Kendra Huard Fershee (West Virginia University - College of Law) has posted The Parent Trap: The Unconstitutional Practice of Severing Parental Rights Without Due Process of Law (Georgia State University Law Review, Vol. 30, No. 3, 2014) on SSRN. Here is the abstract:
In 1997, Congress passed the Adoption and Safe Families Act (ASFA) to stem what it perceived to be an overreliance by states on foster care to provide a safe place for children whose parents had been accused of abuse or neglect. Prior to ASFA, many children were placed in foster care for extended periods of time while their parents were evaluated for their fitness and rehabilitative efforts were made to reunify families. Congress considered the time children spent in foster care as damaging to them because it left them uncertain about where they would live in the future. Congress, in an attempt to reduce the amount of time children spend in foster care, included provisions in ASFA that require states to expedite termination of parental rights to such a speed that states have been engaging in, for many years, systematic deprivation of the parents’ procedural and substantive due process rights.
Child abuse and neglect have always been a problem in every society, but many cultures, including American culture, have a poor track record of successfully addressing the problem. Early American history shows a lack of appreciation or understanding of the problem, and the evolution of policies to combat child abuse and neglect has been slow and somewhat ineffectual. At the same time, courts have not had a spectacular record of effectively addressing the problem of child abuse and neglect. The Supreme Court was slow to consider problems related to families, and did not decide a case regarding the rights of parents to the care, control, and custody of their children until the late 1920s. And it was not until the 1980s that the Court finally declared that parents have a substantive due process right to the custody of their children.
Even though it took many years, the Supreme Court’s recent recognition of protections for the procedural and substantive due process rights of parents is clear: states must be extremely cautious when seeking to terminate parental rights. In fact, after ASFA, the opposite has been happening. States have every incentive to rush to judgment and sever parental rights, even when there is no evidence that the parent has ever abused the child who has been removed from his or her custody, and even when the parent is someone who could be a wonderful, loving, and caring parent. These due process violations occur in the context of the provisions of ASFA that make exceptions to the requirement that states make reasonable efforts to reunify families who have been separated after an allegation of abuse of neglect.
In the second most constitutionally problematic provision of ASFA, states are permitted to forego reasonable efforts to reunite parents with a child who has been removed from their custody (automatically upon birth, in many circumstances) when the parents have lost custody to a sibling of the child in the past. Then, in the most constitutionally problematic provision, states must rush to terminate parental rights of those parents, even with no evidence that they would be unfit to parent this child. Unfortunately, many state courts are applying these provisions with heavy hands, resulting in improper terminations, or near misses that are overturned upon appeal. Congress must change ASFA to change incentives to states so that they act in accordance with the constitution when terminating parental rights, and the Supreme Court should review cases where parents’ parental rights have been permanently severed based on evidence of past misconduct alone. Until then, parents are extremely vulnerable to state court judges who are guided by an unconstitutional statute and who may not appreciate the constitutional risks in applying it.