Michigan’s Highest Court Hears Challenge to Terminations of Parental Rights

Thousands of Americans lose parental rights in the civil foster care courts each year due to abuse, neglect or abandonment — an outcome considered to be the family law equivalent of the death penalty.

But on Wednesday, a pair of Michigan parents whose kids are safely housed with relatives will appear before the state’s Supreme Court, challenging how termination of parental rights decisions are made. They claim that revoking their rights is too extreme a measure, given that they’ve maintained strong, supportive bonds through supervised visits. Terminating their rights, the parents argue, violates the constitution and does not serve children’s “best interests.”

“Too often, what we’re doing in these cases is narrowly defining parental rights as the ability to physically care for a child. But companionship is also enshrined in our values and constitution — even if the kid is not physically with a parent,” said Vivek Sankaran, a clinical professor at the University of Michigan’s law school who is representing the parents in the supreme court case. “When is a relationship really so harmful that severing it completely is the only remedy that can protect the child?”

Court briefs in two similar cases the court will hear together — In Re Bates and In Re D.N. Dailey — have attracted an unusual array of supporters backing the plaintiffs’ arguments. They include family law attorneys, civil rights organizations and conservative groups that say the cases could set an important precedent on one of the most “fundamental liberty interests” under the U.S. Constitution: the right of parents to remain in contact with their kids.

Lawyers for Michigan’s Department of Health and Human Services (DHHS) defend the lower courts’ 2022 decisions to terminate the plaintiffs’ parental rights. In filings, state’s attorneys argue that before asking a judge to terminate a parent’s rights, the agency weighs alternatives, and they have been ruled out. In the pending cases, state the court documents, the parents had yet to fully escape drug and alcohol addictions that endangered their children.

The agency also defends the rights of the children’s relatives to be free of future legal challenges by parents. Kin caregivers should not be faced with the “the burden of constant vigilance and active protection against an unfit and/or dangerous parent,” one brief states. “For the best-interest analysis, DHHS and the courts must begin with the child and the child’s welfare, not from a presumption that is rooted in protecting the liberty of the parent.”

The father and grandmother who have full custody of the children in the two families are not party to the current cases, and it’s unclear from court documents which side they support.

The state agency did not respond to a request for further comment.

Revising common practice

The termination of parental rights became more common after the foster care population grew exponentially in the 1980s. Subsequent reform laws set tighter deadlines for parents to comply with court mandates or face the permanent loss of the right to care for their children — a precursor to adoption.

A 2020 research paper published in the peer-reviewed journal Child Maltreatment found that termination of parental rights “is far more common than often thought.” The authors estimated that as of 2016, 1 in 100 children in this country would experience a parental rights termination before they turned 18, with higher rates for Black and Native American children. According to federal data, in 2021 there were roughly 65,000 children in foster care nationwide who had experienced a termination of their parent’s rights, but had yet to be adopted.

Yet for years, legal challenges to the termination of parental rights have not fared well in the appeals courts. A 2013 memo written to judges by Michigan court administrators reviewed hundreds of initial appeals, and noted that less than 15% were successful each year.

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