Literature Review on Parental Rights
The termination of parental rights implies to the permanent elimination of all the parental rights and duties, including the residential parental rights as well as duties. Residential parental rights and duties as those rights as well as duties that remain with the parent after a legal custody and protection, or both, have been given to another individual or agency including and not limited to the right to permission to adoption, the responsibility to support, the right to decide the child’s religious association, as well as visitation unless restricted by the court. Suspension of parental rights, on the other hand, implies to the temporary elimination of termination of parental duties and responsibilities for a child (Copps, 2002).
A parent has almost complete rights and authority to manage all aspects of his or her child’s life. These parental rights of control are primarily justified under two major justification theories. Traditionally, the parents are understood to have inherent rights as well as control in their children similar to those in properties. A similar level of rights and control is justified under a more modern concept that maintaining the control of natural parents is typically the paramount importance of a child (Copps, 2002).
Regardless of its pervasiveness under ordinary situations, almost each state has laws and statutes under which parental rights to a child could be ended. Fundamentally, these laws and statutes interrupt the parental rights under for distinct conditions namely divorce proceedings, guardianship proceedings, adoption proceedings, and when the child’s natural parents have abused or neglected him/her. Although interruption of the rights in the last situation is prompted and enforced by state, courts in neglect proceedings are rarely needed to structure their orders in a narrower manner or exercise greater restraint than those courts acting in divorce proceedings, guardianship proceedings, and adoption proceedings. Apart from child neglect, many issues are usually involved in the termination or suspension of parental rights. These issues include substance abuse, poverty, mental illness, incarceration, domestic violence, stigmatization effects of child welfare involvement, as well as parent/child visitation.
According to Copps (2002), child neglect is the principal reason for children becoming involved with children welfare systems in the United States. It is approximated that about 60 percent of kids in the America have been victims. Despite its ubiquity, the issue of child neglect is not identified as a criterion for terminating parental rights. It is however, listed as a basis for termination in almost 35 states.
The prominence of child neglect in state termination laws reflects the fact that it has served the reason for parental involvement with the system for years. Child neglect is usually associated with a parent’s failure to give a child’s needs such that the failure either harms or poses risks to the child. Neglect of a child may take different forms such as failing to provide or secure medical treatment for a child, inadequately supervising a child, ingesting drugs while pregnant or exposing a child to the use of drugs, failing to attend to a child’s cognitive and emotional needs, as well as maintaining poor sanitation or hygiene at home. Neglect as well appears to be fairly within families as indicated by the fact that it is the most common type of re-abuse. In general, it is estimated that parental mental illness, homelessness, poor medical care, substance abuse, and family breakup can lead to child neglect.
Even though child neglect is the most common form of child maltreatment, there exists a substantial body of research indicating it. Social and legal work researchers have made tremendous efforts in order to define this term with specificity as well as precision. A variety of studies have used the term research to mean passive as well as active abuse and exploitation that affect children’s emotional, social, physical, and educational needs. This observation has remained highly salient for some time. Other scholars have argued that the definitions of child neglect have proven cumbersome to develop due to the differences over the dividing line between responsible or minimum but satisfactory parental care. Clarity concerning where this dividing line need to be drawn is complicated by the possibility that children welfare workers may deduce judgments about neglect, which are reflective of their own and personal values. Similarly, there is likelihood for neglect to reveal itself in a different way across families, social contexts, and cultures. Moreover, child neglect remains the most vexing issue for the children welfare system. (Hudson et al, 2008).
Hudson, et al (2008) states that it has been well found out in the social work literature that those families that are involved in child welfare systems are tremendously poor. Family poverty is often implicated in children being taken into foster facilities, and especially due to the issue of neglect. More specifically, studies have shown that low family incomes as well as the use of welfare are closely related to child neglect than any other form of maltreatment. Moreover, rates of child neglect are more prevalent in low-income backgrounds. Particular aspects of poverty such as parental unemployment and perceptions on material hardship are highly associated with higher risks of child abuse and consequently, termination or suspension of parental rights.
According to Keller, Salazar, & Courtney (2010) parental substance abuse, results from social work studies have indicated consistently that substance abuse is a significant factor for parental participation in the children welfare facilities and that drug addiction is linked to child maltreatment, particularly for children under the age of five years old. Parental substance abuse has also been established to be more common in neglect cases compared to other forms of abuse. Estimates of the number of parents in the children welfare organization who use drugs have varied between 40-80 percent. There is also a connection among substance abuse, child neglect, and parental age. For example, it has been established that most women who are engaged in children welfare and who engage in substance abuse treatment are younger as well as have many children as compared women who are never involved in child welfare system. Once addicted, these parents often find it hard in securing access to the required treatment, which reflects a nationwide trend because only about one-third of all those who needed substance abuse treatment have had access to it. Likewise, research has proved that child welfare-involved caregivers must often wait up to four months in order to enter into a treatment program- a lengthy period of time when a petition to terminate a parent’ rights may be filled once a child has spent fifteen months in a foster care (Leve, Fisher, & Chamberlain, 2009).
According to Ostler (2010), parental mental illness may also contribute to the permanent elimination of parental rights and responsibilities for a child. There is a large body of research that mainly focus on mothers, which show a high incidence of mental illness among parents who are implicated with the children’s welfare due to neglect. Among the general population, the issue of mental illness undoubtedly increases the risk of being investigated for child abuse. For instance, using data from Medicaid and child welfare datasets in the United States, it was established that mothers with serious mental illness were approximately three times expected to be involved with the children welfare, including having children put into foster care. Typical diagnosis for women who are involved in child welfare are major depression, schizophrenia related illness, and bipolar disorder. The consequences of mental disorders parents’ child welfare cases are significant. Moreover, parents’ severe mental illness is increasingly being used in order to justify the termination of their parental rights. In fact, almost 34 states in the United States allow the termination of parental rights due to a parent’s mental illness. Those seeking to justify such termination of parental rights because of a parent’s mental illness, argue that children in such homes are at increased risk for learning disabilities, negative peer involvement, and irregular attendance to schools.
Domestic violence has also been highly linked to children mistreatment. Social welfare studies has time and again revealed that over the course of their lifetimes, as many as one in every five women, are at risk of becoming involved in domestic violence. Research has shown that this risk may increase when a woman becomes pregnant. At the same time, research has established significant linkages among domestic violence and child mistreatment. It is projected that as many as forty percent of the children of battered mothers are also mistreated. Children residing in such families where there is domestic violence, often suffer a lot. With domestic violence prevalent in almost one-third of the families in the United States, domestic violence has been made a prominent statutory basis for parental termination in almost 19 states.
America has the highest incarceration rate among the developed nations with more than two million American imprisoned. Even as the vast majority of the detainees are males, there are a significant number of females behind bars, most of whom are mothers. Approximately 17 percent of the criminal offenders are women. To a greater extend, the life situations of both men and women at the time of their arrest mirror the circumstances that surround their families. Incarceration bears different as well as negative collateral outcomes on people and their families. The families of these prisoners suffer economic problems due to an arrest and imprisonment of a family member. Research show that single mothers who are imprisoned are at greater danger of having their children placed in foster care as well as having their parental rights terminated. However, single mothers who are imprisoned in short term basis may have their parental rights suspended until a later date when they are finally released. Moreover, in terms of incarceration, approximately 28 states unequivocally classify incarceration as a basis for statutory termination of parental rights (Massoglia & Warner, 2011).
In contrast to the termination of parental rights, there are other grounds in which a parent’s rights may be temporarily eliminated. A situation where the parents’ rights are temporary eliminated is referred to as the suspension of parental rights. When a child’s biological parents have died, have abandoned the child, have entered into a military duty, or have failed to sufficiently provide for the child due to health issues or other reasons such as involvement into drug use, a family court may have the power to suspend the parent’s rights and duties, and appoint a legal guardian to provide for the child.
Throughout the guardianship process, the biological parent’s duties as well as responsibilities are temporary suspended and the legal guardian, who is appointed by a family court, assumes many of the parental rights as well as responsibilities. As such, the guardian has the full responsibility for the child’s health, education, welfare, and safety. Unlike the permanent termination of parental rights where a parent may not be able to petition for his/her reinstatement of rights and responsibilities, guardianship in parental suspension cases may be cancelled when the biological parents of the child makes a legal petition to the court in order to terminate the guardianship of the child. Petition of parental reinstatements are also possible when a child is adopted, dies, marries, reaches a maturity age, or enters into military service. Moreover, unlike in the permanent termination of parental rights and responsibly, in suspended parental rights the court has the power to end the guardianship of a child upon findings that the guardianship is no longer needed (Swartz, O’Brien, & Lurigio, 2006).
In conclusion, the legal responsibilities that apparent has over his/her child may be classified into two major responsibilities, including to support the child through providing him or her with the necessities of life and supervising or controlling the child. The necessities of life for a child go beyond providing food, shelter, and clothing to include things such as medical care, safe environment, education, and legal help. Therefore, failure to provide a child with all these necessities may be considered neglect, which may result into the termination or suspension of parental rights.
Copps, H. C. (2002). Co-occurrence of Child Maltreatment and Domestic Violence: Examining Both Neglect and Child Physical Abuse. Child Maltreatment, 7, 4.)
Ostler, T. (2010). Assessing parenting risk within the context of severe and persistent mental illness: Validating an observational measure for families with child protective service involvement. Infant Mental Health Journal, 31, 5, 467-485.
Massoglia, M., & Warner, C. (2011). The consequences of incarceration: Challenges for scientifically informed and policy-relevant research. Criminology & Public Policy, 10, 3, 851-863.
Hudson, L., Almeida, C., Bentley, D., Brown, J., Harlin, D., & Norris, J. (2008). Concurrent Planning and beyond: Family-Centered Services for Children in Foster Care. Zero to Three, 28, 6, 47-53.
Leve, L. D., Fisher, P. A., & Chamberlain, P. (2009). Multidimensional Treatment Foster Care as a Preventive Intervention to Promote Resiliency Among Youth in the Child Welfare System. Journal of Personality, 77, 6, 1869-1902.
Keller, T. E., Salazar, A. M., & Courtney, M. E. (2010). Prevalence and timing of diagnosable mental health, alcohol, and substance use problems among older adolescents in the child welfare system. Children and Youth Services Review, 32, 4, 626-634.