The Legal Fiction of Permanency

The Legal Fiction of Permanency

Every day on the fourth floor of the Genesee County Circuit Court, judges – elected by the people of Michigan – issue orders permanently terminating the rights of parents to their children.  Upon the issuance of such an order, families are destroyed.  Children no longer have a right to see their parents.  Their birth certificates are changed to remove their parents’ names.  Their uncles and aunts no longer have a legal relation to them.  In fact, even their siblings become legal strangers.  Their family from birth disappears. 

But today is a different day.  Running down the corridor is Shirley Jenkins*, a thirty-eight year old woman, formerly the legal mother of four boys.  Fifteen years ago, a judge terminated her rights to her boys because she was using drugs.  The judge entered an order declaring her permanently unfit to care for her children.  Never again should she be a mother to her children.  Relatives quickly adopted the children. 

Then circumstances changed, as they so often do.  In the years after her rights were terminated, Ms. Jenkins overcame her addiction.  She remained in close contact with her children, talking to them on the phone and caring for them on holidays.  She got a stable job.  In fact, at the request of her relatives who had adopted her children, Ms. Jenkins* resumed caring for her boys, even though she had no legal rights to them.  Her children flourished in her home.  Jason – now 17 years old – was on the honor roll, played basketball for his school team, and had recently won a citizenship award.  He desperately wanted to stay with his mother.

But Ms. Jenkins need to reclaim her legal status as Jason’s mother.  Without it, Jason could not remain in her public housing.  Section 8 regulations prohibited adults from caring for unrelated children.  As a result, Jason was on the verge of being homeless.

            So on this day, Ms. Jenkins stood in court begging the judge to transform her back into Jason’s mother.  Jason wanted it.  His relatives supported it.  And Ms. Jenkins was ready.  Only one problem stood in their way – the law.  Michigan, like most states, doesn’t allow parents to reinstate their rights to their children.  Instead, under the guise of permanence, once a parent’s rights are terminated, that decision is final.  Irrevocable.  Irreversible.  This finality exists regardless of whether the parent has fixed their problems.  Or whether a child wants to return home.  Or whether the family caring for the child might not want to care for him. Or whether the child ever found a “permanent” home.

            Thus, unable to reinstate Ms. Jenkins’ status as a mother, her lawyers – my students in the University of Michigan’s Child Advocacy Law Clinic – invented a novel route for Ms. Jenkins.  Rather than resuming her role as Jason’s mother, Ms. Jenkins would ask to become his legal guardian, a status that any stranger can apply for.  Despite being wary of this unusual argument, the judge carefully considered it.  She asked questions as to why she should return a child to someone who a court had previously determined to be permanently unfit.  She interviewed the child.  She reviewed prior court records.  And after expressing considerable reservations, she reluctantly granted the request. Ms. Jenkins – after being a legal stranger to Jason for 15 years – left the courtroom with rights over him.  And Jason left with the relief that he could continue living with his mother, and that he would have a place to sleep.

            On my ride back to Ann Arbor, I struggled to process what had just occurred.  Why did the law require my students to create a novel legal theory to allow a child to live with his birth mother, an arrangement everyone agreed was best for the child?  Why is our child welfare policy rooted in a legal fiction of permanency and finality, when the reality is that parents, children and families change?  And why is our approach to child welfare centered on destroying relationships, rather than preserving them?  How many children – like Jason – are we harming through this punitive approach?

            The United States destroys more families than any other country in the world.  While our Supreme Court has recognized that a parent’s right to care for her child is one of the oldest and most fundamental rights recognized by our Constitution, our federal child welfare policy is centered on the destruction of families.  Once a child enters foster care, federal law places strict time frames of how much time a court can give a parent to reunify with their child.  If that time elapses, the law prioritizes terminating that parent’s rights so that the child may be freed for adoption.  In fact, states are given financial incentives to make that happen.  The more adoptions they process, the more federal funds they receive.  Other options can only be pursued after the child welfare agency rules out destroying the family.    

            But what are the hidden costs created by this sprint to termination?  Are we unnecessarily depriving children of important relationships with their parents? Are we orphaning children for the hopes of something that might never be achieved?  Even when a child is adopted, are we assuming a legal fiction of “permanency” when the changing nature of families is far more complicated and nuanced?  Do we even know that adoptions create permanent homes for children?  And in taking these steps, are we inflicting great pain on children that will remain with them forever?

*Names have been changed to protect the privacy of the family.