Document Type
Article
Publication Date
2024
Abstract
“Our decision in [Pierce] holds that parents have a fundamental constitutional right to rear their children . . . . I would apply strict scrutiny to infringements of fundamental rights.” “[S]trict scrutiny leaves few survivors.” Termination of parental rights (TPR) stands as “a unique kind of deprivation” that results in the state irrevocably severing a parent’s fundamental right to care for their child. In The Ties that Bind Us, we scrutinized the child protection system’s overuse of TPR, employing clinical, empirical, and constitutional perspectives. This Article advocates for a constitutionally anchored framework aimed at enforcing strict scrutiny when considering TPR petitions or reviewing TPR decisions. Grounded in constitutional principles, the proposed framework requires courts to ensure the state demonstrates that TPR is the least restrictive means of accomplishing a compelling governmental interest. Drawing from Alabama’s steadfast application of strict scrutiny in TPR cases for over four decades, the framework comprises three components: proof of constitutionally sufficient statutory grounds for TPR, exploration and rejection of less restrictive alternatives, and a determination that TPR is in the child’s best interests. Each component independently serves as a basis for denying TPR petitions or reversing TPR decisions. Child protection administrative data reveal that Alabama’s application of strict scrutiny to TPR decisions did not negatively impact safety and permanency outcomes for children in foster care. A consistent application of strict scrutiny to TPR actions offers a safe path towards reversing the child protection system’s overreliance on TPR, ensuring family courts comply with well-established constitutional principles that safeguard children and parents’ fundamental rights. A uniform application of strict scrutiny to TPR decisions should significantly reduce the rate at which the child protection system permanently severs the legal relationship between a parent and their child and would support a long overdue paradigm shift in the child protection system by prioritizing relationships over legal dispositions.
Recommended Citation
Church, Christopher and Vivek Sankaran. "Applying Strict Scrutiny in Termination of Parental Rights Proceedings: Why Alabama’s Jurisprudence Should Reshape Child Protection Practice." Alabama Law Review 76, no. 2 (2024): 383-416.
Comments
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