Should marriage matter?: Evaluating the rights of legal absentee fathers

Fordham Law Review

Volumn 68, Issue 6, 2000, Pages 2299-2349

  Burns, Jennifer E ^a  

^a NONE

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EID: 0347936071     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (410)

1. Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting).
2. See Complaint at 9, para. 25, Daniel H. v. City of New York (S.D.N.Y. filed Mar. 5, 1996) (No. 96 Civ. 1605).
3. See id. at 9-10, paras. 26-27.
4. See id. at 10, para. 28.
5. See id. para. 32.
6. See id.
7. See id. at 11, paras. 33-34.
8. See id. at 10, para. 30.
9. See id. para. 32; id. at 14, para. 48.
10. See id. at 11, para. 36.
11. See id. at 14, para. 49.
12. See id. at 10, para. 29.
13. See id. at 13, para. 42.
14. See id. at 14, para. 47.
15. See id. para. 48.
16. In 1997, 75% of all child abuse perpetrators were parents. See National Center on Child Abuse and Neglect, U.S. Department of Health and Human Services, Child Maltreatment 1997: Reports from the States to the National Center on Child Abuse and Neglect 7-1 (1999) [hereinafter Child Maltreatment 1997].
17. Emergency circumstances have been defined as those in which the child is "immediately threatened with harm, for example, where there exists an 'immediate threat to the safety of the child' . . . or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence." Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991) (citations omitted) (quoting Sims v. State Dep't of Pub. Welfare, 438 F. Supp. 1179, 1192 (S.D. Tex. 1977)). The child need not be harmed in the presence of officials, see Chayo v. Kaladjian, 844 F. Supp. 163, 169 (S.D.N.Y. 1994), nor does the alleged abuser need to be present when the child is taken, see Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987).
18. While there may be situations in which the child is removed from the custodial father and the mother's notice rights are at issue, this Note focuses on fathers both because of the comparative frequency of their claims as opposed to absentee mothers' claims, and the constitutional analysis that is particular to the rights of fathers.
19. See Complaint, Jason Rudy C. v. City of New York (S.D.N.Y. filed Jan. 9, 1998) (No. 98 Civ. 0130); Daniel H. v. City of New York (S.D.N.Y. filed Mar. 5, 1996) (No. 96 Civ. 1605). The challenged statutes include sections 1035 and 1036 of the New York Family Court Act, and sections 384-b, 409-e, and 398-b(1)(c) of the New York Social Services Law. See N.Y. Fam. Ct. Act §§ 1035, 1036 (McKinney 1999); N.Y. Soc. Serv. Law §§ 384-b, 398-b(1)(c), 409-e (McKinney 1992 & Supp. 1999).
20. See N.Y. Fam. Ct. Act § 1017 (McKinney 1999).
21. See id. (requiring only that "an immediate investigation" to locate relatives be undertaken).
22. See Daniel H., No. 96 Civ. 1605, at 2, para. 2.
23. The State's authority to intervene in a family comes from two sources. See Developments in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1156, 1198 (1980). First, the State's police power allows it to prevent its citizens from harming one another and to promote the public welfare. See id. at 1198-99. Second, the State has the paternalistic power to protect those who cannot protect themselves. See id. at 1199.
24. See Rebeca Aizpuru, Note, Protecting the Unwed Father's Opportunity to Parent: A Survey of Paternity Registry Statutes, 18 Rev. Litig. 703, 715 (1999) (including, for example, the appearance of the father's name on the child's birth certificate).
25. See Leslie Joan Harris, Reconsidering the Criteria for Legal Fatherhood, 1996 Utah L. Rev. 461, 463.
26. Parental rights include the right to custody, the right to raise one's child, and the right to make decisions about children's lives. See, e.g., 4 California Family Law § 60.02(1)(b) (C. Markey ed., 1987) (noting that custody "embrace[s] the sum of parental rights," including the right to direct the child's activities, make decisions regarding her health and education, and tend to her moral and religious education).
27. See, e.g., Stanley v. Illinois, 405 U.S. 645, 658 (1972) (striking down a state statute that granted hearings on parental fitness only to married parents, divorced parents, and unmarried mothers, but denying a similar hearing to unwed fathers).
28. See Aizpuru, supra note 24, at 704; see also Mary L. Shanley, Unwed Fathers' Rights, Adoption, and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy, 95 Colum. L. Rev. 60, 67 (1995) (noting that the common law was "profoundly patriarchal" and absolved an unwed father of all custodial responsibilities).
29. See Tracy Cashman, Comment, When is a Biological Father Really a Dad?, 24 Pepp. L. Rev. 959, 962 (1997) (citing Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of Michael H. v. Gerald D., 65 Tul. L. Rev. 585, 588 (1991)).
30. See Tracy Cashman, Comment, When is a Biological Father Really a Dad?, 24 Pepp. L. Rev. 959, 962 (1997) (citing Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of Michael H. v. Gerald D., 65 Tul. L. Rev. 585, 588 (1991)).
31. See, e.g., Lehr v. Robertson, 463 U.S. 248, 262 (1983) (stating that the Constitution does not compel protecting the opportunity for a relationship a biological father possesses if he fails to "grasp[] that opportunity and accept[] some measure of responsibility for the child's future").
32. Status as a parent is: grounded in inexorable truths (e.g., the truths of biological process). Within a universe of status, the obligations and rights that define relationships flow automatically and inevitably from the fact of the relationship. Thus, for instance, parents are expected to love and provide for their children, not because they have agreed to do so, but simply because they are parents. Janet L. Dolgin, The Family in Transition from: Griswold to Eisenstadt and Beyond, 82 Geo. L.J. 1519, 1526 (1994). As such, status may "sanction[] significant inequalities" among the members of a family and between family members and third parties, but it can also "provid[e] for enduring relationships." Id. at 1571.
33. See, e.g., Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting) (referring to Stanley v. Illinois as a circumstance in which "the actual relationship between father and child may suffice to create in the unwed father parental interests comparable to those of the married father.").
34. See id. ("The validity of the father's parental claims must be gauged by other measures. By tradition, the primary measure has been the legitimate familial relationship he creates with the child by marriage with the mother. By definition, the issue [of the scope of a father's rights] can arise [before the Court] only when no such marriage has taken place.").
35. See, e.g., Stanley v. Illinois, 405 U.S. 645, 658 (1972) (striking down statute that favored legal parents wholesale over unwed fathers); see also infra notes 277-85, 291-94 and accompanying text (discussing the Court's decisions in Quilloin v. Walcott and Michael H. v. Gerald D.).
36. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 129 (1989) (finding that where a child born of an extramarital affair is born into an existing marital family, the "natural father's unique opportunity [interest in developing a relationship with the child] conflicts with the similarly unique opportunity [interest] of the husband of the marriage; and it is not unconstitutional for the State to give categorical preference to the latter").
37. See Harris, supra note 25, at 465. The emphasis has shifted toward basing rights and duties on biological relationship. See infra Part II.B.1.
38. See Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended in scattered sections of 42 U.S.C.).
39. See infra Part III.
40. Children can also be placed in the foster system voluntarily by their parent or parents. See infra note 63 and accompanying text.
41. Through permanency planning, the child welfare system aims to find safe, stable homes for children in which they can be placed for an extended period of time. See Kathleen A. Bailie, The Other "Neglected" Parties in Child Protective Proceedings: Parents in Poverty and the Role of the Lawyers Who Represent Them, 66 Fordham L. Rev. 2285, 2289 n.39 (1998).
42. See Harris, supra note 25, at 480.
43. See id. (discussing the relationship between the duties and rights of both fathers and mothers).
44. See Santosky v. Kramer, 455 U.S. 745, 771 (1982) (Rehnquist, J., dissenting).
45. See Katharine Cahn & Paul Johnson, Critical Issues in Permanency Planning: An Overview, in Children Can't Wait: Reducing Delays for Children in Foster Care 9 (Katharine Cahn & Paul Johnson eds., 1993).
46. See Mary B. Larner et al., Protecting Children from Abuse and Neglect: Analysis and Recommendations, The Future of the Children, Spring 1998, at 4, 4. This funding relationship becomes particularly important when federal law makes significant policy shifts with which the states must comply. See infra Part I.C.1.
47. See Larner, supra note 45, at 5.
48. The generic name of Child Protective Services will be used throughout this Note for consistency. Agencies can take various names for providing the same services; for example, the Administration for Children's Services governs state childcare proceedings in New York City.
49. See Cahn & Johnson, supra note 44, at 1-2.
50. Id. at 3.
51. Id.
52. See id. at 6.
53. See id. at 7.
54. See id.
55. See Larner, supra note 45, at 5. When handling child abuse and neglect cases, "the Constitution already requires courts to balance carefully the need to protect children with the strong obligation to protect family autonomy." Carolyn Wilkes Kaas, Breaking Up a Family or Putting it Back Together Again: Refining the Preference in Favor of the Parent in Third-Party Custody Cases, 37 Wm. & Mary L. Rev. 1045, 1087 (1996). A tension also exists between the fear of "violat[ing] a family's integrity before intervention is justified and the fear of . . . [waiting] until it may be too late to protect the child whose well-being is threatened." Joseph Goldstein et al., Before the Best Interests of the Child 133 (1979).
56. See Patricia A. Schene, Past, Present, and Future Roles of Child Protective Services, The Future of Children, Spring 1998, at 23, 24; see also Smith v. Organization of Foster Families for Equality and Reform ("OFFER"), 431 U.S. 816, 833 (1977) ("Foster care of children is a sensitive and emotion-laden subject, and foster-care programs consequently stir strong controversy.").
57. See Larner, supra note 45, at 5; Michael W. Weber, The Assessment of Child Abuse: A Primary Function of Child Protective Services, in The Battered Child 120, 120-21 (Mary Edna Helfer et al. eds., 5th ed. 1997).
58. See Schene, supra note 55, at 23; see also Paul D. Steinhauer, The Least Detrimental Alternative: A Systematic Guide to Case Planning and Decision Making for Children in Care 202 (1991) (discussing the dilemma of the family court in balancing the intrusion into family life against the potential for future harm).
59. Steinhauer, supra note 57, at 202.
60. See generally id. (noting the risks to children who are left in deteriorating family situations); Larner, supra note 45, at 5 (same).
61. Family Court Judge Susan R. Larabee has stated that "New York state's statute has been a model for other states and other countries." Susan R. Larabee, Representing the Government in Child Abuse and Neglect Proceeding, in Child Abuse and Neglect: Protecting the Child, Defending the Parent, Representing the State, at 59, 69 (PLI Litig. & Admin. Practice Course Handbook Series No. C4-4183, 1988), available in WESTLAW, 148 PLI/Crim. 59.
62. See Bailie, supra note 40, at 2298.
63. For example, where both natural parents have died and there are no relatives willing to assume custody or guardians appointed custody, an appropriate government agency takes the child into custody. See N.Y. Soc. Serv. Law § 384-b(4)(a) (McKinney 1992); id. § 384-b (McKinney Supp. 1999) (parents' abandonment).
64. A voluntary commitment occurs when a parent or guardian signs a written instrument entrusting the care of the child to an authorized agency. See N.Y. Fam. Ct. Act § 1021 (McKinney 1999). Parents may voluntarily commit custody of their child to the state for a number of reasons. They may be experiencing problems related to drug or alcohol addiction, financial difficulties, psychological problems, or other physical ailments. See Joseph R. Carrieri, Child Custody, Foster Care, and Adoptions 16 (1991) [hereinafter Carrieri, Child Custody]. The terms, duration, and conditions of the agreement may be determined and agreed to by the parties. See id.
65. See Joseph R. Carrieri, Social Worker's Legal Handbook, in Child Abuse, Neglect and the Foster Care System 1998: Effective Social Work and the Legal System; The Attorney's Role and Responsibilities 7, 78-79 (1998) [hereinafter Carrieri, Handbook].
66. See Joseph R. Carrieri, Social Worker's Legal Handbook, in Child Abuse, Neglect and the Foster Care System 1998: Effective Social Work and the Legal System; The Attorney's Role and Responsibilities 7, 78-79 (1998) [hereinafter Carrieri, Handbook].
67. Adoption is a legal proceeding in which an adult "acquires the rights and incurs the responsibilities of a parent" toward a minor child. See N.Y. Dom. Rel. Law § 110 (McKinney Supp. 1999).
68. See Carrieri, Handbook, supra note 64, at 78.
69. See Schene, supra note 55, at 31 fig.1. A child is found to be abused when the child's parent "inflicts, or allows to be inflicted, physical injury, or commits, or allows to be committed, a sex offense against the child." Carrieri, Child Custody, supra note 63, at 17. A court typically finds a child to be neglected if the child's parent "has failed to exercise a minimum degree of care." Id. at 17-18; see also N.Y. Soc. Serv. Law §§ 371(4-a)(i)(A)-(B), 412 (McKinney 1992 & Supp. 1999); N.Y. Fam. Ct. Act. § 1012 (McKinney 1999). In 1994, nearly 3 million reports of child maltreatment were made nationwide. See National Center on Child Abuse and Neglect, U.S. Department of Health and Human Services, Child Maltreatment 1994: Reports from the States to the National Center on Child Abuse and Neglect 2-1 (1996). That number remained the same in 1995. See National Center on Child Abuse and Neglect, U.S. Department of Health and Human Services, Child Maltreatment 1995: Reports from the States to the National Center on Child Abuse and Neglect 2-1 (1997).
70. For example, New York State's affirmative duty applies to, among others, health care workers, social workers, law enforcement officers, judicial officers, dentists, psychologists, day care workers, and education employees. See N.Y. Soc. Serv. Law § 413 (McKinney Supp. 1999). These individuals must report whenever they have "reasonable cause to suspect" that a child has been maltreated. Id.
71. In New York State, any individual can make a report to the abuse hotline, even if he does not have a statutory affirmative duty to do so. See Valmonte v. Bane, 18 F.3d 992, 995 (2d Cir. 1994).
72. See Larner, supra note 45, at 6.
73. See id. For example, in 1995, more than half of the reports in the United States came from professionals, such as teachers (15%), law enforcement personnel (13%), doctors (11%), and others. See id. One-fifth (19%) came from family members of the victims, and the remainder were from friends and neighbors (9%), other reporters (7%), and anonymous individuals (12%). See id. New York State maintains a telephone hotline with a toll-free number that is staffed full-time to receive complaints about abuse or neglect. See N.Y. Soc. Serv. Law § 422(2)(a) (McKinney 1992); Valmonte, 18 F.3d at 995.
74. See Colo. Rev. Stat. § 19-3-401(1)(a) (1997); D.C. Code Ann. § 16-2309(a)(3) (Michie 1997 & Lexis Supp. 2000); N.Y. Fam. Ct. Act § 1024(a) (McKinney 1999); S.C. Code Ann. § 20-7-610(A)(1) (Lawyers Co-op. 1985). An emergency situation exists when an authorized person: (i). . . has reasonable cause to believe that the child is in such circumstance or condition that his continuing in said place of residence or in the care and custody of the parent . . . presents an imminent danger to the child's life or health; and (ii) there is not enough time to apply for an order under section one thousandtwenty-two [of the Family Court Act]. N.Y. Fam. Ct. Act. § 1024(a)(i)-(ii) (McKinney 1999).
75. See Schene, supra note 55, at 31 fig.1.
76. See N.Y. Soc. Serv. Law § 424 (McKinney 1992); Schene, supra note 55, at 30-32.
77. See Schene, supra note 55, at 30.
78. See Larner, supra note 45, at 7. New York Social Services Law provides that the child protective service shall: commence or cause the appropriate society for the prevention of cruelty to children to commence, within twenty-four hours, an appropriate investigation which shall include an evaluation of the environment of the child named in the report and any other children in the same home and a determination of the . . . nature, extent and cause of any condition enumerated in such report . . . and, after seeing to the safety of the child or children, forthwith notify the subjects of the report . . . of the existence of the report and their respective rights . . . . N.Y. Soc. Serv. Law § 424(6) (McKinney 1992); see also Cal. Welfare & Inst. Code § 328 (West 1998 & Supp. 2000) (providing that a probation officer shall immediately commence an investigation to determine whether child welfare services should be offered to the family or whether court proceedings should be commenced); Colo. Rev. Stat. § 19-3-312(1) (1999) (providing that the court must immediately investigate reports of abuse to determine whether a child needs further protection and whether to authorize the filing of a petition); Vt. Stat. Ann. tit. 33, § 4903(1) (1991) (providing that the department of child welfare services shall "investigate all complaints of neglect, abuse, or abandonment of children").
79. See N.Y. Soc. Serv. Law § 424(7) (McKinney 1992); cf. Colo. Rev. Stat. § 19-3-501(1)(a) (1999) (providing the option that no further action be taken).
80. See Schene, supra note 55, at 31 fig.1. In New York, the local DSS agency must investigate the truth of alleged abuse charges and complete an investigation within 60 days. See N.Y. Soc. Serv. Law § 423(1) (McKinney 1992 & Supp. 1999); id. § 424(7) (McKinney 1992).
81. See Schene, supra note 55, at 31 fig.1. "Services" provided to a family aim to assist the family in remedying the difficult situation that led them to abuse the child. See Bailie, supra note 40, at 2299.
82. See Schene, supra note 55, at 31.
83. See N.Y. Fam. Ct. Act § 1015-a (McKinney 1999).
84. See id. These services are intended theoretically to be preventive and protective measures aimed at helping to improve the family situation. See Bailie, supra note 40, at 2299. Under federal law, such services include individual, group, and family counseling; substance abuse treatment services; mental health services; and assistance to address domestic violence. See 42 U.S.C. § 629a(a)(7)(B)(i)-(iv) (Supp. 1999).
85. See Cal. Welfare & Inst. Code § 361(c) (West 1998); D.C. Code Ann. § 16-2309 (1997); N.Y. Fam. Ct. Act. §§ 1021-29 (McKinney 1999); Utah Code Ann. § 78-3a-301 (Supp. 1996).
86. See N.Y. Fam. Ct. Act § 1044 (McKinney 1999) (defining fact-finding as a hearing to determine whether the child has been abused or neglected). In a petition for the commitment of the guardianship and custody of a child, the law requires clear and convincing evidence in support of the allegations. See N.Y. Fam. Ct. Act §§ 614(1)(a)-(d), 622 (McKinney 1999).
87. A dispositional hearing is held to determine what action should be taken in accordance with the best interests of the child. See N.Y. Fam. Ct. Act § 623 (McKinney 1999).
88. See Carrieri, Handbook, supra note 64, at 85-88.
89. See Colo. Rev. Stat. § 19-3-505 (1999); N.Y. Fam. Ct. Act § 1044 (McKinney 1999); Wis. Stat. Ann. § 48.31 (West 1997); Carrieri, Child Custody, supra note 63, at 86.
90. See Cal. Welfare & Inst. Code § 356 (West 1984); Colo. Rev. Stat. § 19-3-505(6); N.Y. Fam. Ct. Act § 1051(c) (McKinney 1999); Tenn. Code Ann. § 37-1-129(a)(1) (1996).
91. See Cal. Welfare & Inst. Code § 361.5(b)-(c) (West 1998); Colo. Rev. Stat. § 19-3-507; N.Y. Fam. Ct. Act. § 1045 (McKinney 1999); Tenn. Code Ann. § 37-1-129(c) (1996); Carrieri, Child Custody, supra note 63, at 86-88.
92. See Carrieri, Child Custody, supra note 63, at 88.
93. See Jill Duerr Berrick, When Children Cannot Remain Home: Foster Family Care and Kinship Care, The Future of Children, Spring 1998, at 72, 72-73. Relatives have no legal obligation to become a child's caregiver, but they often provide for their abused or neglected family members. See id.
94. See Jill Duerr Berrick, When Children Cannot Remain Home: Foster Family Care and Kinship Care, The Future of Children, Spring 1998, at 72, 72-73. Relatives have no legal obligation to become a child's caregiver, but they often provide for their abused or neglected family members. See id.
95. See Cal. Fam. Code § 7828(a)(1) (West 1994 & Supp. 2000); N.Y. Fam. Ct. Act. § 1055(b)(i) (McKinney 1999); Bailie, supra note 40, at 2301 & n.120. Under New York law, foster care is defined as: "care provided a child in a foster family free or boarding home, group home, agency boarding home, child care institution, health care facility or any combination thereof . . . ." N.Y. Soc. Serv. Law § 392(1)(a) (McKinney 1992). The State licenses foster parents. This license indicates that "their homes have been assessed for basic health and safety standards," and that they have received at least minimal training on how "to provide care and supervision for a child." Berrick, supra note 91, at 73.
96. See N.Y. Soc. Serv. Law § 409-e(1)-(2) (McKinney 1992 & Supp. 1999).
97. Reunification services vary among the states, but may include providing parents with the skills and knowledge necessary for child-raising in contemporary life. See Raymond C. O'Brien, An Analysis of Realistic Due Process Rights of Children Versus Parents, 26 Conn. L. Rev. 1209, 1239-40 (1994).
98. See Schene, supra note 55, at 31 fig.1.
99. See N.Y. Soc. Serv. Law § 384-b(1)(a)(ii)-(iii) (McKinney 1992).
100. See id. § 384-b(1)(b).
101. See Carrieri, Handbook, supra note 64, at 60-61.
102. See id. at 124-25.
103. See, e.g., N.Y. Fam. Ct. Act § 614(1)(d) (McKinney 1999) (stating that a TPR petition may be filed if the parent "has failed . . . substantially and continuously or repeatedly to maintain contact with or plan for the future of the child").
104. See N.Y. Fam. Ct. Act § 634.
105. See Carrieri, Handbook, supra note 64, at 391.
106. See id. at 391-93.
107. See, e.g., N.Y. Soc. Serv. Law § 1055 (McKinney 1999) (specifying no particular means by which the diligent search should be executed).
108. See N.Y. Soc. Serv. Law § 384-b(4)(b) (McKinney 1992). Other grounds for termination include that the child is permanently neglected, that the parents severely or repeatedly abused their child, and the child has been in state care for the year prior to the proceeding. See id. §§ 384-b(4)(d)-(e).
109. Id. § 384-b(5)(a); see also Fla. Stat. Ann. § 63.032(14) (1997) ("'Abandoned' means a situation in which the parent . . . while being able, makes no provision for the child's support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations.").
110. See N.Y. Soc. Serv. Law § 384-b(5)(a).
111. See id. § 384-b(5)(b) ("The subjective intent of the parent, whether expressed or otherwise, unsupported by evidence of the foregoing parental acts manifesting such intent, shall not preclude a determination that such a parent has abandoned his or her child.").
112. See, e.g., In re Jennifer S., 333 N.Y.S.2d 79, 83 (Sur. Ct. 1972) (finding a mother's "naked statement" of desire to have her child with her insufficient where no effort to contact the child had been made during the five years of her life); Carrieri, Child Custody, supra note 63, at 180-81.
113. See Carrieri, Handbook, supra note 64, at 127.
114. See N.Y. Soc. Serv. Law § 384-b(4)(b) (McKinney 1992); see also 750 Ill. Comp. Stat. 50/1 (D)(n) (West 1999) (failure to communicate for one year); Kan Stat. Ann. § 59-2136(d) (1994) (father's consent to stepparent adoption is unnecessary if he "has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption"); cf. Cal. Fam. Code § 7822(a) (West 1994 & Supp. 2000) (presumption of abandonment where parent fails to communicate for six months).
115. Diligent efforts are reasonable attempts by an agency to "assist, develop and encourage a meaningful relationship between the parent and child . . . ." N.Y. Soc. Serv. Law § 384-b(7)(f). Such efforts may include: (1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family; (2) making suitable arrangements for the parents to visit the child . . . ; (3) provision of services and other assistance to the parents . . . so that problems preventing the discharge of the child from care may be resolved or ameliorated; [and] (4) informing the parents at appropriate intervals of the child's progress, development, and health . . . . Id. § 384-b(7)(f)(1)-(4).
116. See Carrieri, Handbook, supra note 64, at 379-81.
117. See id. at 381.
118. See In re Gregory B., 542 N.E.2d 1052, 1057 (N.Y. 1989).
119. See In re Jasmine T., 557 N.Y.S.2d 669, 670-71 (App. Div. 1990).
120. See In re Stephen B., 303 N.Y.S.2d 438, 442 (Fam. Ct. 1969); Carrieri, Child Custody, supra note 63, at 182.
121. See In re Catholic Child Care Soc'y of the Diocese of Brooklyn, 492 N.Y.S.2d 831, 833 (App. Div. 1985); Carrieri, Child Custody, supra note 63, at 181.
122. See Carrieri, Handbook, supra note 64, at 384.
123. See, e.g., In re Starr L.B., 497 N.Y.S.2d 597, 600-01 (Fam. Ct. 1985) (finding that a single phone call where the father was able to call daily did not break the abandonment period).
124. See, e.g., In re Michael David K., 433 N.Y.S.2d 212, 213 (App. Div. 1980) (finding that such insubstantial contacts did not constitute a "modicum of interest").
125. See, e.g., In re Amanda, 602 N.Y.S.2d 461, 462 (App. Div. 1993) (finding that the mere sending of cards, when other communication was possible, was insufficient to defeat a finding of abandonment).
126. See Fla. Stat. Ann. § 63.032(14) (West Supp. 1997) ("marginal efforts" at communication insufficient); Kan. Stat. Ann. § 59-2136(d) (1994) ("In determining whether a father's consent [to a stepparent adoption] is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions."); Nev. Rev. Stat. § 128.105(2)(f) (1998) ("token efforts" insufficient); Utah Code Ann. § 78-3a-407(6) (Supp. 1996) (same); see also In re Adoption of B.O., 927 P.2d 202, 209 (Utah Ct. App. 1996) (affirming termination of father's rights based on finding that he made only "token" contacts with daughter).
127. See, e.g., In re Adoption of Baby Boy N., 874 P.2d 680, 687-90 (Kan. Ct. App. 1994) (affirming the Kansas statute's provision premising termination of parental rights on failure to support the child's mother during the six months prior to the child's birth (Kan. Stat. Ann. § 59-2136(h)(4) (1993)); accord In re Baby Boy G., No. 2970889, 1999 WL 64951, at *4 (Ala. Civ. App. Feb. 12, 1999) (determining provision of pre-birth support to the unborn child upon failure to perform parental duties); In re Appeal of H.R., 581 A.2d 1141, 1162 (D.C. 1990) (finding that when a court evaluates a father's claimed assertion of his opportunity interest, the court may focus on the extent of the father's involvement from the time that he learns of the pregnancy); W.T.J. v. E.W.R., 721 So. 2d 723, 725 (Fla. 1998) (same); In re Adoption of Baby E.A.W., 658 So. 2d 961, 964 (Fla. 1995) (finding abandonment where father verbally and emotionally abused the pregnant mother, failed to attend doctor's appointment, forced her to move out of their apartment, and failed to provide her with any support during the pregnancy); In re Adoption No. A91-71A, 640 A.2d 1085, 1097-98 (Md. 1994) (finding that a man who deserts the expectant mother shows a lack of concern for the future well-being of the child); Whitney v. Pinney, 956 P.2d 785, 788 (Nev. 1998) (concluding that a court can properly look at a father's pre-birth actions as one factor in its abandonment inquiry); Baby Girl K. ex rel. L.K. v. B.B., 335 N.W.2d 846, 852 (Wis. 1983) (determining that father's assault of pregnant mother, attempts to convince expectant mother to smuggle marijuana, and failure to provide financial or emotional support to the pregnant mother supported finding of abandonment). In 1994, the drafters of the Uniform Adoption Act proposed to codify this approach to finding "abandonment." See Unif. Adoption Act § 3-504(c)(1) (1994). For an analysis of the possible impact of such a change, see generally Gerald W. Huston, Note, Born to Lose: The Illinois "Baby Richard" Case - How Examining His Father's Pre-Birth Conduct Might Have Led to a Different Ending for Richard, 16 N. Ill. U.L. Rev. 543 (1996).
128. For example, Illinois provides that a parent may be found "unfit" if he fails "to demonstrate a reasonable degree of interest, concern or responsibility as to the welfare of a new-born child during the first 30 days after its birth." 750 Ill. Comp. Stat. 50/1(D)(1) (West 1996).
129. The Nevada Supreme Court recently affirmed a trial court's order terminating the parental rights of an unwed father based upon the ground of "abandonment," where the father had provided no financial or emotional support to the mother during her pregnancy and informed her that he would support her decision to surrender the child for adoption. See Whitney v. Pinney, 956 P.2d 785, 787-89 (Nev. 1998).
130. See Nancy Garland, Wanted: Parents, More Maine Children up for Adoption; Media Step up Assistance to Agencies, Bangor Daily News, Nov. 6, 1999, at B1.
131. See, e.g., Pamela Mercer, Toddlers Seriously Ill After Swallowing Pills: Two Boys in Foster Care Got Hold of Medication Used for Hypertension and Hyperactivity, Orlando Sentinel, Nov. 6, 1999, at 1 (reporting on two boys hospitalized after consuming medication while 61-year-old foster mother slept).
132. See National Commission on Children, Beyond Rhetoric: A New American Agenda for Children and Families 287-88 (1991) [hereinafter Beyond Rhetoric]; O'Brien, supra note 94, at 1242. In 1997, 41 states reported their fatality rates for foster care: 23 states had no fatalities; 4 states suffered 1 fatality; 2 states reported 3 fatalities; and 2 other states had 2 fatalities. See Child Maltreatment 1997, supra note 16, at 6-1.
133. See, e.g., Roger Miller, State's Parenting Skills Taken to Task, Pantagraph, Oct. 28, 1999, at A4 ("The State . . . sometimes [was] a worse parent than the parent we took the children from because in most cases those parents loved their children.").
134. In 1984, the National Center on Child Abuse and Neglect began to require those states participating in its grant program to treat reports of abuse and neglect for children in substitute care similar to all other reports, and not just as violations of licensing standards. See James A. Rosenthal et al., A Descriptive Study of Abuse and Neglect in Out-of-Home-Placement, 15 Child Abuse & Neglect 249, 250 (1991).
135. See John Poertner et al., How Safe are Out-of-Home Placements?, 21 Children & Youth Servs. Rev. 549, 549 (1999).
136. See id. at 551.
137. See id. at 554-55.
138. See id. at 552.
139. See id. at 553.
140. See id.
141. See id. at 555. Kinship care shared an equivalent rate in 1995 of 2.6% reabuse. See id.
142. See id. at 554.
143. See id.
144. See id.
145. See id. at 557.
146. See id.
147. See id. at 558. The risk of physical harm in kinship care was 54.3%, and in foster care 52.1%. See id.
148. See id. The risk of sexual abuse in kinship care was 20.3%, and in foster care 36.9%. See id.
149. As recently reported, there are approximately 3000 children in foster care in the District of Columbia. See Michael H. Cottman & Sari Horwitz, Williams to Appoint Official to Work Out Agencies' Problems, Wash. Post, Nov. 3, 1999, at B7. Maine has approximately 3000 children in its foster care system, 700 of whom are available for adoption. See Garland, supra note 127. Since 1985, the foster care population of the United States has nearly doubled. See Richard Wexler, Shattered Families: Rise in Adoptions Comes at a Cost, Charleston Gazette, Nov. 2, 1999, at 5A. In Lancaster County Pennsylvania, 570 children are in foster care and 2500 suffer from abuse and neglect. See Ryan Robinson, Judge: "Family Issues are Dominating Our Courts," Lancaster New Era, Oct. 25, 1999, at B1.
150. As recently reported, there are approximately 3000 children in foster care in the District of Columbia. See Michael H. Cottman & Sari Horwitz, Williams to Appoint Official to Work Out Agencies' Problems, Wash. Post, Nov. 3, 1999, at B7. Maine has approximately 3000 children in its foster care system, 700 of whom are available for adoption. See Garland, supra note 127. Since 1985, the foster care population of the United States has nearly doubled. See Richard Wexler, Shattered Families: Rise in Adoptions Comes at a Cost, Charleston Gazette, Nov. 2, 1999, at 5A. In Lancaster County Pennsylvania, 570 children are in foster care and 2500 suffer from abuse and neglect. See Ryan Robinson, Judge: "Family Issues are Dominating Our Courts," Lancaster New Era, Oct. 25, 1999, at B1.
151. As recently reported, there are approximately 3000 children in foster care in the District of Columbia. See Michael H. Cottman & Sari Horwitz, Williams to Appoint Official to Work Out Agencies' Problems, Wash. Post, Nov. 3, 1999, at B7. Maine has approximately 3000 children in its foster care system, 700 of whom are available for adoption. See Garland, supra note 127. Since 1985, the foster care population of the United States has nearly doubled. See Richard Wexler, Shattered Families: Rise in Adoptions Comes at a Cost, Charleston Gazette, Nov. 2, 1999, at 5A. In Lancaster County Pennsylvania, 570 children are in foster care and 2500 suffer from abuse and neglect. See Ryan Robinson, Judge: "Family Issues are Dominating Our Courts," Lancaster New Era, Oct. 25, 1999, at B1.
152. See Wexler, supra note 146 (noting that the anticipated increase in adoptions has not occurred).
153. See id.
154. See Pub. L. No. 105-89, 111 Stat. 211 (codified as amended in scattered sections of 42 U.S.C.).
155. See Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, § 1, 94 Stat. 500 (codified at 42 U.S.C. § 1305 (1994)).
156. See Alice C. Shotton, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later, 26 Cal. W. L. Rev. 223, 255 (1989-1990).
157. See Wexler, supra note 146.
158. See infra Part III.D.
159. See, e.g., David Herring, The Michigan Agency Attorney Project, in Cahn & Johnson, supra note 44, at 29 (stating that the risk of substantial developmental harm from an extended unstable placement was the motivation behind the reasonable efforts requirement to prevent or shorten such placements).
160. See Steinhauer, supra note 57, at 222 (arguing that legal permanence is just terminology and that permanence can only really be determined by the child's own sense of the situation). "[R]emoving a child from a foster home that is experienced as permanent by both the child and the foster parents in order to return her home or place her on adoption elsewhere may do violence to that child's best chance for permanence in a misguided attempt to secure it." Id.
161. Id.
162. See Cahn & Johnson, supra note 44, at 1.
163. See id.
164. Herring, supra note 155, at 15.
165. See id.; see also N.Y. Soc. Serv. Law § 384-b(1)(b) (McKinney 1992) ("[U]nnecessary stays [in foster care] may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens."). An additional problem results from separating a child from his biological father. A large number of children in the United States do not live with their biological fathers. See Joseph P. Shapiro, Honor Thy children, U.S. News & World Report, Feb. 27, 1995, at 39 (reporting that 38% of all children do not live with their biological fathers, an increase from 17.5% in 1960). Social literature has highlighted the problems associated with the absence of a father figure in a child's life. In fact, the absence of a father can be a better predictor than poverty of a child's turn to crime or teenage pregnancy. See id. This problem is particularly acute in the African American community. See John M. O'Donnell, Involvement of African American Fathers in Kinship Foster Care Services, 44 Soc. Work 428, 429 (1999). These problems of paternal separation may influence placement choices, as the father is viewed as an important influence in the child's life.
166. See generally Schene, supra note 55 (documenting the legislative, social, and political response to child maltreatment in the United States).
167. Federal laws enabling child protection services began in 1935 with the Child Welfare Services Program. See Social Security Act, Title IV-B, 42 U.S.C. §§ 620-29 (1994 & Supp. III 1997). The statute provides grants to states to support preventive and protective services to vulnerable children and their families. Beginning in 1961, foster care payments were made under the Aid to Dependent Children program. See Social Security Act, Title IV-A, 42 U.S.C. §§ 601-19 (Supp. III 1997). This program provided federal funds to help states make maintenance payments for children who were eligible for cash assistance and who lived in foster care. Initially, most of these funds went to foster care payments. See id. In 1980, this program was transferred to a new Title IV-E of the SSA. See Social Security Act, Title IV-E, 42 U.S.C. §§ 670-79 (1994 & Supp. III 1997). In 1974, Congress passed the Child Abuse Prevention and Treatment Act ("CAPTA") to provide limited funding to states to prevent, identify, and treat child abuse and neglect. See Pub. L. No. 93-247, 88 Stat. 4 (1974) (codified at 42 U.S.C. §§ 5101-5106h, 5116, 5118a-e (1994 & Supp. III 1997)). CAPTA created the National Center on Child Abuse and Neglect, developed standards for receiving and responding to reports of child maltreatment, and established a clearinghouse on the prevention and treatment of abuse and neglect. Changes in 1997 reinforced the Act's emphasis on child safety. See Schene, supra note 55, at 28.
168. See Judith Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Neglect and Abuse Cases, 63 Geo. L.J. 887, 889 (1975).
169. See Shotton, supra note 151, at 224.
170. See Martin Guggenheim, The Effects of Recent Trends to Accelerate the Termination of Parental Rights of Children in Foster Care - An Empirical Analysis in Two States, 29 Fam. L.Q. 121, 122 (1995) [hereinafter Guggenheim, Children in Foster Care].
171. See Martin Guggenheim, The Effects of Recent Trends to Accelerate the Termination of Parental Rights of Children in Foster Care - An Empirical Analysis in Two States, 29 Fam. L.Q. 121, 122 (1995) [hereinafter Guggenheim, Children in Foster Care].
172. See id. at 122-25 (noting the difficulties that children faced in the foster care system in the 1970s and discussing federal legislation passed in response).
173. See Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, § 1, 194 Stat. 500, codified in 42 U.S.C. § 1305 (1994).
174. See S. Rep. No. 96-336, at 10 (1979), reprinted in 1980 U.S.C.C.A.N. 1448, 1459.
175. See Martin Guggenheim, The Foster Care Dilemma and What To Do About It: Is the Problem that Too Many Children are Not Being Adopted Out of Foster Care or That Too Many Children are Entering Foster Care?, 2 U. Pa. J. Const. L. 141, 142 (1999) [hereinafter Guggenheim, Foster Care Dilemma].
176. See Martin Guggenheim, The Foster Care Dilemma and What To Do About It: Is the Problem that Too Many Children are Not Being Adopted Out of Foster Care or That Too Many Children are Entering Foster Care?, 2 U. Pa. J. Const. L. 141, 142 (1999) [hereinafter Guggenheim, Foster Care Dilemma].
177. See Cristine H. Kim, Note, Putting Reason Back into the Reasonable Efforts Requirement in Child Abuse and Neglect Cases, 1999 U. Ill. L. Rev. 287, 288.
178. See id.
179. Shotton, supra note 151, at 223.
180. See Thomas P. McDonald et al., Assessing the Long-Term Effects of Foster Care: A Research Synthesis 13 (1996).
181. See Kim, supra note 170, at 289.
182. See Bailie, supra note 40, at 2291 & n.51.
183. See Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C.). ASFA re-authorizes and increases funding for the Family Preservation and Support program, while changing its name to "Promoting Safe and Stable Families." The support services included under this program are counseling, substance abuse treatment services, mental health services, domestic violence services, temporary child care, and transportation for services. See 42 U.S.C. § 629a(a)(7)(B) (Supp. III 1997).
184. Ernestine Steward Gray, The Adoption and Safe Families Act of 1997: Confronting an American Tragedy, 46 La. B.J. 477, 478 (1999).
185. See Kim, supra note 170, at 288.
186. 42 U.S.C. § 671(a)(15)(A) (Supp. III 1997) (emphasis added); Kim, supra note 170, at 309.
187. See Gray, supra note 177, at 478.
188. See 42 U.S.C. § 671(a)(15)(B) (Supp. III 1997).
189. See id. § 671(a)(15)(B)(ii).
190. See id. § 671(a)(15)(D)(i).
191. See id.
192. See id. § 671(a)(15)(D)(ii)(I)-(IV).
193. See id. § 671(a)(15)(D)(iii).
194. See supra notes 87-94 and accompanying text for a description of the dispositional hearing.
195. See 42 U.S.C. § 675(5)(C) (Supp. III 1997).
196. See id. Under ASFA, the date that a child "enters foster care" is either when a court finds that the child has been abused or neglected, or 60 days after the child is removed from the home, whichever is earlier. See id. § 675(5)(F).
197. See id. § 671(a)(15)(E)(i).
198. See id. § 675(5)(C).
199. See id. § 675(5)(E).
200. See id.
201. See H.R. Rep. 105-77, at 7 (1997), reprinted in 1997 U.S.C.C.A.N. 2739, 2739-40; Kim, supra note 170, at 309-10; see also Garland, supra note 127 ("The push is on at the federal and state levels to get adoptable children into permanent homes more quickly.").
202. See 42 U.S.C. § 673b(d) (Supp. III 1997). The additional $2000 is based on the number of special needs adoptions. See id. § 673b(d)(1)(B).
203. See id. § 673b(g)(3)(A)-(B).
204. New York State enacted its legislation in February 1999. See 1999 N.Y. Laws 7 (McKinney 1999).
205. See 42 U.S.C. § 674(c) (1994 & Supp. III 1997).
206. See Assembly Passes Federal Adoption and Safe Families Act, Assembly Action Highlights (Feb. 12, 1999) 〈http://assembly.state.ny.us/Press/Weekly/ 199990212.html〉.
207. See S. 5117-A, A. 962-A, 222d Legis. Reg. Sess. (N.Y. 1999). The Assembly passed its version on June 21, 1999. The Senate did not vote on the bill in the last legislative session. It has been automatically reintroduced in the 2000 session.
208. See Bill Memo in Support of S. 5117-A, An Act to Amend the Family Court Act and Social Services Law, In relation to Facilitating Permanency Planning for Children in Foster Care, 222d Legis. Sess. (N.Y. 1999) [hereinafter S. 5117-A Bill Memo].
209. See supra notes 19-20 and accompanying text.
210. N.Y. Fam. Ct. Act § 1017 (McKinney 1999).
211. See S. 5117-A § 1, 222d Legis. Reg. Sess. (N.Y. 1999) (regarding N.Y. Fam. Ct. Act § 1017).
212. Id. The non-respondent parent is typically the noncustodial parent, as the respondent is the parent or legal guardian responsible for the child's care who is alleged to have abused or neglected that child. See N.Y. Fam. Ct. Act § 1012(a) (McKinney 1999).
213. See S. 5117-A Bill Memo, supra note 201.
214. See S. 5117-A § 3, 222d Legis. Reg. Sess. (N.Y. 1999) (regarding N.Y. Soc. Serv. Law § 383-c); id. § 4 (regarding N.Y. Soc. Serv. Law § 384).
215. S. 5117 § 3, 222d Legis. Reg. Sess. (N.Y. 1999).
216. See id. This lack of punishment weakens the force of the requirement and its intended effect.
217. Id. § 6 (amending N.Y. Soc. Serv. Law § 392) (emphasis added).
218. U.S. Const. amend. XIV, § 1.
219. See Board of Regents v. Roth, 408 U.S. 564, 569-72 (1972).
220. See id. at 571-72.
221. See id. at 572.
222. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 24 (1981) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).
223. Id.
224. Id. at 24-25.
225. See id.
226. 424 U.S. 319 (1976).
227. See id. at 335.
228. Id.
229. See infra notes 230-32 and accompanying text.
230. See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
231. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (striking down a sterilization law that disproportionately affected minorities as violative of the equal protection clause, because marriage and procreation are fundamental rights of man).
232. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., concurring) (acknowledging that the Ninth Amendment recognizes the right of privacy in marriage as fundamental even though it is not specifically mentioned in the Constitution).
233. See In re C.A.T., Jr., No. 01-A-01-9510-JV-00474, 1996 Tenn. App. LEXIS 291, at *6 (Tenn. Ct. App. May 17, 1996).
234. Meyer, 262 U.S. at 399.
235. Skinner, 316 U.S. at 541.
236. May v. Anderson, 345 U.S. 528, 533 (1953); see also Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (acknowledging the Court's consistent recognition that the parent-child relationship is constitutionally protected); Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977) (noting that the liberty interest in family privacy has its contours in "intrinsic human rights"); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion) (acknowledging the Court's many decisions recognizing freedom of personal choice in matters of family life as a liberty protected by the due process clause); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (same); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (same).
237. 321 U.S. 158 (1944).
238. Id. at 166.
239. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).
240. See Board of Regents v. Roth, 408 U.S. 564, 569-70 & n.7 (1972) (holding that plaintiff must first demonstrate he has been denied liberty or property in the constitutional sense).
241. Id. at 569-70.
242. See Stanley, 405 U.S. at 650.
243. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); accord Roth, 408 U.S. at 573.
244. See Roth, 408 U.S. at 570 n.7. The Court has rarely found such circumstances to be present. See, e.g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 598 (1950) (stating that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before final administrative order becomes effective); Phillips v. Commissioner, 283 U.S. 589, 596-97 (1931) (stating that where only property rights are involved, postponement of judicial inquiry is not a denial of due process if the opportunity given for the ultimate judicial determination of the liability is adequate); Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921) (discussing Congress's right during war to immediately seize property thought to belong to the enemy).
245. See Mathews v. Eldridge, 424 U.S. 319, 331 (1976).
246. Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
247. Id. at 269.
248. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961); see also Goldberg, 397 U.S. at 262-63 (addressing the procedural protections required to terminate welfare payments).
249. Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 855 (1977).
250. Gibson v. Merced County Dep't of Human Resources, 799 F.2d 582, 589 (9th Cir. 1986) (holding that the procedures afforded foster parents to contest the removal of an adopted foster child from their home were adequate to protect whatever liberty interests they may have had in their relationship with the child).
251. See Santosky v. Kramer, 455 U.S. 745, 755 (1982) (citing Vitek v. Jones, 445 U.S. 480, 491 (1980)).
252. See Conn. Gen. Stat. Ann. § 46b-56b (West 1995) (stating that in custody disputes between parents and non-parents, "there shall be a presumption that it is in the best interest of the child to be in the custody of the parent"); see also Mich. Comp. Laws Ann. § 722.25 (West 1993) (stating that in a dispute between the parent and an agency or third person, "it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence").
253. See O'Brien, supra note 94, at 1215. In recent years, numerous state cases have continued to adhere to this proposition. See, e.g., P.G. v. W.M.T., 590 So. 2d 329, 330 (Ala. Civ. App. 1991) (applying presumption that in a custody determination between a parent and a third party, the natural parent will be presumed to serve the best interests of the child absent a showing of the natural parent's unfitness); Appeal of H.R., 581 A.2d 1141, 1143 (D.C. 1990) (finding the proper standard for evaluating an unwed father's rights to be the best-interests-of-the-child standard that incorporates a preference for a fit unwed father who has grasped his opportunity interest); Rose v. Potts, 577 N.E.2d 811, 813 (Ill. App. Ct. 1991) (upholding a presumption for the natural parent, but qualifying it as not absolute and as only a factor in the best-interests-of-the-child analysis); Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. Ct. App. 1990) (denying intervention application of grandparents in custody dispute by applying the two doctrines governing custody disputes between parents and nonparents: first, the natural parent must be shown unfit; second, the best-interests-of-the-child standard governs); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990) (finding the appropriate standard in parent versus nonparent custody battles to be presumption toward the natural parent unless placement with that parent would not be in the child's best interest and such placement would significantly impair the child's physical health or emotional development (citing Tex. Fam. Code Ann. § 14.01(b) (West 1990)) (emphasis added); Mason v. Moon, 385 S.E.2d 242, 244 (Va. Ct. App. 1989) (requiring clear and convincing evidence either that the parents are unfit, voluntarily relinquished the child, abandoned the child, or special facts and circumstances "constitute extraordinary reasons to take the child from the parents" before overcoming the presumption favoring a natural parent); Bancroft v. Bancroft, 578 A.2d 114, 117 (Vt. 1990) (reiterating that a parent has a fundamental right to custody and that the presumption that the best interests of the child are served by granting custody to a natural parent may be overcome only in extraordinary circumstances). But see In re Guardianship of Williams, 869 P.2d 661, 664-65 (Kan. 1994) (overruling the use of the best-interests-of-the-child standard in a custody dispute between a natural parent and grandparent).
254. See In re Adoption of Baby Boy N., 874 P.2d 680, 688 (Kan. Ct. App. 1994).
255. 405 U.S. 645 (1972).
256. See id. at 656-58.
257. Id. at 656-57.
258. See id. at 658.
259. Id.
260. For a discussion of the procedure for terminating parental rights, see supra notes 97-101 and accompanying text.
261. See In re C.A.T., Jr., No. 01-A-01-9510-JV-00474, 1996 Tenn. App. LEXIS 291, at *6 (Tenn. Ct. App. May 17, 1996).
262. See Stanley, 405 U.S. at 649 (holding that to deny an unwed father a hearing when his children are taken because the mother of the children dies, while extending such a hearing to all other parents whose custody is challenged, denies him equal protection under the Fourteenth Amendment).
263. See Lassiter v. Department of Soc. Servs., 452 U.S. 18, 31-32 (1981).
264. See Santosky v. Kramer, 455 U.S. 745, 747-48 (1982) (striking down statutes with lower evidentiary standards).
265. N.Y. Fam. Ct. Act. § 1024(b)(ii)-(iii) (McKinney 1999).
266. See id. § 1024(b)(iii).
267. See id. § 1055(b)(iii).
268. See id.
269. See id.
270. See Cashman, supra note 29, at 960.
271. See Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting) ("The mother carries and bears the child, and in this sense her parental relationship is clear. The validity of the father's parental claims must be gauged by other measures.").
272. See Michael H. v. Gerald D., 491 U.S. 110 (1989); Lehr v. Robertson, 463 U.S. 248 (1983); Caban v. Mohammed, 441 U.S. 380 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978); Stanley v. Illinois, 405 U.S. 645 (1972).
273. 405 U.S. 645 (1972).
274. See id. at 646, 649.
275. See id. at 650-51.
276. See id. at 658.
277. Aizpuru, supra note 24, at 709.
278. See Kaas, supra note 54, at 1074.
279. 441 U.S. 380 (1979).
280. See id. at 394.
281. See id. at 389.
282. See id.
283. See Aizpuru, supra note 24, at 711.
284. 434 U.S. 246 (1978).
285. See id. at 255.
286. See id. at 251, 256.
287. See id. at 246-47.
288. See id. at 247.
289. See id. at 255.
290. See id.
291. Id. at 252.
292. See Aizpuru, supra note 24, at 709.
293. 463 U.S. 248 (1983).
294. See id. at 267-68.
295. See id. at 262.
296. Id.
297. This sentiment was expressed in Quilloin. See supra notes 277-84 and accompanying text.
298. 491 U.S. 110 (1989).
299. See id. at 113-17.
300. See id. at 122-23.
301. See id. at 123-24.
302. Compare Lehr v. Robertson, 463 U.S. 248, 265 (1983) (finding that a
303. See Lehr, 463 U.S. at 262 (noting that father did not "grasp[] that opportunity" to develop a relationship with his child because he waited until after the adoption petition was filed before attempting to assert his parental rights); Caban, 441 U.S. at 389, 393 (holding not only that a father had demonstrated a commitment to a relationship with his children, but also that a substantial relationship existed between the father and his children because he lived with the unwed biological mother and the children for several years); Cashman, supra note 29, at 967.
304. Caban, 441 U.S. at 397 (Stewart, J., dissenting).
305. State v. Hernandez, 259 N.W.2d 272, 274 (Neb. 1977) (finding the parents' lack of interest in their children for six years constituted abandonment and was a ground for terminating their parental rights).
306. See infra Part III.
307. See Aizpuru, supra note 24, at 705.
308. See id. Twenty-six states thus far have created paternity registries. See id. at n.2
309. See id.
310. See id.
311. See id.
312. See id. at 716.
313. See id.
314. See id. at 718.
315. See id. at 719.
316. See N.Y. Dom. Rel. Law § 111-a(6) (McKinney 1997).
317. See Aizpuru, supra note 24, at 705.
318. See id. at 723-24.
319. See id. at 726.
320. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 129 (1989) (finding that where a child born of an extramarital affair is born into an existing marital family, the "natural father's unique opportunity [interest in a relationship with the child] conflicts with the similarly unique opportunity [interest] of the husband of the marriage; and it is not unconstitutional for the State to give categorical preference to the latter").
321. 431 U.S. 816 (1977).
322. See N.Y. Soc. Serv. Law §§ 383(2), 400 (McKinney 1992). Under the statutes, a foster parent who had cared for a child for at least 12 months was permitted to intervene in custody proceedings. See id. § 383(3). A foster parent who believes a social services official's removal of a child from the foster home was improper also has the right to appeal. See id. § 400(2).
323. See OFFER, 431 U.S. at 820.
324. See id. at 839.
325. See id. at 844.
326. See id. at 845.
327. See id. The Fifth, Sixth, and Seventh Circuits utilized this distinction in ruling that foster parents do not have a constitutionally protected liberty interest. See, e.g., Kyees v. County Dep't of Pub. Welfare, 600 F.2d 693, 699 (7th Cir. 1979) (per curiam) (concluding that the liberty interest question left open by the Supreme Court in OFFER should be decided against establishing a liberty interest in the foster family relationship); Drummond v. Fulton County Dep't of Family and Children's Servs., 563 F.2d 1200, 1207 (5th Cir. 1977) (en banc) (finding that true liberty rights do not have their origin in state law as does the foster family relationship, but in "notions of intrinsic human rights"); Sherrard v. Owens, 484 F. Supp. 728, 741 (W.D. Mich. 1980) (rejecting the liberty interest of a foster parent because of the contractual nature of the relationship under which a liberty interest could not truly develop), aff'd, 644 F.2d 542, 543 (6th Cir.) (per curiam). State courts likewise have agreed that a strong emotional bond may develop in a foster care situation, but have declined to characterize it as a constitutionally protected liberty interest. See, e.g., In re Jaivuan Martin, Nos. 17432, 17461, 17464, 1999 Ohio App. LEXIS 3999, at *6-*7 (Ohio Ct. App. Aug. 27, 1999) (holding that a foster care relationship is not constitutionally protected). Similarly, Ohio limits the intervention power of grandparents in adoption proceedings to those cases where they themselves are seeking to adopt. See id. at *7-*8.
328. OFFER, 431 U.S. at 845.
329. See id. at 846.
330. Id.
331. Id. at 846-47.
332. See id. at 847. In his concurring opinion, Justice Stewart asserted that he would have held that these interests are not the type protected by the Due Process Clause. See id. at 858 (Stewart, J., concurring).
333. See Rodriguez v. McLoughlin, 49 F. Supp. 2d 186, 195 (S.D.N.Y. 1999).
334. See id. at 195-96.
335. See supra Part II.B.1 (discussing the relationship-based constitutional analysis of the rights of unwed fathers).
336. See Harley v. City of New York, 36 F. Supp. 2d 136, 140 (E.D.N.Y. 1999), aff'd No. 99-7314, 99-7628, 2000 U.S. App. LEXIS 4482, at *2 (2d Cir. Mar. 21, 2000).
337. See Carrieri, Handbook, supra note 64, at 73-74.
338. For example, in New Hampshire, a foster parent can file a petition to terminate parental rights when they have had custody of the child for 24 months, or if the agency fails to file the petition after the foster parent requests it. See id. at 75.
339. See id.
340. See Ohio Rev. Code Ann. § 5103.16.1 (West 1996).
341. See id.
342. These states include Alabama, Arizona, and Idaho. See Carrieri, Handbook, supra note 64, at 74.
343. See supra Part II.B.1.
344. See Adoption and Safe Families Act of 1997, 42 U.S.C. § 1305 (Supp. 1997); supra Part I.C.1.
345. See Kaas, supra note 54, at 1071 n.113.
346. See Francis Barry McCarthy, The Confused Constitutional Status and Meaning of Parental Rights, 22 Ga. L. Rev. 975, 985 (1988).
347. Id.
348. Kaas, supra note 54, at 1071 n.113.
349. See supra Part III.A.
350. Hillary R. Stein, Note, Massachusetts' "Lizzie's Law": Protection for Children or Violation of Parents' Constitutional Rights?, 78 B.U. L. Rev. 1547, 1558-59 (1998).
351. A putative father is the child's biological father who was not married to the child's natural mother at the time of the child's birth. See Black's Law Dictionary 623 (7th ed. 1999).
352. See Quilloin v. Walcott, 434 U.S. 246, 256 (1978).
353. Id.
354. See id.
355. Id.
356. See McCarthy, supra note 339, at 999.
357. See id.
358. See Board of Regents v. Roth, 408 U.S. 564, 572 (1972).
359. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 24 (1981) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).
360. See Santosky v. Kramer, 455 U.S. 745, 762 (1982) ("In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent."); see also Smith v. OFFER, 431 U.S. 816, 835 n.36 (1977) (noting the criticism that many foster care reviews are only perfunctory because of the heavy caseloads judges carry, and that in applying vague standards such as the best-interests-of-the-child standard, many judges find it difficult not to rest decisions on subjective values).
361. Martin Guggenheim, The Best Interests of the Child: Much Ado About Nothing?, in Child, Parent, and State: Law and Policy Reader 27, 27 (S. Randall Humm et al. eds., 1994).
362. See Lassiter, 452 U.S. at 24-25.
363. See Cahn & Johnson, supra note 44, at 8-9.
364. See id. at 9.
365. See id.
366. Id.
367. Linda Lee Reimer Stevenson, Fair Play or a Stacked Deck?: In Search of a Proper Standard of Proof in Juvenile Dependency Hearings, 26 Pepp. L. Rev. 613, 627 (1999).
368. Id. at 630.
369. See Cahn & Johnson, supra note 44.
370. See id. at 2.
371. Id. at 11 (emphasis added).
372. See O'Brien, supra note 94, at 1251-52.
373. See Editorial, Children First: Bill Would Ease State's Adoption Process, Worcester Telegram & Gazette, Mar. 1, 1999, at A6 ("For far too long our laws have provided an excessive tilt in favor of biological parents who fail at everything but a blood test.").
374. Stanley v. Illinois, 405 U.S. 645, 656 (1972).
375. Id. at 656-57.
376. Id. at 657 n.9.
377. See Aizpuru, supra note 24, at 722.
378. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982).
379. O'Brien, supra note 94, at 1220.
380. Id. at 126-27.
381. See N.Y. Soc. Serv. Law § 384-b(1)(b) (McKinney 1992).
382. See Steinhauer, supra note 57, at 206.
383. See id.
384. See id. at 209.
385. See id. The same rationale applies to reliance on the appeal process to correct errors. Speedy decisions improperly made leave the child in limbo as the appeal process drags on. See id. at 211.
386. 424 U.S. 319 (1976).
387. Id. at 335.
388. See, e.g., Stanley v. Illinois, 405 U.S. 645, 646-47 (1972) (finding that though unmarried, the father had lived with the children and their mother until her death and acted as the children's father for eighteen years, and was therefore entitled to be heard on their placement).
389. See id. at 658 (striking down a presumption of unfitness rooted in administrative convenience as violating the Due Process clause); supra notes 266-70 and accompanying text.
390. See Aizpuru, supra note 24, at 709 ("Stanley was perhaps easily decided because a traditional family unit had existed for eighteen years and because Stanley had custody of the children and had nurtured them throughout. . . . [T]he Court did not indicate whether unwed fathers' rights exist in every case, or whether they stem from the existence of a traditional family unit, a long-term custodial relationship with the children, or both.").
391. See supra Part II.B.1.
392. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
393. See id.
394. Id. at 348.
395. Id.
396. See supra notes 176-99.
397. ASFA "virtually repeals the requirement that states make 'reasonable efforts' to keep families together before taking away children and putting them in foster care." Wexler, supra note 146.
398. See supra note 197 and accompanying text.
399. See An Act to Amend the Social Services Law, the Family Court Act, and the Domestic Relations Law, ch. 7, 1999 Sess. Laws of N.Y. (Consol. 1999).
400. See supra Part I.C.2.
401. See. S. 5117-A Bill Memo, supra note 203 ("Efforts should be made promptly to locate the child's noncustodial parent, if any, not simply as a potential custodial resource, but also to ascertain any addresses that will be necessary for provision of notice of termination of parental rights proceedings in the event that preservation of the family unit proves not to be feasible."); supra Part I.C.2.
402. The results of the search are to be maintained in the Uniform Case Record. See S. 5117-A, 222d Legis Reg. Sess. (N.Y. 1999), amending N.Y. Soc. Serv. Law § 384-a(1). Such information would be used for notification at the TPR stage.
403. See S. 5117-A Bill Memo, supra note 203.
404. See Harris, supra note 25, at 474.
405. See id.
406. See id.
407. See id. at 480.
408. See id.
409. See id. at 485.
410. See, e.g., Stanley v. Illinois, 405 U.S. 645, 658 (1972) (striking down a presumption of unfitness rooted in administrative convenience as violating the due process clause).