The late Justice Ruth Bader Ginsburg had many gifts, one of which was using language to convey the harsh impact of the law on those living on the margins. Consider her words in M.L.B. v. S.L.J, in which she authored a majority opinion requiring states to provide parents with free transcripts in termination of parental rights (TPR) appeals.
She described the severity of the sanction as making a parent “forevermore, a stranger to her child.” She outlined the Court’s approach as being “mindful of the gravity of the sanction imposed on [the mother].” And she noted that TPRs involved the “irretrievable destruction of the most fundamental family relationship.”
Her words powerfully captured that judges should exercise restraint before deciding to permanently and irrevocably sever relationships between parents and children. Her view aligns with a foundational constitutional view – that before the government strips any person of fundamental rights, it must demonstrate that its action is the least restrictive means to fulfill a compelling state interest. In other words, it must show that its actions are absolutely necessary and no other option exists.
I’ve been thinking a lot about Justice Ginsburg’s words over the past few weeks, as I’ve been reading through hundreds of pages of transcripts in TPR appeals. This is an annual ritual for me around this time of year as part of my work in the Child Welfare Appellate Clinic at the University of Michigan Law School, in which my students represent parents on appeals of termination of parental rights decisions.
But one feeling I’ve never had after perusing these transcripts is a feeling of judicial restraint prior to courts exercising their awesome power to destroy parental rights.
Rather, courts seem to terminate parental rights out of a sense of convenience. A child has been in foster care for 15 months, so let’s terminate. A foster parent prefers to adopt a child, so let’s terminate. A parent hasn’t fully complied with services, so let’s terminate. In one case, a judge actually said out loud that he’d prefer to terminate even though the child was living safely with his father because allowing the father to pursue custody would take more time and be inconvenient to the father.
But what is often missing is a careful examination on why termination is the best – and only – option for the child. Why terminate if a child still has a loving bond with his parent? Why terminate if a child is already living safely with a parent or a relative? Why terminate if the system has not identified another permanent home for the child?
Rather than confront these tough questions, courts sidestep them using buzz phrases like a child’s “need for permanency.” Having represented hundreds of children in my career, while some kids certainly want finality, many others still want to maintain relationships with their parents. Forever. Even if they can’t live with them.
Our child welfare system needs to have a reckoning over when we must terminate parental rights. We need to acknowledge that our use of TPRs – as a matter of convenience – has harmed children and their parents. We can no longer tolerate a practice that has resulted in children not being able to have relationships with loving parents, simply because their parents cannot care for them.
To realign our system, we must clearly define the values we are looking to advance when courts must terminate parental rights. While the Supreme Court has declared that the Constitution only permits a state to terminate parental rights upon a finding of unfitness, it didn’t define the word, instead leaving it up to states to determine when parental rights should be terminated.
States have wide discretion to define both the conduct that makes a parent unfit to have legal rights to their child, and the time that must be given to parents to remedy that unfitness. Unsurprisingly, states vary widely on how often, and how quickly they terminate parental rights. For example, in 2014, Maryland had a rate of 10.5 terminations for every 100,000 children. The rate in West Virginia, a neighboring state, was 283: that is nearly 2,700% higher.
Thus, a parent’s ability to retain their fundamental constitutional right hinges on what state they live, or even on what county they live within a state. When fundamental constitutional rights are at stake, these types of disparities should make us all uncomfortable.
Before courts “forevermore” make a parent “a stranger to her child,” shouldn’t we at least have a conversation about this? A real conversation. That doesn’t hide behind buzz phrases. That doesn’t rest on speculative assumptions, but instead examines the evidence of how TPRs actually impact children and their families. One that acknowledges the irrevocability of the action in question and calls for judicial restraint.
When such power is at stake, convenience can never be our guiding value.