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http://uclalawreview.org/pdf/56-4-1.pdf

James G. Dwyer, Family law professor, William and Mary

Abstract

State parentage laws, dictating who a newborn child’s first legal parents will be, have been the subject of constitutional challenges in several U.S. Supreme Court and many lower court decisions. All of those decisions, however, have focused on constitutional rights of adults (especially unwed biological fathers) who wish to become, or to avoid becoming, legal parents. Neither courts nor legal scholars have considered whether the children have any constitutional rights that constrain legislatures and courts in deciding which adults will be their legal parents. If a state enacted a parentage law that said, for example, that any child born to a birth mother who already had two children would be placed in a parent-child relationship at birth with applicants for adoption rather than with the birth mother, would that infringe on any constitutional right of the child? Or would the birth mother be the only person with standing to challenge the law? Such a law would be purely hypothetical in the U.S. (though not far from reality in some other parts of the world). But the actual current parentage laws in the United States, which confer legal parent status in almost all instances on biological parents, with no regard for fitness, also have a seriously adverse affect on a subset of children—specifically, children whose birth parents are manifestly unfit to raise children, as evidenced by serious child maltreatment histories, criminal records, substance abuse, mental illness, and/or imprisonment. This Article is the first to consider whether states violate a constitutional right of some children when their parentage laws consign the children to legal relationships with, and into the custody of, adults whom the state knows to be unfit. It identifies opportunities for children’s advocates to advance constitutional challenges to state parentage laws as applied to newborn offspring of adults unfit to parent, and it presents a robust legal theory to underwrite such challenges.

Constitutional Birthright

A significant percentage of children are born to birth parents who are unfit to raise children—evidenced by histories of serious child abuse, violent felonies, mental illness, and/or chronic substance abuse—and who are highly unlikely to become fit within a reasonable period after their offspring’s birth.

Congress has, in the past dozen years, pushed states to be more proactive in protecting these babies from maltreatment by conditioning certain federal grants on states making various changes to their child protection laws. In particular, Congress has pushed states to terminate parental rights immediately, without first undertaking extensive rehabilitation efforts, in the worst cases of birth parent unfitness, so that the babies can enter good adoptive homes. However, state legislatures have not enacted all the statutory provisions necessary to accomplish this aim, and the state institutions charged with administering child protection laws—namely, child protection agencies and juvenile courts—are highly resistant to terminating parental rights before children incur serious maltreatment and/or prolonged foster care stays. In addition, following the Supreme Court’s decision in Deshaney v. Winnebago County Department of Social Services,4 which rejected on state action grounds a constitutional tort suit against a negligent child protection agency, there is no constitutional lever to force child protection agencies to act more aggressively, pursuant to child maltreatment laws, to protect newborns at high risk of maltreatment. In short, the problem of protecting babies born to grossly unfit parents appears intractable.

What legal advocates for children and legal scholars have overlooked, however, is the potential for attacking the problem further upstream, by advancing a constitutional challenge not to child protection laws or agency inaction, but to parentage statutes. Enactment and enforcement of state statutes conferring legal parent status on biological parents without regard to fitness, thereby forcing a substantial number of newborn babies to be in intimate associations with people the state knows to be unfit to parent, clearly constitutes state action and is the root cause of great harm to these children. Newborn babies must have a constitutional right against state legislatures placing them into legal family relationships with adults whom the state knows (by virtue of state child abuse and criminal registries, reports of fetal drug exposure, and prison records) to be dangerous to them.

In fact, much legal scholarship and judicial decision making has been devoted to the constitutionality of parentage laws. But almost all of it has focused on the constitutional rights of adults: either adults who want to be legal parents but are denied the opportunity, or adults who do not want to be legal parents yet have that status thrust upon them.5 What little consideration there has been of children’s constitutional rights in connection with parentage has been limited to older children who seek but are denied legal protection for an already established and healthy social parent-child relationship that they have with an adult who is not a legal parent.6 There has been no consideration of whether newborn children have any constitutional rights in connection with this legal action that largely determines the fundamental quality of their entire lives, including a right to avoid a legal parent-child relationship that is very bad for them, leaving them free to enter into a legal relationship with adults who would be good caregivers. This Article is the first to do so.

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