Termination of Parental Rights in Washington

• Publication year: 1978

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 2, No.1FALL 1978

Termination of Parental Rights in Washington

Sandy D. McDade

Although parents have natural(fn1) and constitutional(fn2) rights to custody of their offspring, the state may intervene to protect abused or neglected children.(fn3) A common form of state intervention is a court order declaring the child "dependent."(fn4) Courts may order a dependent child removed from the home and placed in institutional or foster care,(fn5) but the parents' legal relationship with the child continues. If home conditions preclude the child's return, and the parents refuse to terminate their legal relationship, the child may remain in foster care until reaching majority.(fn6) Only court ordered termination of parental rights will allow the child to move into a permanent adoptive home.

Prior to 1978, Washington allowed trial judges broad discretion to decide, on a case by case basis, the necessity of terminating parental rights.(fn7) The recently adopted Juvenile Court Act in Cases Relating to Dependency of A Child and the Termination of a Parent and Child Relationship(fn8) represents a legislative attempt to nurture the family unit by severely limiting trial court discretion. The new law provides standards making judicial termination of parental rights difficult in all cases.(fn9) The Institute of Judicial Administration and the American Bar Association also have jointly proposed standards limiting trial court discretion in termination proceedings.(fn10) The ABA proposal, however, differs markedly from the Washington legislation. Attempting to limit the duration of foster care placements, the ABA would require the trial judge to order termination in many cases of extended foster care.(fn11) This comment contrasts the system of broad discretion under the previous Washington law with the two very different systems of limited discretion embodied in the Juvenile Court Act and the ABA proposal.

Although acknowledging the need for more research concerning the effects of foster care,(fn12) commentators generally agree that removal, even from a bad family environment, creates severe problems for the child.(fn13) Court ordered removal disrupts the parent-child relationship and may cause psychological damage more serious than the harm intervention is intended to prevent.(fn14) Long term foster care compounds these problems. Even if the child stays in one foster home, the uncertain nature of the placement,(fn15) and the possibility the child will view the placement as punishment, may create further emotional difficulty for the child.(fn16) Generally, however, the longer a child remains in foster care, the greater the chance of multiple foster placements.(fn17) Every new placement involves another separation experience and another adjustment into a new home environment, and tends to multiply the child's psychological difficulties.(fn18) Multiple placements may cause the child to feel rejected, and destroy continuity needed for stable emotional development.(fn19)

Statutory termination guidelines did not exist in Washington prior to the Juvenile Court Act.(fn20) Although the previous statute did not expressly mention termination, the Washington Supreme Court held that superior courts could terminate parental rights when the trial judge found dependency under the previous statute,(fn21) and found substantial evidence indicating termination would enhance the child's welfare. The court admitted that criteria establishing the child's best interest were "conspicuous by their absence" from case law,(fn22) but refused to enunciate standards because mandatory consideration of specified factors might prevent the careful individual treatment needed in complex termination cases.(fn23) The Washington Supreme Court, therefore, allowed trial courts broad discretion to weigh the interests of family and child on a case by case basis.

The supreme court provided few guidelines to aid trial courts in weighing these interests. Although defining the parents' interest as a "sacred right,"(fn24) the court stated that where the rights of parent and child conflicted, the child's interest must prevail.(fn25) By excluding consideration of such factors as the quality of education or living environment provided the child,(fn26) the court indicated that although trial courts could act to protect children, they could not rearrange families solely to place children with those perceived best able to rear them.(fn27) The supreme court sought, however, to allow the trial judge ample flexibility to reach a decision that recognized both the child's welfare and the parents' rights.(fn28) Furthermore, the supreme court placed very strong reliance on a trial court termination decision.(fn29)

Although prior Washington law granted trial judges broad discretion in deciding whether to terminate parental rights, proof requirements and procedural rules helped to safeguard the rights of natural parents.(fn30) After articulating several formulations of the proof required,(fn31) the Washington Supreme Court held that only substantial evidence-"clear, cogent, and convincing proof'(fn32) -would support a termination order. The supreme court also held that parents are entitled to notice of the issues in the hearing and to notice the hearing might result in termination.(fn33) The court also required the state to provide appointed counsel to indigent parents.(fn34) Unlike jurisdictions that admit hearsay evidence in termination proceedings to insure all relevant factors are presented to the court,(fn35) the Washington Supreme Court excluded the use of hearsay.(fn36) Excluding hearsay indicated the court viewed termination as a formal adversary proceeding(fn37) and insured parents the opportunity to cross-examine social workers and psychologists upon whom the state frequently relied to prove the necessity of a termination order.(fn38)

Broad judicial discretion allowed trial judges to choose the factors they would focus on when making termination decisions.(fn39) Such flexibility allowed a judge to make termination orders either difficult to obtain, thereby permitting extended foster placements, or easy to obtain, thereby promoting early termination and permanent child placement.(fn40) Critics attacked such broad discretion on two related grounds: (1) it allowed judges to decide cases primarily on personal bias toward maintenance of the natural family unit;(fn41) (2) it contributed to the system of long-term foster care(fn42) because judges were reluctant to order termination unless the state proved intentional parental fault.(fn43)

The American Bar Association's Juvenile Justice Standards Project proposed a termination system narrowing judicial discretion and limiting both the number and length of foster placements. The standards limit the number of initial foster placements by removing children from their natural home only when serious harm to the child is imminent,(fn44) thus avoiding the trauma of removal in all but the most extreme cases of potential harm to the child.(fn45) Once the court removes a child from the home, the Juvenile Justice Standards recommend that:in general, a child either should be returned home or freed for adoption or other permanent placement within a year of the time he/she enters foster care. The preferred disposition is to return a child to his/her natural parents . . . . However, in a number of cases, perhaps even the majority of cases, if children are removed only as a last resort, return will not be possible. In such cases termination of parental rights may be essential in order to provide a child with a permanent home.(fn46)

The ABA proposal seeks to end long term foster placements by facilitating early return to the parents if return is possible, and early termination if return is not possible. If return is impossible, the proposal requires termination after an established length of time unless the case falls within certain exceptions.(fn47) For children under three, the proposal requires termination if the court cannot return children to their natural home after a six month placement.(fn48) For children over three, the proposal requires termination after placement for a year.(fn49) In establishing this different treatment based on the age of the child, the proposal relies on research(fn50) indicating that extended foster placements are more damaging to children under three.(fn51)

Like the ABA proposal, the Juvenile Court Act removes children from their natural homes only in circumstances of extreme risk to the child.(fn52) The Washington Legislature relied, at least in part, on the Juvenile Justice Standards in authorizing removal only when children are seriously endangered.(fn53) Limiting state intervention in the home conforms with the legislative intent expressed in the Juvenile Court Act to preserve the natural family unit unless compelling evidence requires removal.(fn54)

The Juvenile Court Act limits intervention through provisions carefully restricting the state's ability to remove children from their homes. The Act forbids the state to hold a child longer than seventy-two hours in the absence of a court order for continued shelter care.(fn55) The parents have a right to a preliminary shelter care hearing, and the court must release the child at the hearing unless release would present a serious threat of substantial harm to the child.(fn56) Construed in light of the legislative intent...