NCJ Number
59590
Journal
Tulsa Law Journal Volume: 12, Dated: (1977) Pages: 528-544
Date Published
1977
Length
17 pages
Annotation
AN EXAMINATION OF STATE LAWS ALLOWING TERMINATION OF PARENTS' RIGHT TO CONTROL THEIR CHILDREN CONCLUDES THAT SUCH LAWS APPEAR UNCONSTITUTIONAL IN THE LIGHT OF THE LESSER RESTRICTIVE ALTERNATIVE DOCTRINE.
Abstract
THE LEGAL BASIS FOR AND PROCEDURES USED IN STATE INTERFERENCE WITH THE PARENTAL RIGHT ARE DESCRIBED. ANALYSIS OF SUPREME COURT CASES DEALING WITH CLOSELY RELATED RIGHTS SUGGESTS THAT THE PARENTAL RIGHT, ALTHOUGH NOT ABSOLUTE, IS ENTITLED TO CONSTITUTIONAL PROTECTION. MOREOVER, THE LESSER RESTRICTIVE ALTERNATIVE DOCTRINE MEANS THAT STATES, UNDER THE DUE PROCESS CLAUSE, MUST PURSUE COURSES OF ACTION WHICH IMPINGE ON IMPORTANT RIGHTS AS LITTLE AS POSSIBLE. NEVERTHELESS, CURRENT TERMINATION PROCEEDINGS DO NOT DISTINGUISH BETWEEN MILD AND SERIOUS PARENTAL NEGLECT AND ABUSE, AND THEREFORE RESULT IN INAPPROPRIATE DECISIONS, BECAUSE OF FOUR PROBLEMS: (1) OVERLY BROAD STATUTORY DEFINITIONS OF NEGLECT, (2) LOWER COSTS OF TERMINATION THAN OF REHABILITATION, (3) LACK OF ALTERNATIVES TO TERMINATION IF NEGLECT IS FOUND, AND (4) LACK OF PROCEDURAL SAFEGUARDS. IT IS RECOMMENDED THAT STATUTES BE REDRAFTED TO (1) ADD A DEFINITION OF TERMINATION'S PURPOSE, (2) LIST CASES IN WHICH TERMINATION IS JUSTIFIED, AND (3) LIST ALTERNATIVES OTHER THAN TERMINATION, SUCH AS TEMPORARY REMOVAL OF THE CHILD. RECOMMENDED PROCEDURAL SAFEGUARDS INCLUDE (1) MAKING BOTH CUSTODY AND TERMINATION HEARINGS ADVERSARIAL, (2) PERMITTING A PARENT TO CORRECT THE CONDITIONS THAT JUSTIFIED A FINDING OF NEGLECT, (3) SEPARATING CUSTODY AND NEGLECT HEARINGS BY A TIME PERIOD SPECIFIED IN THE CUSTODY ORDER, AND (4) HAVING NO TIME LIMIT IN WHICH THE TERMINATION HEARING MUST BE HELD. FOOTNOTES ARE PROVIDED. (CFW)