It may seem counterintuitive, but children in foster care are more likely to achieve permanency if we take the legal rights of their parents seriously. When all state actors, from social workers to judges, consider parental rights before removing children from their families or terminating parental rights, subsequent adoptions are more likely to be insulated from ongoing litigation, or in the worst instance, revocation. I am a strong proponent of children’s rights. In the context of the child welfare system, however, respect for the rights of parents can protect children from unnecessary and frightening disruptions. The doctrine of parens patriae, which justifies state intervention into families to protect children from serious harm, allows the state to pierce the veil of family integrity. When there is a concrete basis for such intervention, the state should consider the child’s need for continuity and stability as it develops case plans. Children, like parents, have a stake in the integrity of their families, whether biological or adoptive. Moreover, risks to all children in the system would be diminished if we could move closer to realizing best practices: consistently applying legal standards, following best therapeutic practices, delivering well-targeted services, and reserving removals for the most egregious cases. This Article examines the legal doctrines with which child welfare workers should be familiar when they intervene in family life, especially when they take drastic measures such as removing children from their parents or filing a petition for termination of parental rights. I then argue that taking the legal rights of the parents seriously would have resulted in a more effective response to an incident that received a great deal of national attention in 2008 - the allegations of neglect and abuse of hundreds of children in a community of Fundamentalist Latter-Day Saints in Texas. Part I of this Article discusses the role of the foster care system in providing children available for adoption and introduces the concept of wrongful terminations of parental rights that results in adoptions being overturned by courts. Part II summarizes the constitutional doctrine of parents’ rights, its application to decisions to remove children from their homes and to terminate parental rights, and the silence of social science literature about the importance of parental liberty interests in children as part of the legal framework that governs the child welfare system. Part III discusses what child welfare workers need to know, but often do not, about the applicable law. Part IV examines how Texas officials responded to reports of child abuse at the Yearning for Zion Ranch outside Eldorado, Texas, as well as the judicial response to the state’s actions. Part V proposes a plan of action for the state that would have better respected the rights of the parents and the community while offering more effective protection to the children who needed it.
GW Paper Series
GWU Legal Studies Research Paper No. 470; GWU Law School Public Law Research Paper No. 470
Catherine J. Ross, Legal Constraints on Child-Saving: The Strange Case of the Fundamentalist Latter-Day Saints at Yearning for Zion Ranch, 37 Cap. U. L. Rev. 361 (2008).