Document Type

Article

Publication Title

Cardozo Law Review

Abstract

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.

First Page

1319

Volume

45

Publication Date

2024

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