A DELICATE TASK: BALANCING THE RIGHTS OF CHILDREN AND MOTHERS IN PARENTAL TERMINATION PROCEEDINGS

• Pages: 163-199
• Published date: 01 July 2004
• Date: 01 July 2004
• DOI: https://doi.org/10.1016/S1059-4337(04)33005-X
• Author: Catherine J Ross

A DELICATE TASK: BALANCING THE

RIGHTS OF CHILDREN AND MOTHERS

IN PARENTAL TERMINATION

PROCEEDINGS

Catherine J. Ross

ABSTRACT

This article considers the independent liberty interests of children in foster

care and their mothers in parental termination proceedings. Recent federal

reforms impose a mandatory deadline for the state to terminate parental

rights. That policy erroneously presumes that the passage of time alone

establishes parental fault and satisfies a parent’s due process rights. It also

fails to protect the minority of children who assert an interest in preserving a

safe relationship with mothers who are unlikely to meet the state’s schedule

– including many substance abusers and victims of domestic violence.

The conflicting interests that can arise among parents, children and the state are

particularly pronounced when the state seeks to terminate parental rights. The

resulting tensions have long been aggravated by the inability of the child welfare

system to find the proper balance between two competing imperatives. The first

requires the state to protect children who are the victims of serious abuse or neglect

and who, it is widely understood, may suffer repeated trauma, and even death, if

the state fails to intervene appropriately. The second imperative is to minimize the

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 33, 163–199

Copyright © 2004 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(04)33005-X

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164 CATHERINEJ. ROSS

psychologicalandsocialtraumathatchildrenoftensufferwhenthestateintervenes

to remove them from the families that have failed to meet their basic needs.

Once a child is placed in foster care, the inexorable progress of the case will

presumably lead to only one of two options: return to the family of origin or

termination of parental rights followed by permanent placement in another family.

Thus, from the time a child enters foster care the potential exists for the interests

of child and parent to diverge dramatically. The conflicting interests of child and

parent are often transparent from the day the case file is opened. In other instances,

however, where the state plans simultaneously for reunification or termination of

parental rights, the conflicting interests of child and parent are balanced against

their potential mutual interests as the case progresses.

No one disputes that the stakes in parental termination cases are high. Every

current member of the Supreme Court agrees that “[f]ew consequences of judicial

action are so grave as the severanceof natural family ties” (M.L.B.v.S.L.J., 1996,

p. 119). Although the cases before the Court have focused primarily on the legal

significance and emotional devastation of termination for parents, separation from

a parent is at least as grievous and traumatic for the children involved (Bowlby,

1969a, b;Goldstein et al., 1996). However, the interest that a child may have in

preserving a relationship with a neglectful parent has received short shrift in the

wake of recent federal reforms intended to ensure permanent placements for all

children within a short time after their entry into the foster care system.

Modern rights theory recognizes that minors may have legal claims independent

of their parents that extend beyond their need for nurturance as members of an

intimate association of family members. The Adoption and Safe Families Act

of 1997 (ASFA) states “explicitly for the first time in Federal law that a child’s

health and safety must be the paramount consideration when any decision is made

regarding a child in the Nation’s child welfare system.” (Strengthening Abuse and

Neglect Courts Act of 2000) In doing so, ASFA places the potential conflicts of

interest between children and their parents (in most instances their mothers) in

stark relief. ASFA makes permanency “in a safe and stable home, whether it be

returning home, adoption, legal guardianship, or another permanent placement”

the goal for all of the children who enter foster care (Executive Memorandum,

1996). In keeping with its laudatory goal of moving children quickly out of the

childwelfaresystemto some form of stability,ASFAimposed an innovativefederal

time line, intended to insure that no child lingered in foster care for a period of

years. By making the child’ssafety and development the priority, ASFAweighs the

child’s security more heavily than the mother’s emotional needs and legal rights.

Looking at ASFA from the perspectiveof children’s rights, it is hard to see any

drawbacks to ASFA’s categorical approach as applied to the bright line cases. Like

ASFA,this paper is not concerned with the life circumstances that may have led the

“abusive” mother to her predicament or her actions. (In using the term “abusive,”

A Delicate Task 165

I refer to the abusers whose label raises no questions – those who torture, drown, or

fail evento note that a child has disappeared.) This article is instead concerned with

those cases that lie outside bright-line labels and examines a paradox at the heart

of recent efforts to improve the child welfare system: in their zeal to focus on the

child in parental termination hearings, lawmakers imposed a categorical formula

that unwittingly harms some children and mothers who are labeled “unfit” because

of neglect.

In the cases at the margins, those involving mothers who may or may not be

neglectful, or who are victims in their own right, ASFA’s categorical treatment of

mothers and children may not serve all children equally well. Unfortunately, the

marginal cases are not rare (American Bar Association, 1993). In this paper, I aim

to highlight a dilemma central to the child welfare system: it may not be possible

to devise a legal principle that equitably addresses the interests of all neglected

children and their mothers. Attempts to impose such a categorical legal principle to

neglect cases may result in less than optimal solutions for some individual children

and mothers, and even instances of flagrant injustice to one or both. On the other

hand, it is incumbent upon the law,and on its theorists as well as its practitioners, to

grapple with the hardest issues. Perhaps no issue is more difficult than the impact

of the passage of time on the respective claims of a parent, a child and the state in

the child welfare system.

Section 1 of this essay reviews the separate rights claims of parents and children.

Section 2 analyzes the key reform of ASFA,which provides that parental rights be

terminated after a child has remained in foster care for 15 out of the preceding 22

months. In doing so, I consider the conflicting interests of the child, the mother and

the state, asking whether the passage of time alone is ever sufficient justification

for terminating parental rights in light of the protections the law affords parents.

Section 3 draws on feminist theory in considering the vital liberty interests and

practical needs of mothers and children in two categories of hard cases: (1) cases

involving substance abusing mothers; and (2) cases involving battered mothers

whose children were removed despite the mother’s success in protecting the child

from observing or experiencing violence. Both of these categories illustrate that,

in some instances, children’s interests might be better served by flexibility where

the child asserts a claim to a continued relationship with a biological parent.

1. RIGHTS PERSPECTIVES: PARENTAL LIBERTY

INTERESTS, DUE PROCESS RIGHTS AND THE

RIGHTS OF THE CHILD

The vast majority of children live with their mothers, whether in single parent

households, with their father as well as their mother, or with their mother and her