Losing Parental Rights to COVID-19?

It’s called “the death penalty of the family courts.” The termination of parental rights (TPR) is the most extreme measure that can be inflicted on a family, and it is supposed to be reserved for only those instances where a parent is proven to be abusive or negligent and just won’t (or repeatedly can’t) change.

Yet, thanks to a restrictive provision of the Adoption and Safe Families Act, or ASFA, the threat of termination is looming against parents who are getting their lives in order.

The aim of ASFA when it was adopted in 1997 was to prevent children from languishing in foster care or group homes, while parents who were unwilling to change bounced from treatment to treatment and program to program. So it includes a time-limit provision: if a child has spent at least 15 of the last 22 months in state custody, a TPR can be filed based on that fact alone.

The idea was to take children who bounced in and out of foster care in time with their parents’ relapses and free them to be adopted into a stable and permanent home. It was a good and noble idea.

But in the days of COVID-19, that’s not all the “15 of 22” provision applies to. 

In these days of quarantines and other extreme measures, even parents who have gotten their acts together are not getting their families back. (And some families who should never have been separated in the first place are facing the same problem!)

The challenges are serious enough that Jerry Milner and David Kelly, both with the Children’s Bureau at the US Department of Health and Human Services, wrote an article last week to highlight and correct them.

With the rise of the novel coronavirus, Milner and Kelly warn, some families will be separated longer as services and scheduled visits are suspended. In some cases, the suspension will be warranted due to the presence of the virus in either the birth home or the foster home setting. But in many other cases, no such threat will be known to exist—yet services will be suspended anyway.

“We cannot allow our shortcomings to be held against families,” they warn.

These shortcomings make the 15/22 provision of ASFA especially concerning. In many cases, families were on track to be reunited this spring. But with quarantines and lockdowns, and with many courthouses closed until further notice, some of those cases will cross the 15/22 guideline for no other reason than the virus.

In light of this, Milner and Kelly warn, “We must be mindful of what is fair and just for parents in these situations. The law provides a tool for circumstances like these, compelling reasons not to file to terminate parental rights. The agency can demonstrate that compelling reasons exist not to file to terminate parental rights, even when the 15/22 month mark has been reached . . .”

In short, if the family was progressing fine, and the deadline hit only due to the virus, that is compelling reason not to terminate those rights.

We couldn’t agree more.

In fact, we are talking with coalition partners and looking for ways to bring a bill to Congress that would suspend the 15/22 rule for as long as lockdowns exist. It would have to be nuanced, because there also exist cases where children are languishing and need a “forever home.”

We want to protect families from unnecessary separation and trauma, while still taking care of the children who need help.

But by no means should a family lose one another forever simply because their court date was pushed back, and their visitation suspended, over this virus outbreak.

It’s a problem that has become so prominent in California that several organizations there have launched a petition urging that visitations with noncustodial parents be reinstated. That’s because it appears that, in their state, all forms of supervised visitation have been suspended.

“Every day that we do not maintain connections between children in care and their parents and siblings is a source of trauma,” Milner and Kelly wrote. States and counties across the country (including California) need to take creative steps to keep these families in touch with one another.

In the new language of our times, family—even imperfect family—is “essential.” So we must do all we can to protect it.

Thank you for standing with ParentalRights.org as we take up the new challenges to parental rights that are spawned in our present reality. Together we can stand tall and weather the storm with our families intact!


Michael Ramey
Executive Director