Courts terminate the rights of parents far too often, causing needless trauma for families, according to a new paper co-authored by Michigan Law Professor Vivek Sankaran, ’01.
“Termination of parental rights really is the legal destruction of a family. A parent's ability to see their child and a child's ability to see their parent, as well as siblings and relatives, are all terminated. They become strangers to one another,” Sankaran said in a recent interview.
The child protection system in the United States enacts termination of parental rights (TPR) more than 50,000 times each year. This happens even when parents pose no danger to the child and when the child has a beneficial relationship with other relatives, Sankaran said.
In “The Ties that Bind Us: An Empirical, Clinical, and Constitutional Argument Against Terminating Parental Rights,” recently published in Family Court Review, Sankaran and co-author Christopher Church of the University of South Carolina School of Law aim to bring new attention to the issue. They hope that lawyers will start resisting TPR efforts more aggressively and that state appellate courts will start considering constitutional problems with the practice.
Sankaran, a clinical professor of law who directs Michigan Law’s Child Advocacy Law Clinic and its Child Welfare Appellate Clinic, recently answered a few questions about TPR issues:
1. Your new paper describes a “wild West of practices and policies” that leads to termination of parental rights happening more often and more easily than one might expect. How did we get to that point?
People often don't realize that most kids enter the foster care system not because of serious abuse by the parents, but for reasons of poverty, often interspersed with issues of substance abuse. The hard cases are the ones where the families have been ravaged by intergenerational trauma, with parents who had horrific trauma in their own childhoods and then grew up and had kids without having overcome their trauma. So they're struggling.
What do you do in these situations? Typically the system gives the parent a fixed amount of time to address whatever issues they need to, with relatively inadequate mental health and substance abuse services. A lot of times parents aren't able to overcome their challenges, but they still have loving, meaningful relationships with their kids. Our system's traditional response is to sever and replace the relationship, as if that's the right answer for these families. I'm trying to argue that it's the relationships that matter, not the legal dispositions.
2. What are some of the outcomes from the over-application of TPR, both for families and our broader society?
Children suffer ambiguous loss. This is unlike death, where there's a lot of grief involved, but there's a more defined process as to how to move through it and move beyond it. TPR is in some ways even more challenging for kids, because they know their parents are out there. That sort of emotional loss is hard to quantify. For parents there's also a lot of grief—disenfranchised grief, which is when they feel like the worst thing has happened to them, but they don't know how or who to talk to about it. I have a client right now whose kids are in foster care. Some of them are living with her grandmother and some with her aunt. And her aunt and her grandmother are also the very people who give her emotional support. Yet she's not allowed to go spend time with them because of some of the rules imposed by the foster care system.
For society as a whole, TPR is expensive and time consuming. The foster care system often complains of scarce funds, and TPR keeps kids in care longer because of the legal process. We have lengthy trials and then appeals. For a system that professes to want to get kids into stable homes quickly, this undercuts those efforts.
3. The paper notes that these issues hit children of color particularly hard. What are the reasons for that?
You see this at every point within our child protective system: issues of Black and Brown and Native children being treated poorly. It's complicated. On one level, when we as a society have not addressed problems in all other aspects, we often get these families at our doorstep and they have to deal with an emergency. Centuries of discrimination in the criminal justice system, housing, and public benefits play a role. We have a lot of discretionary standards in our system that allow us to double down on our own biases. We would be silly to think that all of the implicit biases that we know infiltrate other areas of decision-making somehow don't come into our systems here.
As a result of all this, whom the system targets, who's removed, who gets sent home, and whose rights are terminated, a lot of those factors just pile on. In some jurisdictions, the rates of disproportionality around TPR are just horrifying.
4. One challenge in addressing these issues is the differences among the states. How does that affect your ability to fight this battle?
We have a state-driven foster care system. The challenge is we're dealing with fundamental constitutional rights. We're trying to establish a baseline standard of the types of questions states must ask before they terminate parental rights. We'll never get to perfect parity in terms of how states conduct these cases, but we can get to a point where at least the frameworks we're applying are similar. Right now we're not close to that.
States like Texas, Florida, and West Virginia—and Michigan's also toward the higher end—terminate very quickly. They don't care if a kid's living with a relative or even with another parent. There's such variety across the country. Certain states will never terminate if a kid's living with a parent or relative.
5. What is the key constitutional issue that your paper raises?
The Constitution is clear that parents have a fundamental interest to care for their child. The frame that a court typically uses to evaluate when the government can take away a fundamental right is “strict scrutiny,” which means that the government needs to show that there's a compelling state interest and that the means that they're taking is narrowly tailored to meet that interest. In other words, there's no less intrusive way of doing it. Our argument in this paper is that although there's certainly a government interest in keeping kids safe and stable, the system pivots to the most extreme option—TPR—as opposed to requiring courts to look at other, less intrusive options.
A recently graduated Michigan Law student, Sarah Bender, took some of the research in the paper and wrote a memo that we distributed to trial lawyers across the state so they can start raising these arguments. We'll use many of the arguments in our cases in the Child Welfare Appellate Clinic, where we represent parents whose rights have been terminated. Then we'll also do training and podcasts and the like to get the word out, with the hope that more lawyers will raise this issue. We're slowly building our way to creating better case law.