Termination of Parental Rights as a Private Remedy: Rationales, Realities, and Alternatives

Abstract

Terminating a parent’s rights—a drastic measure—is commonly associated with public child welfare proceedings, where a state or county child protective services agency has removed a child from their home based on findings of abuse or neglect. In fact, state laws across the country also permit private individuals to petition a court to terminate another person’s parental rights. While private termination actions are not uncommon, there has been scant scholarly examination of these matters, their underlying purposes, and their role in contemporary family law. Termination of parental rights orders in any context interfere with parents’ fundamental constitutional rights, but parents in privately initiated proceedings are afforded fewer procedural protections than in those initiated by the state. Private termination actions further the stigmatization of substance use disorders, incarceration, poverty, and mental illness, and they disproportionately target parents from vulnerable and marginalized communities, especially parents who are low-income. The Article identifies and critiques three rationales for permitting termination of parental rights as a private remedy, each of which can, in nearly all contexts, be served equally well through another legal mechanism without permanently severing the legal parent-child relationship. Termination of a parent’s rights should be permitted only where there is no such alternative and where a court finds that there will be a specific affirmative benefit to the child, or harm avoided, by such termination. Courts should also ensure that rigorous procedural protections are extended to parents who are the subject of private termination petitions.

Keywords: child protection, child welfare, dependency, adoption, stepparents, foster care, family law, guardianship, parentage, parental rights, constitutional law, termination of parental rights

JEL Classification: K36