Does A Parent's Right to Parenting Matter in Termination of Parental Rights? An Analysis of Court Cases

• DOI: http://doi.org/10.1111/fcre.12498
• Date: 01 October 2020
• Published date: 01 October 2020
• Author: Vered Ben‐David

DOES A PARENT’S RIGHT TO PARENTING MATTER

IN TERMINATION OF PARENTAL RIGHTS? AN ANALYSIS

OF COURT CASES

Vered Ben-David

The right to parenting refers to the biological parent’s right to make decisions about the care and wellbeing of the child and

is considered a fundamental constitutional right. But if the child faces imminent risk of harm, this right can be revoked. This

study examines the right to parenting in child maltreatment cases where parental rights were terminated and the way this right

was balanced against other rights and interests of the child and parents. Drawing on a sample of 212 court cases, the study

found that the right to parenting was discussed by the courts only in a quarter of the cases. It was also found that the right to

parenting was referenced more often in less severe cases than in more severe cases. This paper discusses legal marginaliza-

tion as reflective of the social marginalization of families involved in the child welfare system and the importance of a delib-

erate consideration of the right to parenting in every individual case from a legal as well as therapeutic perspective. It

suggests that when professionals neglect parental rights they may also fail to provide parents with a full chance to participate

in services that could help them improve their parenting skills and be reunified with their children.

Practitioner’sKey Points:

A parent’s constitutional right to parent one’s own child may be terminated by the court if the parent lacks parental

capacity to care for the child and there is no other solution to assure placement stability for the child.

Thestudy analyzed thelegal discourse pertainingto the rightto parenting in caseswhere parental rightswere terminated.

It was found that only a quarter (25%) of court cases of termination of parental rights (TPR) discussed the right to

parenting.

Courts were more likely to discuss the right to parenting in less severe cases (e.g., less child maltreatment reports,

more parental cooperation with the CPS, social support for the family).

When the right to parenting was considered, the legal discussion referred to other important rights and interests of

both the child and the parents, and was more balanced.

The study discusses ways in which the legal marginalization of the biological parents might reflect the social

marginalization.

The study discusses the option of an implicit acknowledgment of the importance of the parent-child relationship

through the provisions of services to the family and attempts to reunify the child with the family prior to TPR

proceedings.

When professionals neglect parental rights they may also neglect ways of helping parents actualize their parental

rights.

Acknowledging the right to parenting may benefit the treatment process prior to TPR proceedings by directing pro-

fessionals to the need to provide services to improve parental skills.

Judges and child protection workers should be more cognizant of the right to parenting, its meaning and conse-

quences, and should give it due consideration in every individual case.

Keywords: Right to parenting; parenting; termination of parental rights; child maltreatment; child protection; courts; legal

proceedings.

I. INTRODUCTION

A parent’s right to parent one’s own child is considered a fundamental constitutional right across

various Western legal systems (e.g., Cashmore, 2014; Choate & Engstrom, 2014; Wattenberg,

Kelley, & Kim, 2001). It means that a parent has the right to make decisions concerning the care,

Correspondence: vered_bd@hotmail.com

FAMILY COURT REVIEW, Vol. 58 No. 4, October 2020 1061–1071, doi: 10.1111/fcre.12498

© 2020 Association of Family and Conciliation Courts