The Parent Trap: the Unconstitutional Practice of Severing Parental Rights Without Due Process of Law

• Publication year: 2014

The Parent Trap: The Unconstitutional Practice of Severing Parental Rights Without Due Process of Law

Kendra Fershee

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THE PARENT TRAP: THE UNCONSTITUTIONAL PRACTICE OF SEVERING PARENTAL RIGHTS WITHOUT DUE PROCESS OF LAW

Kendra Huard Fershee^*

Abstract

In 1997, Congress passed the Adoption and Safe Families Act (ASFA) to stem what it perceived as an overreliance by states on foster care to provide a safe place for children whose parents had been accused of abuse or neglect. Prior to ASFA, many children were placed in foster care for extended periods of time while their parents were evaluated for fitness and rehabilitative efforts were made to reunify families. Congress considered the time children spent in foster care as damaging to them because it left them uncertain about where they would live in the future. Congress, in an attempt to reduce the amount of time children spend in foster care, included provisions in ASFA that require states to expedite termination of parental rights to such a speed that states have been engaging in, for many years, systematic deprivation of parents' procedural and substantive due process rights.

Child abuse and neglect have always been a problem in every society, but many cultures, including American culture, have a poor track record of successfully addressing the problem. Early American history shows a lack of appreciation or understanding of the problem, and the evolution of policies to combat child abuse and neglect has been slow and somewhat ineffectual. At the same time, courts have not had a spectacular record of effectively addressing the problem of child abuse and neglect. The Supreme Court was slow to consider problems related to families and did not decide a case regarding the rights of parents to the care, control, and custody of their children until the late 1920s. And it was not until the 1980s that the Court finally declared that parents have a substantive due process right to the custody of their

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children.

Even though it took many years, the Supreme Court's recent recognition of protections for the procedural and substantive due process rights of parents is clear: states must be extremely cautious when seeking to terminate parental rights. However, after ASFA, the opposite has been happening. States have every incentive to rush to judgment and sever parental rights, even when there is no evidence the parent ever abused the child being removed and even when the parent is someone who could be a wonderful, loving, and caring parent. These due process violations occur in the context of ASFA provisions that make exceptions to the requirement that states make reasonable efforts to reunify families separated after an allegation of abuse or neglect.

In the second most constitutionally problematic provision of ASFA, states may forego reasonable efforts to reunite parents with a removed child (automatically at birth, in many circumstances) when the parents have previously lost custody of a sibling. Then, in the most constitutionally problematic provision, states must rush to terminate the parental rights of those individuals, even with no evidence they would be unfit to parent the newborn child. Unfortunately, many state courts apply these provisions with heavy hands, resulting in improper terminations or near misses that are overturned upon appeal. Congress must change ASFA to incentivize states to act in accordance with the Constitution when terminating parental rights, and the Supreme Court should issue binding precedent to prohibit permanent severance of parental rights based on evidence of past misconduct alone. Until then, parents are extremely vulnerable to state court judges who are guided by an unconstitutional statute and who may not appreciate the constitutional risks in its application.

Table of Contents

Introduction.........................................................................642

I. The Evolving Doctrine of the Fundamental Right to Parent................................................................................644

A. Children as the Father's Chattel...............................644
B. Hyper-interference by the State Into Family Life......648

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1. The Beginnings of the "Child-Saving" Movement: The Mid- to Late-1800s........................................649
2. The Progressive Reform Period: 1890-1920.......652
3. The Fall and Resurrection of Child Abuse Issue Recognition: 1920-1960......................................654

C. Supreme Court Decisions About the Rights of Parents to Raise Their Children.............................................656

1. The Constitutional Right to Make Parenting Decisions..............................................................657
2. The Constitutional Right to Retain Custody.........667

II. Attempts by Congress and the States to Seek Permanence for Children Who Have Been Removed From Their Parents' Custody......................................672

A. The Purpose Behind the Adoption and Safe Families Act...............................................................................673
B. How ASFA Works......................................................674

1. Expedited Permanency Planning Under ASFA.... 676
2. Exception to Reasonable Efforts to Reunify a Family ................................................................... 677

III. Constitutional Flaws of State Laws Expediting Termination of Rights..................................................678

A. Expedited Process of Parental Rights Termination After a Prior Involuntary Termination................................679
B. Due Process Flaws With States' Implementation of ASFA...........................................................................682

1. Use of Past Behavior to Prove That Future Bad Behavior Will Occur.............................................685
2. Shifting the Burden of Proof to Parents...............694

C. Applying the Mathews Balancing Test and the Santosky Standard to Termination of Parental Rights in the States..........................................................................698

Conclusion............................................................................701

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Introduction

A baby is born every eight seconds in the United States.¹ At that moment, several constitutional rights are also born, including the constitutional rights of parents to the care, custody, and control of their child.² The constitutional right of parents to direct and control the upbringing of their child was one of the first substantive due process rights the Supreme Court recognized.³ Parental rights are among the most sacrosanct rights in American jurisprudence, require a high standard of proof before a state can interfere with them, and are carefully guarded by courts.⁴ Or are they?

of course, the constitutional right of parents to direct and control the upbringing of their child, like every constitutional right, is not absolute. It can be severed when a parent poses a substantial risk to the physical or emotional health or safety of the child.⁵ Over the last ninety years, since the Supreme Court first recognized the liberty interests of a parent,⁶ courts and legislatures have struggled to balance individuals'

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rights to parent and children's rights to be free from harm.⁷ The definition of harm has grown and evolved, as has the notion of what it means to have a liberty interest to parent.⁸ Placing the fulcrum in the precise location to perfectly balance the rights of children and their parents has proven nearly impossible, and in the last twenty years or so, states and Congress have made matters worse by striving for efficiency in the process of seeking permanence for children whose parents have been accused of being unfit to parent.⁹

In a well-intentioned effort to protect children from harm, Congress and many states have enacted one-size-fits-all laws that work to sever a parent's constitutional rights in an efficient, if nevertheless unconstitutional, manner. This happens in a couple ways. First, some states have devised plans that require removal of newborns from their parents' custody before they have even left the hospital and without any evidence of abuse or neglect, typically because their parental rights had been previously involuntarily terminated with respect to a sibling of the newborn. In those cases, under the federal statutory scheme, states can and indeed are encouraged to forego efforts to seek reunification. These procedural requirements, in all their efficiency, create a perfect storm for some parents, making it impossible for them to (1) prevent their children from being whisked away at birth and (2) retain their parental rights to those children once they are removed from their custody.¹⁰

There are serious constitutional concerns with state interference at both stages. First, some states, as a matter of course, remove newborns from the custody of parents whose parental rights to other children have been terminated in the past.¹¹ Next, the federal Adoption and Safe Families Act (ASFA) gives financial incentives to states enacting its

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dictates, which include a provision allowing state child welfare agencies to refuse to make reasonable efforts to reunite parents with children removed from their custody if their parental rights to another child have been involuntarily terminated.¹² Third, some state laws are so onerous that many parents, including those who would be good parents to the removed children, cannot meet the expectations and lose parental rights in a very short period of time.¹³ Legislation allowing the removal of newborns without evidence of abuse and requiring the expedited processes toward final termination of parental rights violates fundamental rights guaranteed by the Due Process Clause of the Fourteenth Amendment and must be amended to allow parents to retain their procedural and substantive due process rights to parent.

I. The...