Published date01 July 2004
Date01 July 2004
AuthorCatherine J Ross
Catherine J. Ross
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
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.
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

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