Termination of Parental Rights

In Kentucky, an "explosion" in the number of children removed from their homes by court order has resulted in more children in need of care-yet the number of people willing to step forward as foster parents has failed to keep pace. "And its going to get worse," says Rudi Megowan, Northern Kentucky family services supervisor for the state Department for Social Services. "They just passed legislation that will make it easier to terminate parental rights, which means more and more kids will be coming into care" (Vance, 1998).

This legislation, sweeping the states as of this writing, is the Adoption and Safe Families Act. It was the disparity between the number of children in foster care who need homes and the number who were adopted that spurred President Clinton in 1996 to ask for new legislation aimed at doubling the number of public adoptions by 2002 and giving foster children "what should be their fundamental right-a chance at a decent, safe home." In response, Congress passed the Act in November of 1997 (Spake, 1998).

Before children may be adopted, their ties to their natural parents must first be permanently severed. Permanent termination of parental rights has been described as "the family law equivalent of the death penalty in a criminal case" (In re Smith). The power to terminate parental rights is an "awesome power" (Champagne v. Welfare). "It is tantamount to a civil death penalty" (Drury v. Lang).

In Michigan, terminations of parental rights increased by 55% in 1996 when referenced against the previous year (Kresnak, 1996). This was before the Adoption and Safe Families Act was even on the drawing board. From Wisconsin: "Petitions to terminate parental rights are on the rise in Waukesha County, fueled by changes in state law that cut the time parents have to shape up." Over the past four years, the number of petitions filed by the county had increased sevenfold (Sink, 1998).

It apparently has become a cruel fashion of our times to systematically target primarily poor families for permanent severance of their family ties. To this end, the state of Arizona established a "Severance Project," while Kentucky has established a "Termination of Parental Rights Project." To implement the Kentucky initiative successfully, program officials believed that it was necessary to have the long-term and active involvement of "key officials at all levels, including the governor, legislators, and agency officials as well as caseworkers, service providers, attorneys, and judges." This participation was deemed "essential to define the problem and reach consensus," and accomplishing this end "required considerable coordination [of] efforts and an extended commitment of resources" (General Accounting Office, 1997).

Such a relentless onslaught against the family was bound to engender resistance. In Nevada, there is mounting anger and demand for change reportedly coming from parents whose rights have been terminated. They, too, say losing a child to protective custody is akin to a civil "death penalty" (Kanigher, 1997). Indeed, Chief Justice Charles Springer of the Nevada Supreme Court has observed that there is a "recent epidemic of terminations of parental rights of poor and handicapped parents" (Kanigher, 1997b). "As I have indicated in my dissents to other termination cases, the state seems to be running amok, spouting pop psychology and terminating parental rights in cases where it is clearly not necessary to do, particularly in cases of poor and otherwise handicapped parents," Springer wrote in another dissent, while in another still, he explained:

The state's modus operandi appears to be to go into the homes of handicapped, powerless and usually very poor parents, remove their children (almost always without the parents having counsel) and put the children into the home of substitute parents who are more affluent than the natural parents and more pleasing to social service agents than the natural parents.

After the children are taken out of the home of their natural parents, the state imposes upon the natural parents a "reunification plan" that is frequently beyond the capacity of the parents to deal with.

Springer has written of what he describes as the "state's child-devouring juggernaut" to take children away from their parents only because they are poor. When child-rearing problems arise, Springer notes the problem of poverty is "rarely addressed," rather the state seeks to assign blame to the parents thus "permanently depriving the children of their natural parents" (Ryan, 1998).

In a California case of recent vintage, a mother had her parental rights terminated on the basis of the testimony of a therapist who opined that she had a "narcissistic" personality. Her troubles began when social workers visited her home, removing the children because they found the home to be in generally "an unsanitary condition." Orange County Counsel Laurence H. Watson and Deputy County Counsel Mark R. Howe argued the case on behalf of the Department of Social Services (Orange County Social Services Agency v Doris F.). In yet another California case, parental rights were terminated on the basis of a psychologist's opinion that the parent had failed to "internalize" general parenting skills. Once again, Watson and Howe argued the case in the appellate court on behalf of the Department (Blanca P. v Superior Court). Dana Mack points to a case in which San Diego prosecutor E. Jane Via, whom she describes as a radical feminist, had sought to arrange for the adoption of an infant girl on grounds no more substantial than her Mormon father's "patriarchal" religious beliefs might someday inspire him toward abusive behavior.

Perhaps more typical of national trends is a North Carolina case in which the Court of Appeals upheld termination of parental rights based on Moore County District Court Judge Michael E. Beale having found "clear, cogent and convincing evidence" that neglect had occurred based on a friend of the defendant testifying to having "observed a roach on the child's face on one occasion," and having seen "roaches on the car seat, diaper bag, and dirty clothes." Dirty dishes were said to be accumulating, and dirty clothes were said to have been piled up around the apartment. This "evidence" of unfitness was not uncontroverted. A family therapist employed by the court to conduct a home study stated in his report that the house was neat and clean, and that the mother had "shown a good aesthetic sense in arranging flowers and art work to create a warm ambiance." He also testified about the mother's apparent willingness to become a better parent. The primary witness against the mother, Alvina Street, had legal custody of the child at the time she testified against the mother (In re Eric Young).

When in modern times it became fashionable for the courts of appeal to uphold the termination of parental rights for reasons of poverty is difficult to determine with precision. In Texas, however, the date was February of 1987, and the venue was the Court Of Appeals, Fifth District Of Texas. In his dissent in In the interest of S.H.A., a child, Justice Devany observed:

[W]hen we are faced with an economic depression and parents cannot provide adequate food for their children, under the majority holding, termination will be justified. The majority has enacted law that in a time of poverty parental rights will be terminated. The majority will have the state become a "big brother" form of government of such supremacy that it can destroy the very base of freedom and democracy in this country by destroying the family.

A more comprehensive review of appellate cases involving termination of parental rights is beyond the scope of this text. Suffice it to say that to the extent a very few children find themselves fortunate enough to wind their way out of the labyrinth of foster care toward the promise of permanence offered by adoption, a majority of these children appear to have had their rights to their parents terminated for largely the same reasons they entered foster care to begin with. In a majority of cases the reason is related to their poverty status. Among the majority of the remainder of these cases factors such as cultural bias or insensitivity, decision making and other skill deficits at all levels of administration, an all-pervasive anti-family bias, and corruption motivated either by financial gain or personal aggrandizement frequently manifest themselves. Allegations involving instances of life-threatening child abuse or neglect appear to be raised among the minority of TPR cases based on my personal review of something approaching some several hundred such cases.

And now, along comes the Adoption and Safe Families Act. Already the Department of Health and Human Services has issued a Program Announcement detailing how the legislation is to work once implemented on the state level. States are affirmatively required to proceed with the termination of parental rights when a child has been in foster care for 15 of the most recent 22 months. There are only three exceptions to the rule: 1) the child is placed with a relative (at the option of the State); 2) the State documents a compelling reason not to file a petition for TPR; 3) the State has not provided the services, identified in the case plan, necessary to make the home safe for the child's return within the time frame specified in the case plan. The Act is "to be treated as a Title IV-E State plan requirement" and failure to obtain the necessary State legislation required to implement these new procedures during the first legislative session following the enactment of the Act "will result in a State plan compliance issue" (Administration for Children, Youth and Families, 1998).

Former New Hampshire State Senator and Chairman of the Human Services Committee David Wheeler argues that the Adoption and Safe Families Act will allow juvenile court judges to proceed with terminations of parental rights based solely on a child's length of stay in foster care absent so much as an adjudication of abuse or neglect. The law comes with new funding streams, including incentives to maintain a child in state care until such time as termination of parental rights triggers financial incentives to child protection agencies. To my knowledge, his was the only state to reject the bill when it was first introduced in the House. A subsequent effort to attach it to another bill was discovered and derailed. The former Senator explains that as of this writing, efforts are still under way "to slip it under the door" (personal communication). While on its face, the legislation offers the promise of quicker exit from a system historically known for maintaining children in care for countless years of time, the Congress failed to ask one crucial question when it passed the legislation: Why are so many children in the foster care system to begin with?


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