A Survey: Children’s Rights Post Termination of Parental Rights and Pre‐Adoption

• Author: Theresa M. Pelfrey
• Date: 01 March 2020
• DOI: http://doi.org/10.1111/jfcj.12160
• Published date: 01 March 2020

A Survey: Children’s Rights Post Termination of

Parental Rights and Pre-Adoption

By Theresa M. Pelfrey

ABSTRACT

This survey of the statutory provisions and case law of all 50 states and the

District of Columbia includes the rights of children to parental support, inheritance,

and familial association remaining upon termination of parental rights. A majority

of states terminate all the child’s rights at the time parental rights are severed.

However, a number of states by explicit statutes or statutory construction have deter-

mined that a child’s rights to parental support survives termination of parental

rights. This survey examines the prevailing law in each state and suggests statutory

reforms to protect the legal status and rights of children.

Key words: parental obligations, parental duties, parental responsibility, termination of

parental rights, children’s rights, child support, inheritance, intestate succession, family

affiliation, familial contact, third party benefits, reinstatement of parental rights, “legal orphan”.

INTRODUCTION

The Court in Santosky v. Kramer (1982), emphasized that “Few forms of state action

are both so severe and so irreversible” as the termination of parental rights (p. 759).

Parents may voluntarily relinquish their parental rights, sometimes in a self-serving

effort to avoid the payment of child support. However, states initiate an involuntary

termination of parental rights to protect a child from abandonment, neglect, abuse, or

neglect. All states and the District of Columbia include statutes which provide for the

involuntary termination of parental rights, often more than one provision (U.S. Dept.

Health & Hum. Serv., 2016, p.1). This most drastic of all actions forever changes the

lives of the family, most particularly the lives of the innocent children (Pelfrey, 2013,

Theresa M. Pelfrey College of Liberal Arts and Social Sciences, Auburn University at Montgomery

(AUM), received her M.S.W. from the University of Alabama in 1993 and J.D. from the University of Ala-

bama in 2003. She has worked as a social worker and has practiced law. At AUM since 2009, she earned the

rank of Associate Professor effective 2014. Her diverse research interests span from children’s rights to the

elimination of police bias.

Juvenile and Family Court Journal 71, No. 1

©2020 National Council of Juvenile and Family Court Judges

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p. 13). These children are judicially rendered the children of no one (Anguis v. Superior

Court, 1967, p. 707). Guggenheim (1995) refers to children who remain in foster care

after the termination of parental rights without achieving adoption as “legal orphans.”

These legal orphans often lose inheritance rights, and have no right to reinstate parental

rights, even if a parent is rehabilitated before the child is adopted. The state as in parens

simply does not provide those rights a child loses in a termination action. Once adopted,

the new parent(s) undertake those obligations. Statutes seem to focus on some perceived

“unfairness” to parents who no longer have rights, rather than focusing on the rights of

innocent children—rights that inure to a child, regardless of a parent’s negligence or

wrongdoing. This study surveys states’ laws concerning these parent-derived rights, and

recommends statutory reforms to ensure such rights continue until children no longer

are legal orphans.

LITERATURE REVIEW

The Adoption Assistance and Child Welfare Act of 1980 required reasonable

efforts service plans to prevent child removal from the home, promote family preserva-

tion, and if the child is removed from the home, reunification services. Its predecessor,

the Adoption and Safe Family Act of 1997 (“ASFA”) emphasizes child safety while expe-

ditiously moving through foster care family reunification while simultaneously moving

toward termination of parental rights and the establishment of permanency for the child

through adoption. ASFA requires states to file termination of parental rights proceedings

when a child has been in foster care for 15 of the most recent 22 months; exceptions

include situations where a child is in the care of a relative, the case plan documents that

termination would not be in the child’s best interest, or if sufficient family services neces-

sary for the safe return on the child to the family have not been provided (ASFA, §103,

[a,3,E,i-iii]). The ASFA also provides for termination of parental rights immediately

under certain circumstances necessary to protect the safety of the child (§103, [a,3,E]).

Despite the ASFA push toward adoption permanency, the number of children who con-

tinue to languish in foster care has continued to steadily increase as reported in the Adop-

tion and Foster Care Analysis and Reporting System: United States, 2016 (Report No. 24,

2017) (“AFCARS”). The total number of children in foster care each year increased from

2012 to 2016, reaching 437,465 during fiscal year 2016. For the same period, the num-

ber of children entering foster care each year has also increased; a total of 273,539

children entered foster care in 2016. A total of 65,274 of these “legal orphan” children,

excluding children 16 and over, awaited adoption.

The majority of states, following the common law tradition which recognizes and

preserves the reciprocal nature of rights and obligations (Pelfrey, 2013, p. 13; Foss v.

Hartwell, 1897, p. 412; Cimini v. Cimini, 2008, p. 30; State v. Dyer, 1953, p. 720; Ex

parte M.D.C., 2009, p. 1134), automatically terminate parental obligations when paren-

tal rights are terminated, including child support (Pelfrey, p. 15; Aeda v. Aeda, 2013,

p. 13), as well as severing the rights that inure to children visa vis parents, including

inheritance rights. However, a minority of states have refused to relieve parents of their

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