Does A Parent's Right to Parenting Matter in Termination of Parental Rights? An Analysis of Court Cases. (14th September 2020)

• Record Type: Journal Article
• Authors: Ben‐David, Vered
• Is Part Of: Family court review. Volume 58:Number 4(2020:Oct.)
• Page Start: 1061
• Page End: 1071
• Publication Date: 2020-09-14
• Subjects: Right to parenting -- parenting -- termination of parental rights -- child maltreatment; child protection -- courts -- legal proceedings; Domestic relations courts -- United States -- Periodicals; 346.7301505
• DOI: 10.1111/fcre.12498
• Languages: English
• ISSNs: 1531-2445

Abstract

Abstract : The right to parenting refers to the biological parent's right to make decisions about the care and wellbeing of the child and is considered a fundamental constitutional right. But if the child faces imminent risk of harm, this right can be revoked. This study examines the right to parenting in child maltreatment cases where parental rights were terminated and the way this right was balanced against other rights and interests of the child and parents. Drawing on a sample of 212 court cases, the study found that the right to parenting was discussed by the courts only in a quarter of the cases. It was also found that the right to parenting was referenced more often in less severe cases than in more severe cases. This paper discusses legal marginalization as reflective of the social marginalization of families involved in the child welfare system and the importance of a deliberate consideration of the right to parenting in every individual case from a legal as well as therapeutic perspective. It suggests that when professionals neglect parental rights they may also fail to provide parents with a full chance to participate in services that could help them improve their parenting skills and be reunified with their children. Abstract : Practitioner's Key Points: A parent's constitutional right to parent one's own child may be terminated by the court if the parent lacks parental capacity to care for the child and there is no other solution to assure placement stability for the child. The study analyzed the legal discourse pertaining to the right to parenting in cases where parental rights were terminated. It was found that only a quarter (25%) of court cases of termination of parental rights (TPR) discussed the right to parenting. Courts were more likely to discuss the right to parenting in less severe cases (e.g., less child maltreatment reports, more parental cooperation with the CPS, social support for the family). When the right to parenting was considered, the legal discussion referred to other important rights and interests of both the child and the parents, and was more balanced. The study discusses ways in which the legal marginalization of the biological parents might reflect the social marginalization. The study discusses the option of an implicit acknowledgment of the importance of the parent‐child relationship through the provisions of services to the family and attempts to reunify the child with the family prior to TPR proceedings. When professionals neglect parental rights they may also neglect ways of helping parents actualize their parental rights. Acknowledging the right to parenting may benefit the treatment process prior to TPR proceedings by directing professionals to the need to provide services to improve parental skills. Judges and child protection workers should be more cognizant of the right to parenting, its meaning and consequences, and should give it due consideration in every individual case.