Commentary by Brian Shilhavy
Editor, Health Impact News

Attorney Vivek Sankaran, director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School, has written an excellent piece that was published in The Chronicle for Social Change titled: Termination of Parental Rights: What’s The Rush?

Vivek writes that family courts today are too quick to remove parental rights when one parent is deemed “unfit.” An attorney himself who has represented children in foster care, Vivek gives an example of a father who was incarcerated for drug usage, and yet stayed involved in his daughter’s life for the 8 years he spent in prison, and even helped fund her time in law school, where she was able to finish her degree and graduate.

He was able to stay involved in his daughter’s life because his parental rights were not severed, which is what happens in most states, sadly, when a parent is deemed “unfit” to parent.

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.

Vivek writes that in one state, Utah, the Court of Appeals has questioned the necessity of terminating parental rights so quickly, and that this ruling could serve as a model for other states:

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.”

Vivek goes on to write that the Utah Court ruling could provide guidance for other states:

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?

Read the full article at The Chronicle for Social Change.