Tighten standards for termination of parental rights - response to Viewpoint article - Special Report: Protecting Children's Rights

Children Today, May-June, 1989 by Robert Horowitz

Tighten Standards for Termination of Parental Rights

Karen Dorros and Patricia Dorsey's criticism of the legal system, at heart, is that it makes it difficult to terminate parental rights. This view is a common one, and their example is compelling. While I do not disagree with the general statement, I part company with some of the implications and suggestions of this piece.

The authors state that the "legal system"--read judges--favors parental rights over those of children, as evidenced by its requiring social service agencies to attempt to remediate family problems, and its tendency to give parents second, third and even more chances. This, they suggests, allows neglectful parents to both maintain custody until the child is seriously injured, or defeat abandonment claims by infrequent, even once every six months visits with their child in foster care. This assertion, however, confuses basic legal and child welfare principles with individual case handling.

To illustrate, the courts do expect attempts at family rehabilitation. Yet this is not an individual judicial quirk, but a requirement of law. Under Public Law 96-272, the requirements of "reasonable efforts," "preventive services," "case plans" and the like have been widely adopted and accepted. This does not mean, however, that termination is foreclosed. Indeed, an equal thrust of the Act is to review cases periodically and move towards termination quickly when rehabilitation is not possible. Thus the real question becomes one of proof: When is rehabilitation no longer feasible? Here is where individual judges are, perhaps, reluctant to terminate and slow to recognize the seriousness of the emotional harms being done to neglected and abused children.

Or, perhaps, others in the child welfare system are not properly presenting information to the court upon which a termination can legally be based. The example given by the authors involved, at its earliest stages, an infant living in a welfare motel. While this is certainly not an ideal environment, I am assuming that they are not suggesting that welfare--that is, poverty status--is grounds for coercive state intervention. (In a recent report of the American Public Welfare Association, American Bar Association and Investigation: Policy Guidelines for Decision Making, a diverse group of 38 child welfare professionals concurred that child protection agencies "have not been established as society's response to poverty," although they are often improperly forced to assume this role.)

In the authors' example, the ground for state intervention seems to have been the mother's mental retardation, which caused poor parenting skills. What the authors don't share is the evidence presented at trial. Remember, the bench, while very powerful in some respects, is weak in others. Its biggest weakness is its total dependence on others to present the facts of the case. Paraphrasing an old saying, the judicial opinion (output) is only as good as the quality of the evidence (input). Did the agency present to the court information on the mother's mental capacity and its relationship to parenting--the prognosis--and whether this condition could be alleviated--the diagnosis? Without both aspects, termination is unlikely.

I am not, however, trying to redirect any fault from the bench. Even after being presented with compelling evidence by the state, many judges are too slow to terminate. The harms to the child are those stated by the authors. Their solutions and my responses are that:

* parents of abused and neglected children be given specific guidelines to follow. I agree, and this is the case plan requirement of P.L. 96-272. However, we first must address whether the caseworkers are writing "good plans" which identify the conditions or problems that contributed to the child's placement, select reasonable and achievable goals that address these conditions, and document who will do what and when.

* foster caretakers and therapists be more involved in the decision-making process. While the judge will not relinquish her responsibility to decide, these persons are critical to the "input."

* cases that have been around several years should be finally resolved by the courts. No dispute. Certainly this is the intention, if not the reality, of P.L. 96-272.

* the burden of proof be shifted to the parents to prove they are fit, rather than the state prove they are unfit.

This last recommendation is the most controversial. It would require altering a constitutionally recognized principle, established by the U.S. Supreme Court in Santosky v. Kramer (1982), that the state prove grounds for termination of parental rights by clear and convincing evidence. It is therefore unlikely to pass, but does underscore some of the criticisms of Santosky. At issue in Santosky was who should be protected from the risk of an erroneous decision being made at termination. Siding with the parents, the Court chose to make it more difficult for the state to prove termination, presumably, therefore, making it more difficult to terminate in inappropriate cases. The criticism, and one that partially validates the authors' basic criticism--that is, that we overprotect parents at the expense of the child--is that the Supreme Court framed termination as a contest between the parents and state, and was thus willing to err in the parents' favor. The child, unfortunately, was not considered, nor the consequences to the child when termination does not occur. One might ask whether the recent decision in DeShaney v. Winnebago County Department of Social Services, in which the Supreme Court opined that the child protection system owed no constitutional duty to protect abused children from further abuse at their parents' hands, is another example of the Court's failing to protect children.