When Children Object: Amplifying an Older Child’s Objection to Termination of Parental Rights
Each year, thousands of children become wards of the state when a court terminates the legal rights of their parents. Between 2010 and 2014, more than 307,000 children lost their legal relationships to their parents in Termination of Parental Rights (TPR) proceedings. A growing percentage of child welfare cases involve older children. At the same time, too many young people lose their legal relationships with their parents without a family waiting to adopt them. The stakes are high for children in TPR cases; nonetheless, many children—even older children—cannot meaningfully participate in proceedings. Moreover, TPR cases threaten parents’ and children’s rights to familial association. Nonetheless, courts have struggled with how to incorporate the perspectives of older children in TPR cases. Children infrequently attend court proceedings, and the court may receive competing narratives regarding the child’s position. Children are not always represented by lawyers in TPR proceedings, and when they do have legal representation, it may only be by a guardian ad litem (GAL) who presents her position on what is in the child’s best interests, rather than advocating for what the child actually wants. This Article explores how courts should address an older child’s objection to TPR and ensure meaningful consideration of the child’s perspective. A small minority of states give courts the discretion to decline to terminate parental rights when an older child objects to termination. In states with such an exception, how should courts handle older children’s perspectives? What is the proper weight to give an objection? How should courts decide whether to terminate parental rights when an older child objects? This Article addresses these questions in three parts. First, the Article describes the state statutes that create exceptions to TPR when an older child objects and analyzes the case law relating to those exceptions. Second, the Article outlines why consideration of a child’s objection makes sense from legal and social work perspectives, especially in light of our current understanding of child development and legal decision-making in other contexts. Finally, the Article argues that states should adopt a hybrid version of the objections to termination currently in place in Virginia and Iowa. It also considers concerns of practical implementation.