The ties that bind us: An empirical, clinical, and constitutional argument against terminating parental rights

Abstract

This Article explores the unnecessary termination of a child’s relationship with their parent from an empirical, clinical, and constitutional lens. Part I explores administrative data related to TPR, which like many child protection metrics, resembles nothing short of a wild west of practices and policies relating to how often and how fast child protection systems terminate parental rights. These data also reveal how TPR can unnecessarily delay legal permanency for children, particularly those children who are living with extended family, and how a State pursuing TPR can drain its own scarce resources, a system perpetually decrying insufficient resources. Part II highlights the clinical research showing the need for children to have relationships with their birth parents, even with those who might be unable to care for them. This section also summarizes the research documenting the trauma experienced by parents who have their parental rights terminated, which might impact the parent’s ability to care for other children in the future. Part III discusses the unconstitutional features of the child protection system’s overutilization of TPR. Well-established principles of constitutional law require courts to search for less restrictive alternatives prior to infringing on individuals’ fundamental rights, like the right to direct the care of one’s child. Still, child protection systems stubbornly persist in terminating parental rights, a thinly veiled effort held out as a means to achieve legal permanency for children despite TPR being neither necessary nor sufficient to achieve legal permanency for children.Key points for the family court communityTerminating a child’s relationship with their parent can inflict significant harm on the entire family.States vary on how often and how quickly they terminate parental rights.Unnecessarily terminating a parent’s rights can needlessly delay legal permanency for children can drain scarce systemic resources.Terminating a parent’s rights, where other less intrusive alternatives exist, raises serious constitutional concerns.