The UN Committee on the Rights of the Child recently held two days of general discussion on the rights of children in alternative care — e.g., foster care, group homes, or other placements outside family. Many of the points made over the course of the conversation focused on the rights of children with disabilities and the need for a general comment on the rights of children in alternative care.
These discussions on the international level raise an important issue for us here in the US: what rights does the child have to live with his or her family? Much of US jurisprudence is focused on the rights of parents to control of their children unless clear and convincing evidence demonstrates that the parent does not have the capacity to keep the child safe. But what of the child’s right to live with a parent who lacks capacity, or at least with extended family, and the corresponding duty of the state to make things “right” so the child can return home?
The Supreme Court has long held that there is a “fundamental liberty interest” that parents and guardians have in directing the upbringing and education of children under their control. The Convention on the Rights of the Child agrees, clarifying in Article 5 that States must respect the rights of parents to raise their children. When parents — through incapacity or wrongdoing — are shown not to be able to exercise that right, the State has the authority to intervene. What, then, are the child’s rights against the State to maintain his or her family togetherness?
While the US Supreme Court has never addressed the issue head-on, there are a number of cases suggesting that the child’s right to family is a fundamental one. In Smith v. OFFER, the Supreme Court even acknowledged that “family” might mean more than biological relationship..
In practice, most child welfare agencies acknowledge the primacy of family. By enforcing reasonable efforts requirements in federal law that require the child protection agency to avoid removal from parents and reunite with parents when possible, state juvenile court judges can enhance the right of the child to be with family. In most cases, remaining with parents while engaging in “family preservation” services or temporarily staying with relatives pending reunification with parents is the optimal approach.
Sometimes, the question of whether a child should be removed from or reunited with a parent becomes murky. Here are a few of those “difficult” questions:
What about children whose mental health or developmental disability issues are not being addressed despite the parents’ best efforts to obtain services? Do these children have the right to the services that will allow them to stay with their family?
What of the right of children with such disabilities to be in as home-like a setting, either with their family or with relatives? Lawsuits have been filed in, for example, New Hampshire and Washington State challenging practices of placing children with disabilities in institutional settings, even out-of-state, rather than providing families with the resources necessary to keep their children in their own care.
In some situations, parents with cognitive limitations or similar disabilities have seen their children removed permanently. On occasion, the federal government has ruled this practice to violate the Americans with Disabilities Act and similar disability-protection legislation. Wrapped up in these decisions is the right of the child to that parental contact and love. The States, according to the federal government, have an obligation to help these disabled parents to maintain custody of their children.
On occasion, a child will be placed with a foster parent for such a long period, during which the parent has not “stepped up to the plate,” that the argument is made the child has formed a new family. Based on valid psychological concepts such as “attachment,” the argument is made that children who have been in such placements for long periods of time deserve stability. Some States, including Georgia, have adopted legislation promoting this idea of placement stability. The US Supreme Court in Smith v. OFFER touched on but did not clearly rule on this issue.
In considering what to do in a situation where a parent has been negligent or incapacitated in giving his or her child the love and care they need, perhaps the law might take a different approach to situations where a parent’s rights and the needs of a child come into conflict. When clear and convincing evidence shows a parent can’t do the job on his or her own, what duty does the State have to uphold that child’s right to be with his parent or family member?
In the end, the State has a duty to uphold rights, and if a child has the right to family, then state child welfare agencies and courts must do more to ensure that (1) children can remain safely in their homes when parents are struggling; (2) that children who can’t remain at home are placed with close family with whom they already have an attachment or bond; (3) when children have to go into foster care, that they are placed in the most family-like setting appropriate to their needs, including any need for treatment; and (4) when things are so bad that the parent-child relationship can’t be repaired, that the State move as quickly as possible to help that child find a safe, permanent, and loving home.
Such an approach would respect not only the right of the parents to raise their children but also the right of the child to a loving, permanent connection with family.
Thanks for this. Here is a paper I wrote on the same. It's not published yet but this is almost final. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3436080#:~:text=A%20child's%20enforceable%20constitutional%20right,on%20the%20basis%20of%20an
Thank you for sharing this. If only it were this easy. I’ve served Foster youth for over 30 years. The reality is that fit and wiling relatives are explored prior to placing children in foster care. Permanency hearings are in place to make continual efforts to find alternatives outside of foster care. Parents are working a case plan when children enter care to work toward reducing the risk and having the necessary skills to parent the child in the home again. The reality is that foster parents are rarely equipped to manage children with high level behaviors and mental health issues. The need to provide services to this population has been in existence since the 1800’s. Institutions in those days were more often informal and without oversight resulting in many practices that were not safe, practical, or evidence based. The formation of licensing facilities and requiring national accreditation ensures that children are getting quality services while in care. The reality is that if children could be maintained safely at home or with extended families, they would not be entering care today. Sadly, family trauma is often multigenerational and leaves few options other than removing the child from the home. We can agree that foster care is not the preferred solution, however it is a system that has been around since the beginning of time. Ensuring that providers have the tools they need to manage these complex issues is money well spent. We miss you here in Georgia. ❤️