Parental Compliance: Its Role in Termination of Parental Rights Cases

• Jurisdiction: United States,Federal
• Citation: Vol. 80
• Publication year: 2021

80 Nebraska L. Rev. 335. Parental Compliance: Its Role in Termination of Parental Rights Cases

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Eve M. Brank,* Angela L. Williams,** Victoria Weisz,*** and Robert E. Ray****

Parental Compliance: Its Role in Termination of Parental Rights Cases

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 336 R
II. An Overview of Termination of Parental Rights . . . . . . . . 337 R
A. Recent Statutory Developments Related to
Termination of Parental Rights . . . . . . . . . . . . . . 337 R
B. Key Differences Between the Former and Current
Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 338 R
III. Background for the Current Empirical Research . . . . . . . . 339 R
IV. Specific Issues Examined in the Current Study . . . . . . . . 342 R
A. Court Plans . . . . . . . . . . . . . . . . . . . . . . . 342 R
B. Court Plan Compliance . . . . . . . . . . . . . . . . . . 343 R
C. Mental Illness and Mental Deficiency . . . . . . . . . . . 345 R
V. The Empirical Study . . . . . . . . . . . . . . . . . . . . . 346 R
A. Hypotheses . . . . . . . . . . . . . . . . . . . . . . . . 346 R
B. Method . . . . . . . . . . . . . . . . . . . . . . . . . . 347 R
C. Results . . . . . . . . . . . . . . . . . . . . . . . . . 348 R
VI. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . 350 R
VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 352 R

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I. INTRODUCTION

The United States Supreme Court has recognized the right of parenthood as a protected liberty.(fn1) In the landmark case of Skinner v. Oklahoma,(fn2) the Court held that procreation was one of the basic civil rights of man. The Court acknowledged this right by invalidating a statute that provided for the sterilization of habitual criminals. Parental choice to procreate was held to be such a fundamental right, the Court stated that laws pertaining to it are to be examined at the highest level of scrutiny.(fn3) Additionally, the right of a parent to maintain custody of his or her child is considered a natural right.(fn4) Parental rights, however, are not absolute. Laws against child maltreatment demonstrate this, as statutorily defined regulations permit states to interfere in the parent-child relationship in certain situations.(fn5) For instance, parents open the metaphorical door of the family home to the State when they abandon or seriously injure their children. Once a statutorily defined threshold is met, the court may permanently sever a parent's legal rights in an effort to serve what the court deems to be in the best interest of the child. Due to recent changes in the law in this area, these cases, called termination of parental rights (TPR) cases, have become an area of increased interest among courts, legislatures, and policy analysts, and will be the topic of this Article.

This Article examines the current state of termination of parental rights law, along with the results of an appellate case review, an exploratory project, and an empirical investigation of decision-making related to these cases. Section I begins with an overview of termination of parental rights law. The focus of this section will be recent statutory changes in the area, highlighting some key differences between the former and the current law. In Section II, the focus shifts to a review of the foundations for the empirical study that will be described later in the Article. Section III more specifically addresses the main areas that will be explored in the empirical study, including descriptions of case plans, parental compliance with case plans, and the mental status of parents. Section IV describes the empirical study,

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which addressed whether certain factors contribute to TPRs. Finally, sections V and VI discuss the conclusions that can be drawn from the empirical study.

II. AN OVERVIEW OF TERMINATION OF PARENTAL RIGHTS

In general, state statutes require that parents commit some flagrant violation before state prosecutors can seek a termination of parental rights.(fn6) These statutes generally require one of the following as a basis for a termination: abandonment, child abuse, severe neglect, non-support, or the inability to parent adequately because of a physical or mental deficiency.(fn7) In addition, the statutes usually require a finding that the problem is likely to continue for an indeterminate period. (fn8) The United States Supreme Court requires that the State prove the grounds for a termination by "clear and convincing evidence," a more stringent requirement than the "preponderance of the evidence" standard a plaintiff must prove in a typical civil case.(fn9)

A. Recent Statutory Developments Related to Termination of Parental Rights

In 1997, the United States Congress passed the Adoption and Safe Families Act (ASFA).(fn10) This Act changed the paramount objective from family reunification to the child's health and safety.(fn11) This federal legislation requires the State to file a petition (or join if another party moves to do so) to terminate parental rights when the child has been in an out-of-home placement for fifteen of the most recent twenty-two months. Additionally, the State is to file a petition if the parent has inflicted serious bodily injury upon the juvenile (other than accidental); if the parent has subjected the juvenile to aggravated circumstances including abandonment, torture, chronic abuse, or sexual abuse; or if the parent has murdered another one of his or her children. (fn12) These situations do not automatically result in a termination; however, they do require the State to initiate the TPR process.(fn13)

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However, there are some exceptions to this law. For example, ASFA does not require the State to file a petition for termination if the child has been in the care of a relative, if the state agency involved has documented that a termination would not be in the best interest of the child, or if the family has not had a reasonable opportunity to avail themselves of the necessary services.(fn14) In addition, the federal legislation provides that the availability of an adoptive home should not have any bearing on whether the State terminates parental rights.(fn15) The federal legislation also includes fiscal incentives for states that adopt ASFA.(fn16) As a result, many states have moved quickly and enacted similar state legislation.(fn17)

B. Key Differences Between the Former and Current Law in Nebraska

The implementation of ASFA resulted in many changes in Nebraska law.(fn18) One key difference is that under the current law the State must proceed to file a TPR on a more aggressive time schedule than it did in the past.(fn19) The former statute gave the court authority to terminate parental rights when it was in the "best interest of the child" and the child had been in out-of-home placement for eighteen or more consecutive months.(fn20) The former law also required local authorities to make "reasonable efforts" to preserve biological families before placing a child in foster care or freeing a foster child for adoption. (fn21) However, many researchers concluded that states had misinterpreted this requirement, which resulted in states making unreasonable efforts to keep children with unfit parents.(fn22) One study revealed that children were languishing in foster care and being harmed by the State's excessive efforts to keep families together.(fn23) In

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response, the new statutory provisions require the State to file (or join as a party if a petition has already been filed) a petition for a termination when a child has been in foster care for fifteen of the most recent twenty-two months.(fn24) Thus, not only did ASFA reduce the time frame for filing a TPR petition, it also created an affirmative duty for the State to file.

Even under the less stringent former statute, however, 3,508 Nebraskan children were in out-of-home care in 1998.(fn25) Of those, 1,656 (47.2%) had been in such care for eighteen or more consecutive months, and 1,278 (36.4%) had been in out-of-home care for at least twenty-four months.(fn26) Nationwide, the number of foster children rose 19% from 1990 to 1995 (from 403,242 foster children to 480,249) with 18% of the children having spent five or more years in foster care.(fn27) It is evident from these numbers that in order to be in compliance with ASFA, an enormous increase in the number of TPR petitions would need to take place. Because of the increased time demands placed on those involved with these cases, as well as the tremendous impact each one of these cases has on the life of a child, the area of focus for the current study is on the decision-making involved in the TPR process.

III. BACKGROUND FOR THE CURRENT EMPIRICAL RESEARCH

The current research initially began with a manual review of a decade of Nebraska's termination of parental rights appellate case law.(fn28) This review revealed that there were recurring factors used in support of upholding the trial courts' terminations, including parent/child bonding,(fn29) parental compliance with the court rehabilitation plan,(fn30) abandonment by the parents,(fn31) terminations of parental rights for

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other children,(fn32) the age of the child,(fn33) and the mental deficiency of the parent.(fn34)

Based on this case review, the current researchers developed an exploratory project that aimed to study attorney decision-making in TPR cases.(fn35) A list of thirty-three factors was developed from the factors that were frequently mentioned in the appellate case review, described above. These factors focused primarily on qualities of the parent or the child, ranging from the special needs of the child to the severity of maltreatment in the case. Next, a questionnaire was developed that asked prosecuting attorneys and attorney guardians ad litem (GALs) in Nebraska to select an actual case that...