If a parent is unfit and cannot care for his child, we should automatically terminate his parental rights. Right?
Well, maybe not.
A few years back, one of my former clients – a child who had aged out of the foster care system – graduated from law school. I proudly watched her walk across the stage to receive her diploma. Sitting right next to me was her father, a man who had been incarcerated while his daughter struggled in foster care for eight years.
During those eight years, my client, separated from many of her siblings, bounced from one home to another. Yet over the years, she maintained a close connection with her father. After serving a lengthy prison sentence, he helped finance her college and law school educations. Now, he and I were sharing tears and hugs as we watched a truly miraculous moment.
In most jurisdictions across the country, this moment would never have occurred. Most courts would have terminated his parental rights years prior to her law school graduation. He was an unfit parent. He sold drugs. He could not personally care for her. His poor choices led him to his incarceration. And my client needed permanency. Thus, the only option would be to terminate his parental rights, right?
About a month ago, the Utah Court of Appeals wrestled with this question in a thoughtful, 32-page opinion. The court recognized that even where there was evidence that a parent was unfit, state statutes also required proof that termination of parental rights (TPR) was “strictly necessary.”
In interpreting this phrase, the court found that the legislature intended for courts to terminate rights “only in situations when it is absolutely essential to do so.” Thus, it required courts to explore whether “other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.”
For example, the court offered, in cases “in which grandparents or other family members have (or are willing to) come forward to care for the child, courts should consider whether other less-permanent arrangements (for instance, a guardianship with a family member) might serve the child’s needs just as well in the short term, while preserving the possibility for rehabilitation of the parent-child relationship in the longer term.”
The court also recognized that “in many cases, children will benefit from having more people – rather than fewer – in their lives who love them and care about them … [I]f there is a practical way to keep parents involved in the children’s lives that is not contrary to the children’s best interests, a court should seriously consider such an option.”
This last paragraph provides important guidance for how we can radically change our thinking about child welfare. Why not presume that it serves the best interests of children to preserve parental relationships that are meaningful to a child, even when a parent cannot care for the child?
Why not construct a statutory scheme – like the one that now exists in Utah – that forces the state to demonstrate why termination is “strictly necessary” or “absolutely essential” to further the child’s best interests? Why not allow children to be surrounded by all those who love and care for them, rather than permanently cutting off important relationships in the name of finality?
The ever-changing reality we call life is rarely final and permanent. Relationships change. Individuals mature. Bonds between family members endure, or don’t, regardless of what a court order says. So why not create a legal framework that reflects this reality? Why not prioritize and subsidize forms of permanency – like guardianship and custody – that allow children to preserve relationships with their parents while giving them a sense of permanency?
After the graduation ceremony, we broke bread at a local restaurant, celebrating, laughing and sharing stories. I witnessed a family sharing a special moment. On the plane ride home, I wondered how many times – as a children’s lawyer – I deprived my clients of this type of moment in my rush to support a TPR decision.
But maybe – with an assist from the Utah Court of Appeals – things will change. Maybe we will protect the interests of children by preserving important relationships. And that change will lead to a system, as described by the Court, that recognizes that “[t]he termination of parental rights is a drastic measure that should be resorted to only in extreme cases.”
Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.