“More needs to be done to improve foster kids’ options for stability in their lives. Premature modification of parental rights too often leaves children in foster care with no legal family.” That’s how California Rep. Karen Bass explained the 21st Century Children and Families Act, legislation she introduced last year that would “remove virtually all federal requirements that states seek to terminate the rights of parents within a specific timeline in child welfare cases,” in the words of the Imprint.
The current standard, set by the Adoption and Safe Families Act (1997), is as follows: When children have been in foster care for 15 of the past 22 months, the state should begin termination proceedings. For cases in which there are aggravating circumstances (including severe violence or the death of another child in that parent’s care), the state doesn’t even have to wait that long.
But these days, states blow by these deadlines. Of the children who entered foster care in 2015, only 68% of them exited care in fewer than 18 months. A quarter were in care between 18 and 36 months, and more than 7% neither exited care nor had a termination of parental rights after more than three years. And many places are much worse. In Cook County, the area around Chicago, 40% of children entering foster care in 2015 were still there at the end of 2019.
A recent report from the Department of Health and Human Services found that “the poor track record of states” in terminating parental rights in a timely fashion “raises questions about whether delays occur because systems are not in place to generate the outcomes the law is set up to obtain, or whether delays reflect workers’ and judges’ ambivalence about the requirements. … If institutional and individual stakeholders disagree with the requirements as written, they may not be followed.”
Which raises the question: How much does any of this matter? Or, in the words of a report by Vivek Sankaran, who directs the Child Advocacy Law Clinic at the University of Michigan: “Termination of Parental Rights: What’s the Rush?” After all, it sounds draconian: Why would we ever want to end the connection of a child to his or her biological parents, even if they have been abusive or neglectful? As Sankaran and other advocates suggest: “Why not presume that it serves the best interests of children to preserve parental relationships that are meaningful to a child even when a parent cannot care for a child? … Why not allow children to be surrounded by all those who love and care for them, rather than permanently cutting off important relationships in the name of finality?”
The answer is that there are countless stories of children who never find permanent, loving homes precisely because of the lack of that “finality.” Parents who do want to adopt are rightly reluctant to get into a situation in which the biological parents’ rights have not been terminated, even if they are in favor of an open adoption and continuing a relationship with the biological parents. Keeping parental rights means that the parent will always have some say in what happens in that child’s life. Living in the state of limbo that Sankaran, Bass, and many other members of the child welfare establishment advocate has done real damage to the emotional development of the children who end up cycled and recycled through the system that was supposed to give them a chance at a future, not trap them in their chaotic present.
The recent stories of two children, one in New York and one in New Jersey, are among the more compelling illustrations of the problem.
The first is of an 8-year-old boy we’ll call Seth so as not to implicate the adults who have spoken out about his situation. He has been in foster care for almost five years, first removed from his mother’s care at the age of 3 when his neighbors heard him crying for hours on end. His mother had left him alone in her apartment for more than 24 hours. She has a history of mental illness, and each time Seth was in her care, there were incidents that left people concerned for his safety. At one point, the mother and son were in a homeless shelter when she threatened one of the other residents with a shovel.
When the Administration for Children’s Services stepped in, Seth’s uncle volunteered to take him. For about a year, Seth lived in a brownstone in the Bronx with his mother’s brother. When his mother started showing up unannounced, the brother asked her to let him know ahead of time about her visits. His mother proceeded to rip up his garden, destroy his security cameras, and threaten him. He was forced to get a restraining order against her. He stuck it out until his health started to decline and then asked others to step in.
Then, Seth went to live with an aunt, also in New York City. For five months, things were relatively calm until Seth got a burn on his arm reaching for a hot dog from a vendor at the park. His mother reported his aunt to ACS for abuse, and Seth was moved again. This time, he went to stay with a nonrelative foster parent in Brooklyn. The foster parent developed a relationship with his other family members and regularly arranged visits with his aunts, uncles, and cousins for almost a year.
Another aunt in Florida volunteered to take him in — permanently. Seth’s mother had regularly scheduled video chats with her son during COVID, but it turns out she was also sending him secret messages encouraging him to report that his aunt was abusing him. He was removed from her care and sent back to New York. The same foster parent volunteered to take him back in.
Throughout the past five years, Seth’s mother has had regular visits, both virtual and in-person, with Seth. He has talked to all of his caregivers about what happens during these visits. His mother warns him that people are watching him, that he should be afraid of unknown forces working to harm him. He doesn’t want to visit with her anymore, but she will not relinquish her hold on him. He has become increasingly agitated, recently leaving his foster parent’s home in the middle of the night, possibly sleepwalking. And he has been in three more homes since then.
In some ways, Seth has the ideal situation for a child whose parent is unable to care for him. He is surrounded by relatives he knows and who are happy to have him in their homes. They are even educated professionals with good jobs. As Dara, the nonrelative foster parent who has been trying to help the extended family, tells me, “These are good people, and [Seth] would be extremely lucky to live with any one of them. He is not a kid without family.”
These are exactly the kind of people whom advocates want to take in children like Seth. But his continued relationship with his mother has made their relationships with him impossible. Seth’s mother physically threatens her siblings and reports them to ACS, endangering their relationships with their own children and putting their jobs in jeopardy. And most of all, her regularly mandated visits with Seth have caused him deep emotional distress. The only thing that will put an end to Seth’s trauma and ensure that he has a permanent, loving home is terminating his mother’s rights.
In another case, an almost 7-year-old girl we will call Tisha has been in foster care in southern New Jersey since she was 2. The first hearing to discuss the termination of parental rights was scheduled in September 2019 and has been put off several times since then. A new judge assigned to the case in 2020 announced he was unhappy with the state’s plan and that they should draw up a new one, resetting the clock on the parental-rights termination process. Tisha’s mother suffers from mental illness and substance abuse. Tisha has serious medical problems, including epilepsy, and her mother has proved herself incapable of managing the situation.
Each time a hearing is scheduled, Tisha’s foster mother Angie, who wants to adopt her permanently, has to complete another “bonding evaluation” with a licensed psychologist to determine whether or not she and the child she has been caring for over the course of five years are sufficiently attached. But for Tisha and Angie, more difficult than the bureaucracy are the regular visits Tisha is mandated to have with her biological mother.
While Angie goes out of her way to talk about how Tisha has two mothers who both love her, Tisha’s biological mother says there is “no such thing.” Tisha comes home from the visits screaming at Angie that she is not her “real mother.” The older Tisha gets, the worse this tension gets, and her awareness that she is living in a state of limbo only grows. Every failed attempt at termination is a missed opportunity to make Angie’s life stable and let her relax and become part of the only family she really knows.
In the cases of both Tisha and Seth, the state has all but determined that their biological mothers cannot care for them. The harm in continuing the relationships with these women is real. Termination of parental rights may seem like a cruel act for any government to take against a parent, but if we care about ensuring that children can find stable, loving homes, then preserving relationships with neglectful or abusive parents is even worse.
Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute and a senior fellow at the Independent Women’s Forum.
