xxx The right to the care, custody, upbringing, education, and nurturing of one's child is a fundamental, (23) constitutional, (24) and essential (25) right. While a parent enjoys a presumption of parental prerogative, (26) parental rights are not absolute and must be balanced against the government's interest in protecting children. (27) The state retains the right to intervene, alter, and even sever familial relationships when it deems a child is at risk. (28)
The termination of parental rights is a severe action that divests a parent of all rights and privileges regarding the child, thereby severing the parent-child relationship. (29) Due to the final nature of a termination ruling, the Supreme Court has referred to it as an "awesome authority of the State." (30) Other courts have described termination as "the family law equivalent of the death penalty." (31)
In 2008 alone, 75,000 American children became judicially mandated orphans. (32) The state terminated the rights of their natural parents in court proceedings, and the children became wards of the state. (33) In some cases, termination was a necessary measure, rescuing the child from physical or emotional abuse--and possibly from death. In many cases, however, termination was part of a disturbing trend in which the state removed children from the home and terminated parental rights, essentially because the parents were guilty of being poor. (34)
A. The Initial Removal
Child welfare agencies become involved in families' lives in various ways. Some parents agree to relinquish their parental rights on a temporary basis in order to overcome economic, physical, or personal hardship. (35) in other instances, outsiders who suspect child abuse or neglect make reports to child welfare agencies. (36) Initial removal by an agency requires a balancing of the risks and benefits of removing the child from the home, a practice that can be highly subjective. (37) Most states require agencies to analyze the risk of harm present in the home. (38) Removal is warranted if the perceived risk level rises to a certain threshold, but that threshold is ill defined. (39) Some state laws permit removal of a child if the risk level is assessed as "imminent" (40) or "serious." (41) Other states authorize removal when they find a situation contrary to the child's "welfare" (42) or "best interests." (43) Some states rely on a combination of these factors. (44)
Despite the statutory requirements for removal, national studies of child protective service practices indicate that agencies often lack structured models or assessment procedures for justifying child removal. (45) Even when agencies do follow a structured protocol, the protocol's reliability may be questionable. The problem of variation among case outcomes is aggravated when social workers have heavy caseloads and limited resources. (46)
once the state removes a child from the home, the child is placed in a temporary living situation with a relative, or in a foster home, group home, or other institution. (47) Federal law encourages the states to make concurrent plans, to attempt to reunify the parent with the child while simultaneously seeking alternative living arrangements in the event reunification fails. (48) This practice undermines any genuine pursuit of family reunification (49) because the state is hedging its bets.
The federal government asserts that reunifying child and parent is, in most instances, the desired outcome. (50) The federal Adoption Assistance and Child Welfare Act of 1980 (AACWA) requires states to make reasonable efforts to reunify families disrupted by social services interventions. (51) To encourage states to implement alternatives to removal-only strategies, the Act offers federal funding for efforts to reunify families. …