Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Nonoffending Parents
Volume 82, No. 1, Spring 2009
By Vivek S. Sankaran [PDF]

Over the past hundred years, a consensus has emerged recognizing a parent’s ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings.

Yet, despite these advances, juvenile courts continue to disregard the constitutional rights of nonoffending parents, individuals against whom the state has made no allegations. Nearly every state permits juvenile courts to deprive nonoffending parents of rights to their children based solely on findings or admissions of child maltreatment by the other parent. Such actions not only raise many constitutional questions, but also jeopardize children’s safety and well-being by increasing the likelihood that they will unnecessarily enter foster care and that their parents will disengage with the process. This Article proposes a policy solution that reflects the correct balance between safeguarding the constitutional rights of the nonoffending parent and preserving the flexibility of juvenile court judges to issue orders ensuring that the child’s needs are met.

Read Article…