Foundation Joins Briefs, Submits Briefs in Michigan TPR Cases
Is it constitutionally acceptable to terminate a parent’s rights if their child can be protected and provided for by a less restrictive means? This is the legal question behind the appeals in two cases currently before the Michigan Supreme Court, and the Parental Rights Foundation has weighed in with a resounding “No!”
In fact, we weighed in twice in each case.
First, through the United Family Advocates of which we are a part, we signed on as amicus curiae (friend of the court) on a brief prepared by Eliza McDuffie and David Shalleck-Klein of the Family Justice Law Center of the Urban Justice Center in New York, Christine Gottlieb and Marty Guggenheim of the NYU Family Defense Clinic, and Josh Gupta-Kagan of Columbia Law School.
(Guggenheim and Gupta-Kagan are both members of the Parental Rights Foundation’s Board of Advisors’ Committee on Child Welfare. They and Gottlieb have also been guests on our EPPiC Broadcast podcast.)
In addition, PRF Founder Michael Farris, who is on our Board of Advisors’ Committee on the Constitution, submitted an amicus brief on behalf of Citizens for Self-Governance and the Parental Rights Foundation. PRF Vice President William Wagner is listed as counsel of record on this second brief.
It’s not often we get to “double dip” (weigh in twice), but in these cases, it was worth it.
In the first case, In Re Bates Minors, a mother’s parental rights were terminated because of the length of her struggle with drug use. While there is no question the government has a compelling interest in keeping children safe, the children in this case were not in danger. Although the mother struggled with addiction, the father did not, and the children have been living with him. A simple order awarding the father full custody of his own children would have been sufficient to keep the children safe, and would be much less restrictive than terminating the mother’s rights.
Also worthy of consideration, all parties agreed that although her addiction meant the mother could not be responsible for her children, she still had a loving and close relationship with them, to the point that a visitation specialist testified that terminating the relationship would be “detrimental” to the children.
As the UFA brief concluded, “Absent evidence of harm from the continuing relationship with the parent—and, indeed, in the face of evidence that terminating the relationship would cause harm—there is no compelling interest in the termination.”
The second case, In Re D.N. Dailey Minor, is similar: A loving father who struggles with addiction, whose child has been staying safely with a grandparent. The father does not exercise responsibility for the child—his (the father’s) mother does that. But the father is able to remain in the child’s life with no danger to the child.
Once again, there is no danger that the child would languish in foster care if the parent’s rights aren’t terminated to make room for adoption. In neither case was the child even in foster care. Rather, a simple order of guardianship for the grandmother would see that the child is taken care of, while a loving parent can remain a part of the child’s life.
These are not perfect parents. Rather, they are the kind of parents the U.S. Supreme Court had in mind when writing its decision in Santosky v. Kramer, 455 US 745 (1982):
“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.” (Emphasis added.)
The significance of these cases, and of this argument, cannot be overstated.
The federal Adoption and Safe Families Act pushes states to move to terminate parental rights anytime a child is in state custody (foster care, institutional, or kinship placements) for fifteen of the last twenty-two months. This law does not mention any consideration of less restrictive means, such as in the cases above, where the parents are failing to meet their reunification milestones, but the needs of the children are still being safely met by family.
Should the Supreme Court of Michigan agree with our position, their ruling will create an opportunity to shift the entire discussion of parental rights terminations.
Termination of Parental Rights, or TPR, has been called the “death penalty” of family court. Yet, nationally, we see 50,000 TPRs every year.
Families like the Daileys and the Bateses prove that many of these are not necessary. And when they are not necessary, we know children fare better if their family connections are preserved.
We are proud to be part of this vital discussion, and we wait hopefully for a positive outcome in Michigan that might ultimately lead to significant change for vulnerable families across the country.
Thank you for standing with us so that we can weigh in on cases like these!
You can read the text of all four briefs at the following links: