette

Book Chapters

Once a child is known to the government child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others - all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. Some children …

In Re Parental Rights As To A.P.M., 131 Nev. Adv. Op. 66 (Sept. 10, 2015), Douglas H. Smith

Nevada Supreme Court Summaries

On appeal from an order for termination of parental rights, the Nevada Supreme Court held, by a vote of 4-2, that (1) the district court may terminate parental rights notwithstanding a completed case plan for reunification if the decision is otherwise warranted under NRS §128.105; that (2) the court need not wait a full 20 months to apply the statutory presumptions of NRS §128.109(1)(a) and NRS §128.109(2) if a child has been removed from his or her parents’ home pursuant to Chapter 32B for at least 14 months of any consecutive 20-month period; and that (3) upon application of these …

Parents With Mental Disabilities: The Legal Landscape, Dale Margolin Cecka

Law Faculty Publications

The ADA, coupled with federal and state child welfare laws, provides broad brush strokes for advocates of parents with mental disabilities and their children. To effectuate parents’ rights, child welfare professionals must work with the parents themselves, as well as with other state departments, to form service plans that are tailored for the success of each individual family.

Prison, Foster Care, And The Systemic Punishment Of Black Mothers, Dorothy E. Roberts

All Faculty Scholarship

This article is part of a UCLA Law Review symposium, “Overpoliced and Underprotected: Women, Race, and Criminalization.” It analyzes how the U.S. prison and foster care systems work together to punish black mothers in a way that helps to preserve race, gender, and class inequalities in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that each …

2011 Survey Of Juvenile Law, Michael J. Dale

Faculty Scholarship

Atypically, the Supreme Court of Florida was not active during the past year, deciding no cases in the juvenile law field. On the other hand, the intermediate appellate courts were active both in the delinquency area and in the dependency field. As in the past, decisions in the delinquency area involving generic issues of criminal procedure not unique to juvenile delinquency are not covered in this article.

Victimized Twice: The Reasonable Efforts Requirement In Child Protection Cases When Parents Have A Mental Illness, Jeanne M. Kaiser

Faculty Scholarship

State child protection agencies are required by federal law to exert reasonable efforts to keep families together before seeking termination of parental rights. Some states, however, have created an exception to this requirement when the parent involved suffers from a chronic mental illness. Moreover, even in those states that enforce the requirement, the reunification services provided to parents with a mental illness often do not meet the needs of those parents.

This Article argues that although parents with a mental illness face serious challenges in caring for their children, they should not be categorically excluded from reunification efforts by means …

No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used To Review Wrongful Denials Of Counsel To Parents In Child Welfare Cases, Vivek Sankaran

Articles

The application of a harmless error standard by appellate courts reviewing erroneous denials of counsel in child protective cases undermines a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts, on numerous occasions, improperly reject valid requests for counsel, forcing parents to navigate the child welfare system without an advocate. Appellate courts excuse these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty. The only appropriate remedy for this significant problem is a bright-line rule …

Child Protection Law And Procedure, Frank Vandervort

Book Chapters

Child protective proceedings involving non-Indian children are primarily governed by the Child Protection Law (CPL), MCL 722.621 et seq.; the Juvenile Code, MCL 712A.1 et seq.; and subchapter 3.900 of the Michigan Court Rules. Taken together, these sources of authority establish a comprehensive scheme for reporting cases of suspected abuse and neglect, investigating those reports, and responding, when necessary, with appropriate legal action. For child protective proceedings concerning Indian children, see chapter 25. While these statutes form the primary authority for handling child protection proceedings, practitioners must be aware that federal law, specifically Title IV-E of the Social Security Act, …

A Child's Journey Through The Child Welfare System., Susan Badeau, Ann M. Haralambie, Donald N. Duquette

Book Chapters

Once a child is known to the government child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others-all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. Some children enter care …

The Impact Of The Adoption And Safe Families Act On Children Of Incarcerated Parents, Arlene F. Lee, Philip Genty, Mimi Laver Child Welfare League Of America

Faculty Scholarship

On November 9, 1997, President Bill Clinton signed the Adoption and Safe Families Act of 1997 (ASFA) to improve the safety of children, to promote adoption and other permanent homes for children, and to support families. The changes in ASFA are important to ensure the safety of children and increase their likelihood of placement in permanent homes. The change that requires close examination is the timeline for initiating the termination of parental rights (TPR) proceedings. Many people have questioned whether these changes, if applied in their strictest terms, have had a detrimental effect on children of prisoners, because a large …

Collateral Children: Consequence And Illegality At The Intersection Of Foster Care And Child Support, Daniel L. Hatcher

All Faculty Scholarship

This Article is the third in a series addressing the conflict between state revenue maximization strategies and the missions of state agencies serving low-income children. The Article examines the policy of foster care cost recovery through child support enforcement. When children are removed from poor families and placed in foster care, federal law requires child welfare agencies to initiate child support obligations against the parents. Resulting payments do not benefit the children but are converted into a government funding stream to reimburse the costs of foster care. This cost recovery effort often subordinates the child welfare system’s primary goals of …

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

Legal Constraints On Child-Saving: The Strange Case Of The Fundamentalist Latter-Day Saints At Yearning For Zion Ranch, Catherine J. Ross

GW Law Faculty Publications & Other Works

It may seem counterintuitive, but children in foster care are more likely to achieve permanency if we take the legal rights of their parents seriously. When all state actors, from social workers to judges, consider parental rights before removing children from their families or terminating parental rights, subsequent adoptions are more likely to be insulated from ongoing litigation, or in the worst instance, revocation. I am a strong proponent of children’s rights. In the context of the child welfare system, however, respect for the rights of parents can protect children from unnecessary and frightening disruptions. The doctrine of parens patriae, …

The Ultimate Best Interest Of The Child Enures From Parental Reinforcement: The Journey To Family Integrity, John C. Duncan Jr.

Journal Publications

Most Americans agree that we are in the midst of a dangerous decline in moral and religious values that threatens the very foundation of our society. The facts are clear: marriage as a social institution is threatened and child well-being is affected. Part II of this Article traces the best interest of the child doctrine. Part III examines what the legally recognized rights of parents have been in the past and shows how those rights have been threatened or altogether eradicated in the best interest of the child. Part IV evaluates the opposing positions of both parental rights advocates …

A Child's Journey Through The Child Welfare System, Sue Badeau `, Sarah Gesiriech, Ann M. Haralambie, Amanda George Donnelly, Donald N. Duquette

Book Chapters

Once a child is known to the child welfare agency, the child and his or her family become subject to a series of decisions made by judges, caseworkers, legal representatives, and others, all of whom have an important role to play. A child may encounter dozens of other new adults, including foster parents, counselors, and doctors. Most children (60 percent) enter foster care when removed from their homes by a child protective agency because of abuse or neglect, or both. Others (17 percent) enter care because of the absence of their parents, resulting from illness, death, disability, or other problems. …

A Delicate Task: Balancing The Rights Of Children And Mothers In Parental Termination Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article considers the independent liberty interests of children in foster care and their mothers in parental termination proceedings. Federal reforms enacted in 1997 impose a mandatory deadline for the state to terminate parental rights. That policy erroneously presumes that the passage of time suffices to establish parental fault and satisfies a parent's due process rights to her child. The policy also fails to protect the minority of children in foster care who assert an interest in preserving a safe relationship with mothers who are unlikely to regain custody within the state's time frame - including many substance abusers, incarcerated …

Child Protection Law And Procedure, Frank E. Vandervort

Book Chapters

Child protective proceedings are governed by the Child Protection Law (CPL), MCL 722.621 et seq.; the Juvenile Code, MCL 712A.l et seq.; and Subchapter 3 .900 of the Michigan Court Rules. Taken together these sources of authority establish a comprehensive scheme for reporting cases of suspected abuse and neglect, investigating those reports, and responding with appropriate action.

A Child's Right To Protection From Transfer Trauma In A Contested Adoption Case, Suellyn Scarnecchia

Articles

On August 2, 1993, I arrived at the home of Jan, Robby, and Jessica DeBoer' a few hours before the transfer. At 2:00 P.M. I would carry Jessica out of her home and deliver her to the parents who had won the case,2 her biological mother and father. This task probably would have been easier had I not spent eight days in the trial court listening to the experts explain that this transfer from one set of parents to another would harm Jessica.3 It would have been easier had I not recently obtained affidavits from other experts to persuade the …

Imagining Children's Rights, Suellyn Scarnecchia

Articles

Today, I will tell you some stories about real, live children, whose futures have been determined by our legal system. To speak of children's rights hypothetically, raises images of children suing to go live with their rich uncle or suing to demand a Nintendo system from their parents. I hope that by bringing you stories of the legal system's treatment of real children, you will have a better understanding of what I mean by children's rights and why they must be recognized. Although children's rights have been recognized in limited ways in the areas of free speech, criminal law and …

Who Is Jessica's Mother? Defining Motherhood Through Reality, Suellyn Scarnecchia

Other Publications

The recent Baby Jessica case and others like it have renewed the nature versus nurture debate in family law. Baby Jessica's biological parents, the Schmidts, sought to obtain permanent custody of their daughter after giving her up for adoption to the DeBoer family. Their argument was one that found its basis in biology and the idea of a traditional family. On the other hand, with the assistance of Professor Scarnecchia, the DeBoers argued that it was more important forJessica's overall health to remain with her primary caretakers of two years. Courts, however, have taken a more traditional view of this …

Medical Dependency In Arizona, Mary E. Berkheiser

Scholarly Works

Analysis of In re Cochise County Juvenile Action No. 5666-J, 650 P.2d 459 (Ariz. 1982).