Gillian Katz Lamon
Volume 76, Issue 3, 885-946
Over the last 50 years, federal child welfare legislation has wrestled with how to reconcile the competing goals of the child welfare system: child protection, family preservation, and permanency. The United States foster care system has evolved alongside transformations in private adoptions. As the prospects for private adoption have dwindled, the pendulum has shifted toward prioritizing child protection. Youth in foster care have suddenly become the private adoption alternative. Most recently, some state courts have granted foster parents standing to intervene in termination of parental rights proceedings. In those cases, foster parents are permitted to battle with natural parents for their children—with the court’s permanent placement decision coming down to a “best interests” determination. Natural parents face patently unfair odds. The child welfare system is pitted against them from the point of removal.
This Note examines the historical and federal legislative context that made it possible for nonrelative foster parents to assert claims for adoption over the objection of natural parents whose parental rights have not been terminated. It considers the constitutional, case, and statutory law that intervening foster parents use to support their argument that intervention is warranted based on a psychological parent-child relationship. This Note rejects that argument—finding that foster parents’ reliance on these legal bases is ill-founded. This Note argues that permitting foster parents to intervene in termination of parental rights proceedings encroaches on the fundamental liberties of natural parents as articulated by the Supreme Court in Smith v. Organization of Foster Families for Equality and Reform and Santosky v. Kramer. Some states recognize the inherent disparity between natural parents and foster parents and warn against comparative assessments of foster parents’ and natural parents’ fitness. Others embrace those comparative assessments, with the justification that they promote “the best interest of the child.” Many states fall somewhere in between.
A “speedy path to permanency” with nonrelative foster parents should not be pursued when family preservation via reunification is possible. Foster parent intervention in termination of parental rights proceedings is contrary to Supreme Court jurisprudence and any rehabilitative or restorative purpose the child welfare system may have. We are in a critical moment: the threats to natural parents’ rights in dependency cases are more palpable than ever. The protections of Smith and Santosky need to be reinforced. Accordingly, this Note proposes that states amend their statutory schemes to prohibit or severely limit foster parent intervention in dependency cases unless parental rights have already been terminated. This Note recommends new federal legislation that removes the incentives for foster-adoption over reunification, and instead reallocates resources toward supporting reunification, and preventing removal in the first place.