Groups across the ideological spectrum are backing parents who claim the family courts fail to consider less-punitive alternatives to being legally severed from their children’s lives.
Thousands of Americans lose parental rights in the civil foster care courts each year due to abuse, neglect or abandonment — an outcome considered to be the family law equivalent of the death penalty.
But on Wednesday, a pair of Michigan parents whose kids are safely housed with relatives will appear before the state’s Supreme Court, challenging how termination of parental rights decisions are made. They claim that revoking their rights is too extreme a measure, given that they’ve maintained strong, supportive bonds through supervised visits. Terminating their rights, the parents argue, violates the constitution and does not serve children’s “best interests.”
“Too often, what we’re doing in these cases is narrowly defining parental rights as the ability to physically care for a child. But companionship is also enshrined in our values and constitution — even if the kid is not physically with a parent,” said Vivek Sankaran, a clinical professor at the University of Michigan’s law school who is representing the parents in the supreme court case. “When is a relationship really so harmful that severing it completely is the only remedy that can protect the child?”
Court briefs in two similar cases the court will hear together — In Re Bates and In Re D.N. Dailey — have attracted an unusual array of supporters backing the plaintiffs’ arguments. They include family law attorneys, civil rights organizations and conservative groups that say the cases could set an important precedent on one of the most “fundamental liberty interests” under the U.S. Constitution: the right of parents to remain in contact with their kids.
Lawyers for Michigan’s Department of Health and Human Services (DHHS) defend the lower courts’ 2022 decisions to terminate the plaintiffs’ parental rights. In filings, state’s attorneys argue that before asking a judge to terminate a parent’s rights, the agency weighs alternatives, and they have been ruled out. In the pending cases, state the court documents, the parents had yet to fully escape drug and alcohol addictions that endangered their children.
The agency also defends the rights of the children’s relatives to be free of future legal challenges by parents. Kin caregivers should not be faced with the “the burden of constant vigilance and active protection against an unfit and/or dangerous parent,” one brief states. “For the best-interest analysis, DHHS and the courts must begin with the child and the child’s welfare, not from a presumption that is rooted in protecting the liberty of the parent.”
The father and grandmother who have full custody of the children in the two families are not party to the current cases, and it’s unclear from court documents which side they support.
The state agency did not respond to a request for further comment.
Revising common practice
The termination of parental rights became more common after the foster care population grew exponentially in the 1980s. Subsequent reform laws set tighter deadlines for parents to comply with court mandates or face the permanent loss of the right to care for their children — a precursor to adoption.
A 2020 research paper published in the peer-reviewed journal Child Maltreatment found that termination of parental rights “is far more common than often thought.” The authors estimated that as of 2016, 1 in 100 children in this country would experience a parental rights termination before they turned 18, with higher rates for Black and Native American children. According to federal data, in 2021 there were roughly 65,000 children in foster care nationwide who had experienced a termination of their parent’s rights, but had yet to be adopted.
Yet for years, legal challenges to the termination of parental rights have not fared well in the appeals courts. A 2013 memo written to judges by Michigan court administrators reviewed hundreds of initial appeals, and noted that less than 15% were successful each year.
Against that backdrop, oral arguments are scheduled for this week before the state’s Supreme Court in the separate cases In Re Bates and In Re D.N. Dailey. The arguments are so similar they have been combined for this week’s hearing in Lansing.
“In a time of deep division in our country on many constitutional questions, there is strong consensus on one point: family integrity is a fundamental right that commands the strongest constitutional protection.”
-amicus brief filed by the center for constitutional rights and the americans for prosperity foundation.
The parents in both cases have admitted to serious drug or alcohol addictions that have hindered their ability to parent. Their children are identified by their initials only to protect their privacy.
Both parents lost their rights in trial courts, and both of those rulings were upheld on appeal: In the Dailey case, the child experienced exposure to his mother’s opioid use while in utero, and then his father’s lack of progress escaping fentanyl’s tight grip. In 2019, after previous CPS investigations related to her heavy alcohol use, Bates’ diabetic child nearly died when she failed to make sure he received insulin shots. The incident landed her in prison for child abuse for five months.
Since then, Catherine Bates’ two children have lived safely and stably with their father, who has full custody. She has worked as a medical technician at an assisted living facility, visiting the kids only under supervision.
For years, Eric Dailey has visited his child every day at his grandmother’s house, without incident. The former railcar driver testified that his drug addiction began after he was prescribed Percocet after falling off a train at work.
The parents in both cases are housed and attending therapy, and caseworkers have described strong bonds with their children, despite their repeated setbacks in overcoming addiction.
Neither of the parents are asking the court to return their children to their homes. Instead, they want lower court rulings on terminations of parental rights overturned and reconsidered. The judges treated their situations “as a binary — full rights or no rights,” they state in court documents, thereby failing to follow the state’s juvenile code, which calls for serious consideration of retaining parental rights for children placed with relatives. Such arrangements allow the children “stability while also preserving their close bond” and “loving relationship” with parents.
In the Bates case, there had been split decisions by the Court of Appeals, with the justices in favor of termination noting the mother’s “consistent lack of progress and failure to take responsibility for her actions.”
Rare partnerships
Some of the nation’s most prominent civil rights and political advocacy groups have submitted friend-of-court briefs in the two cases, underscoring the broader constitutional stakes and the centrality of the family unit in American law and society.
Briefs are cosigned by lawyers across the political divide, in a fashion rarely seen in child welfare cases. They include the Center for Constitutional Rights, best known for representing detained men at Guantanamo Bay and the Americans for Prosperity Foundation, part of the conservative political network built by the billionaire brothers Charles and David Koch. Michael Farris — a pioneer of the Christian homeschooling movement who in recent years has “reached the pinnacle of the conservative legal establishment,” according to The Washington Post — also cosigned one brief.
“In a time of deep division in our country on many constitutional questions, there is strong consensus on one point: family integrity is a fundamental right that commands the strongest constitutional protection,” reads the filing by the Center for Constitutional Rights and the Americans for Prosperity Foundation.
Co-written by New York University law professor Christine Gottlieb, the brief describes the cases as “an important opportunity” to underscore constitutional principles and “to guide trial courts entrusted with the profound decision of when the state can end family ties.” It also cites decades of U.S. Supreme Court cases — from Meyer v. Nebraska in 1923 to the Troxel v. Granville decision of 2000 — which leave “no doubt that the right to family integrity is ‘fundamental’ within the meaning of the Fourteenth Amendment.”
Lawyers for children in foster care urge the justices to recognize the profound shift in priorities within the child welfare field overall: One brief, cosigned by the Juvenile Law Center, the National Center for Youth Law and Children’s Rights argues “termination of parental rights inflicts significant emotional and psychological harm on children,” particularly those who are Black, Indigenous and Latino. They also note that the federal government now offers financial incentives to states that promote kin-first policies.
The National Association of Counsel for Children stated that children are best served when family ties are maintained, however possible, and argued the lower courts’ decisions “rested on a misperception that adoption offers greater ‘permanency, stability, and finality’ to a child.”
