Introduction
The legal construct of termination of parental rights—the act of permanently severing the legal relationship between parent and child—is deeply embedded in contemporary American child welfare law. Indeed, since the passage of the Adoption and Safe Families Act of 1997 (ASFA), it can fairly be said that our entire foster care system is structured around the threat of terminating parental rights. From the day a child is taken into state-supervised care, the clock begins ticking toward the possible permanent destruction of the parent-child relationship. In response to the financial incentives in ASFA that reward states for terminating parents’ rights, states have ended over 2 million parent-child relationships. The United States now permanently severs the parental relationships of over seventy thousand children a year. As a result, over one in every hundred children in the United States are legally cut off from their parents. Black children are more than twice as likely as white children to have their legal ties to their parents severed, and the rate is even higher for Native American children.
The shift in child welfare policy to favor more frequent termination of parental rights has been subject to considerable debate. Some argue it serves children’s interests, particularly their interest in stability. Critics have emphasized the profound costs to children of losing their relationships with their families and, often, the communities from which they come. Professor Dorothy Roberts, among others, has highlighted the structural racism of the child welfare system and the particular harm terminating parental rights inflicts on Black families and Black communities. Others have documented the injustice of disproportionately severing parent-child bonds in Native American, low-income, and otherwise disadvantaged families.
The most powerful calls for change have come from activists whose own families have been separated by the child welfare system. As one collective of directly impacted Black mothers put it: terminations of parental rights “are a violent legal mechanism that kill families, and ASFA is the civil death penalty that enacts the execution.” ASFA, they contend, “is a continuation of many troubling histories in the United States where normative judgements [were made] around who were worthy families and who were not, who were worthy communities and who were not.”
These critiques are driving an important reassessment of the widespread practice of terminating parental rights. But there has been a significant omission in the discussion: virtually no attention has been paid to the fact that until relatively recently it was entirely unheard of to sever all of a child’s parental ties because no such legal step was available. The legal mechanism used to terminate parental rights, which is now ubiquitous in child welfare proceedings, did not exist until the mid-twentieth century and, when introduced, was rarely used. Understanding how and why this legal mechanism developed reveals that it is now used in ways that are inconsistent with its initial purposes, inflict unintended consequences, and can no longer be justified.
The phrase “termination of parental rights” did not exist until the late nineteenth century. For nearly a century after the phrase was introduced in the case law, parental rights were only terminated within adoption proceedings, simultaneously with parental rights being granted to the adopting parents with whom the children already resided. This Article will argue that judicial action in those proceedings was better understood as a transfer of rights than as an extinguishing of rights. It was only in the 1940s that the idea arose of separating the two components of an adoption proceeding into two distinct legal proceedings: one that could terminate the birth parents’ rights and another that could grant parental rights to adoptive parents.
In the middle of the twentieth century, for the first time, termination of parental rights statutes were enacted around the country. Even after their passage, termination of parental rights remained a rare event for most of the rest of the century. Then, in the 1990s, a major effort to expand adoption arose. At a time when the number of babies voluntarily given up for adoption by their parents had dropped, Congress passed ASFA, which dramatically increased the rate at which parental rights were terminated, making far more children available for adoptions over their parents’ objections.
A critical shift had occurred between the passage of termination statutes and the explosion in their use. This Article explains that traditionally in the United States, parents lost their parental rights when they voluntarily relinquished their children to relatives or other caretakers, and that disputes about parental rights mainly involved private parties. Termination of parental rights statutes were initially aimed at legally disconnecting children from parents who had abandoned them. But by the 1990s, the public child welfare system had grown dramatically, and almost all the children in out-of-home care had been involuntarily separated from their parents by state officials. In stark contrast to the private party context in which termination of parental rights was developed, today it is primarily the state that severs parental rights and forces adoptions of children over their parents’ objections. Courts now routinely sever parent-child relationships on grounds having nothing to do with abandonment, and when the emotional bonds are meaningful to both parents and children.
A robust literature has traced the expansion of the American child welfare system in the second half of the twentieth century, describing how the system treats the predictable ills of poverty as individual pathologies, rather than as systemic economic issues to be addressed through a safety net of material support for low-income families. This approach ties economic support for families to government surveillance and intrusion into family life. Important research has explored the threads that connect the modern child welfare system to its underpinnings in the punitive, Elizabethan poor laws, and documented the recurring pattern in American history of unjustly separating children in marginalized communities from their parents, including during slavery, Reconstruction, the Orphan Train movement, Native American boarding school programs, and the Indian Adoption Project. Many of these examples underscore that child welfare efforts conducted in the name of children’s best interests are often infused with prejudices against marginalized communities and lead to wrongful family separation.
Against the backdrop of this literature, this Article explains how a legal mechanism that developed in the private adoption context has been inappropriately conscripted by the child welfare system to become one of the legal tools used most vigorously by the state against low-income families, particularly families of color. Because the shift came incrementally and without debate, current practitioners and policymakers have failed to see how dramatic a transformation has occurred.
Excavating the history of this legal concept shows that whatever their original virtues, none of the reasons that initially justified detaching termination of parental rights proceedings from adoption proceedings have merit today. Moreover, terminating parental rights outside of adoption proceedings has led to the unintended consequence of creating legal orphans—children who have no legal connection to any family and suffer a range of negative outcomes. This Article argues that the purposes of terminating parental rights can be better served by returning to the transfer-of-rights model that was initially used for adoptions. Among other benefits, the proposed alternative approach would end the historically anomalous phenomenon of legal orphanhood.
This Article proceeds in three Parts. Part I begins with a historical analysis that situates termination of parental rights within U.S. adoption law more broadly, identifying the legal questions raised in early adoption case law that laid the groundwork for developing stand-alone termination of parental rights proceedings, and examining how the growing demand for babies to adopt and new concerns about children languishing in foster care led to the idea of matching “demand” with “supply” by making more foster children eligible for adoption. This Part explains how the supply-and-demand analysis led to a legal mechanism for terminating parental rights outside of adoption proceedings.
Part II considers why the calls to increase adoption included explicit calls to detach termination of parental rights actions from adoption proceedings. It identifies four concerns that motivated the push to establish stand-alone termination proceedings and argues that these concerns have little, if any, validity in the current child welfare system. It also explains that, to the extent there is any continuing belief that terminating parental rights serves a legitimate interest in recruiting adoptive parents, an alternative, less draconian legal mechanism can achieve that goal without inflicting the harms that result from the current approach.
Part III describes the shift in the foster care population between the time stand-alone termination of parental proceedings were introduced and the 1990s, when ASFA was enacted. In the earlier era, most foster children had been voluntarily placed in foster care by their parents; by the 1990s, most foster children had been separated from their parents by the state. When termination proceedings were introduced, the parents whose rights were terminated typically had minimal contact with their children, and terminating parental rights was viewed as bringing the legal relationships in line with the actual relationships. Today, terminations of parental rights commonly sever close family bonds. Consequently, a legal mechanism that was once viewed as a noncontroversial, almost administrative procedure, is now referred to by litigants and courts alike as the family “death penalty.”
Part III also documents the changing adoption landscape in the 1970s and 1980s, in which the number of babies voluntarily relinquished by birth parents dropped dramatically as abortion became more accessible and single motherhood became more acceptable. Thus, the time at which the child welfare system most aggressively began increasing the number of children put up for adoption over their parents’ objection was a time when prospective adoptive parents were frustrated by the lack of children to adopt.
This Part argues that it is important to consider how the narratives around transracial adoption interacted with public dialogue about “the best interests” of foster children during this time. There were competing narratives between proponents and opponents of the adoption of Black children by white parents. Notably, at the same time that the federal government offered states incentives to increase the adoption of foster children, federal law came down on the side of “race-blind” adoptive placements for children in state care with passage of the Multiethnic Placement Act. This legislative combination, coupled with the overrepresentation of Black children in foster care, meant that terminating the rights of more parents of foster children would lead to the adoption of more Black children by white foster parents.
Revisiting the birth of termination of parental rights offers strong reasons to stop terminating parental rights outside of adoption proceedings. The current practice must be reassessed with recognition that severing family ties in marginalized communities serves the interests of adults in more privileged communities—a correlation that should provoke extreme caution in light of the American child welfare system’s shameful history of breaking up disadvantaged families.