Parents killing parents: creating a presumption of unfitness.

• Author: Wan, Lillian

1. INTRODUCTION

   Termination of parental rights is an extreme measure that is only used when a parent has been determined to be unfit to raise his or her own child. Termination proceedings are usually ordered only as a last resort and, in New York, there are no grounds for automatic termination of parental rights, no matter how egregious the circumstance.(1) This article addresses parental rights in the context of a situation where one parent has been convicted of murdering the other parent. It may be a surprise to some that a parent who has committed such a heinous crime still retains parental rights at all. However, this is a nation that carefully guards the due process rights of parents.(2) This Comment argues New York law should be amended to include murder of a child's parent by the other spouse as grounds for terminating parental rights.(3) Part II of this Comment provides an overview of parental rights termination and discusses New York law.(4) It also discusses recent federal legislation relating to termination of parental rights and the circumstances where a state will be required to initiate a termination proceeding.(5) Part III examines the statutes of various states that provide for parental murder as a ground for termination of parental rights.(6) Part III also discusses the parallel problem of domestic violence and how the states have handled domestic violence in custody cases.(7) Part IV discusses the judicial handling of the parental murder issue through various state court decisions.(8) Part V addresses recent legislative developments in New York and lays out a proposed statutory change for New York.(9) Furthermore, in Part VI, this Comment discusses potential arguments against such an amendment.(10) Finally, this Comment encourages the New York legislature to adopt a rebuttable presumption of unfitness against the parent who commits parental murder.(11)

2. TRADITIONAL TERMINATION OF PARENTAL RIGHTS LAW

   1. Overview

      "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."(12) The Supreme Court of the United States has consistently held the right of parents to rear their children as they see fit is a liberty interest protected by the Fourteenth Amendment.(13) However, this right is not absolute; it is qualified by the rights of the child.(14) A child has a liberty interest to be free from physical and emotional harm, and the state has an interest to protect children and to promote their well being.(15) The Supreme Court has ruled the state's interest in protecting the child justifies an infringement on parental rights.(16) The most severe form of state intervention is through termination of parental rights. "Termination proceedings entail the unmitigated cessation of all natural and legal rights a parent has with a child, and a permanent parting of all bonds linking parent to child."(17) A parent may voluntarily relinquish parental rights,(18) but more frequently, a parent is faced with an involuntary termination proceeding where his or her rights are terminated without consent.(19) Parental rights are also terminated in adoption proceedings, where a mother has consented to an adoption and a putative father is attempting to prove his paternity and block the adoption.(20)

      The Supreme Court has ruled the "mere existence of a biological link" is not enough to give an unmarried father protection under the Due Process Clause; if he has not demonstrated commitment to parental responsibilities, his rights will be terminated.(21) The termination of the parent-child relationship means the parent is denied both physical and legal custody.(22) The parent loses the right to visit the child as well as all rights to make decisions about the child's upbringing.(23) Most importantly, termination means the child will be set free for future adoption and the parent's consent will not be necessary.(24)

   2. New York Termination of Parental Rights Law

      In New York, prior to the 1999 amendments to the Social Services Law and Family Court Act, an agency could file a petition for termination of parental rights on the following five grounds: (1) "[b]oth parents of the child are dead, and no guardian of the person of such child has been lawfully appointed;"(25) (2) the parent has abandoned the child for at least six months immediately prior to the filing of the termination petition;(26) (3) the parent is "presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child" who has been in foster care for at least one year prior to the filing of the of the petition;(27) (4) the parent has permanently neglected the child;(28) and (5) the parent has severely or repeatedly abused a child who has been in foster care for at least a year prior to the filing of the petition.(29) Under the above statutory scheme, there are no situations in which a state agency can immediately initiate a proceeding for termination of parental rights.

      No crime a parent commits can result in immediate termination--not even murder.(30) The earliest an agency can initiate a termination proceeding is six months in the case of abandonment,(31) while in the case of abuse or neglect, a child who is in state care must wait an entire year before the agency is permitted to file a termination petition.(32) The fundamental liberty interest possessed by parents in the care and custody of their child "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State."(33) Therefore, the state has the burden of proving its allegations of parental unfitness with clear and convincing evidence before parental rights can be severed.(34) In New York, a decision to terminate parental rights involves a judicial determination of unfitness in a fact-finding hearing.(35) In Santosky v. Kramer,(36) a permanent neglect case, the Court struck down a New York statute which permitted termination of parental rights upon a "preponderance of the evidence."(37) This standard of proof was rejected as a violation of due process because the risk of erroneous deprivation from using a preponderance standard was great and the countervailing state interest was minimal in comparison.(38) Part of the rationale behind mandating a high standard of proof dealt with the disparity between the unlimited resources of the state to establish its case, and the lack of resources of the parents, who were "often poor, uneducated, or members of minority groups."(39) There was a concern that the termination proceedings would be "vulnerable to judgments based on cultural or class bias."(40)

      In the case of the incarcerated parent, the possibility of termination on the basis of abandonment and permanent neglect becomes more significant because of the forced parent-child separation.(41) In New York, a child is considered to be abandoned by her parent "if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency."(42) The agency has to prove with clear and convincing evidence that the parent has failed to contact the child within the six month statutory period; however, the agency is not required to exercise "diligent efforts" to preserve or encourage the parent-child relationship.(43) Furthermore, the mere intention not to abandon is insufficient to defeat a finding of abandonment.(44) Although incarceration may greatly inhibit a parent's communication and visitation with her child, and her ability to work with the agency, the incarceration does not excuse a parent from maintaining contact with her child.(45) Courts have consistently held a parent's single and isolated contact with the agency during the six-month period is not enough to interrupt the abandonment period.(46) In order to preclude termination of parental rights based on abandonment, the parent must show that a hardship permeated the parent's life rendering the parent unable to contact the child or the agency.(47) Incarceration does not qualify as such a hardship.(48)

      Unlike abandonment, in order to sustain a termination of parental rights on the grounds of permanent neglect,(49) an agency must demonstrate it made "diligent efforts to encourage and strengthen the parental relationship" as long as it is not detrimental to the best interests of the child.(50) This means before a parent's rights can be terminated and before parental fitness can even be examined, the agency must first show it has fulfilled its statutory duty of attempting to strengthen the parent-child relationship.(51) Diligent efforts demand that the agency: (1) assist in developing a plan for services to the child and her family;(52) (2) make visitation arrangements for the parent and the child;(53) (3) provide necessary services to parents so the child can be discharged from foster care;(54) and (4) keep the parent informed of the child's development.(55) In addition, when the parent is incarcerated, the agency has the duty to transport children to prison for visits with their parents and to provide the parent with rehabilitative services.(56) By placing this heavy burden on the state to prove its case for termination of parental rights, the New York statute functions favorably for incarcerated parents by according them procedural protections and by recognizing the possibility of parental rehabilitation.(57)

   3. Federal Legislation

      In addition to the state laws that govern the termination of parental rights, there are also important federal laws that need to be considered. In November of 1997, Congress passed the Adoption and Safe Families Act of 1997(58) in order to speed up the...