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The Pathway to and Consequences of Foster Parent Intervention in Dependency Cases
Get PDFOver the last 50 years, federal child welfare legislation has wrestled with how to reconcile the competing goals of the child welfare system: child protection, family preservation, and permanency. The United States foster care system has evolved alongside transformations in private adoptions. As the prospects for private adoption have dwindled, the pendulum has shifted toward prioritizing child protection. Youth in foster care have suddenly become the private adoption alternative. Most recently, some state courts have granted foster parents standing to intervene in termination of parental rights proceedings. In those cases, foster parents are permitted to battle with natural parents for their children—with the court’s permanent placement decision coming down to a “best interests” determination. Natural parents face patently unfair odds. The child welfare system is pitted against them from the point of removal.
This Note examines the historical and federal legislative context that made it possible for nonrelative foster parents to assert claims for adoption over the objection of natural parents whose parental rights have not been terminated. It considers the constitutional, case, and statutory law that intervening foster parents use to support their argument that intervention is warranted based on a psychological parent-child relationship. This Note rejects that argument— finding that foster parents’ reliance on these legal bases is ill-founded. This Note argues that permitting foster parents to intervene in termination of parental rights proceedings encroaches on the fundamental liberties of natural parents as articulated by the Supreme Court in Smith v. Organization of Foster Families for Equality and Reform and Santosky v. Kramer. Some states recognize the inherent disparity between natural parents and foster parents and warn against comparative assessments of foster parents’ and natural parents’ fitness. Others embrace those comparative assessments, with the justification that they promote “the best interest of the child.” Many states fall somewhere in between.
A “speedy path to permanency” with nonrelative foster parents should not be pursued when family preservation via reunification is possible. Foster parent intervention in termination of parental rights proceedings is contrary to Supreme Court jurisprudence and any rehabilitative or restorative purpose the child welfare system may have. We are in a critical moment: the threats to natural parents’ rights in dependency cases are more palpable than ever. The protections of Smith and Santosky need to be reinforced. Accordingly, this Note proposes that states amend their statutory schemes to prohibit or severely limit foster parent intervention in dependency cases unless parental rights have already been terminated. This Note recommends new federal legislation that removes the incentives for foster-adoption over reunification, and instead reallocates resources toward supporting reunification, and preventing removal in the first place
The IVF Exception: Strengthening Free Exercise Challenges to Abortion Bans
Get PDFThe fallout of the Dobbs v. Jackson Women’s Health Organization decision has included two seemingly distinct but critically related dynamics. First, religiously motivated plaintiffs are filing lawsuits challenging abortion bans on free exercise grounds. These lawsuits argue, in accordance with current free exercise doctrine, that a state’s compelling interest in protecting “fetal life” is undermined by secular exceptions to abortion bans. Second, state lawmakers have been forced to confirm that their state abortion bans do not apply to in vitro fertilization (IVF), a fertility treatment that regularly requires the discarding of embryos. This confluence of factors raises a critical question for religiously motivated litigants seeking to challenge abortion bans on free exercise grounds: can IVF be treated as a “secular exception” that puts pressure on states to grant religious exemptions to permit abortion?
This Article advances a novel argument: litigants can advance a stronger free exercise challenge to abortion bans by explicitly pointing out the discrepancy between how state law treats abortion and the discarding of embryos through IVF—referred to here as the “IVF exception.” In light of a high-profile February 2024 IVF decision in Alabama and pending religious freedom challenges to abortion bans in Indiana and South Carolina, this Article provides a timely and novel strategy for practitioners. The Indiana Court of Appeals considered the “IVF exception” in an April 2024 ruling and a January 2025 provider lawsuit raised the issue, too, but little academic scholarship comments on the topic. This Article provides a critical contribution to free exercise scholarship as the lawsuits challenging abortion bans on religious freedom grounds move through state courts across the country