Excerpted From: Breanna Madison, Whose Child Are You? Protecting Black Children and Families Predisposed to the Harms of the Family Regulation System, 67 Howard Law Journal 155 (2023-2024) (143 Footnotes) (Full Document Requested)

BreannaMadisonPreserving the “traditional” structure of the nuclear family has long been embraced by the Supreme Court because familial constructions reflect values that positively contribute to American society. Marriage and familial relationships that emerge from procreation are implied fundamental rights protected by the Constitution. More specifically, the Court has asserted, “the right of the individual... to marry, establish a home and bring up children... and generally to enjoy those privileges has long been recognized at common law as essential to the orderly pursuit of happiness by free men.” The relationship between a parent and child is such an intimate one that many aspects of parenting are protected under the right to privacy principle under the Fourteenth Amendment. Although parents have the broad ability to raise their children as they see fit, their rights are not infinite. The Court places certain limitations on parental rights in the best interest of the child by asserting parental rights are not absolute and “the family itself is not beyond regulation in the public interest.” Although these limitations are set in place to ensure children are adequately taken care of under parental supervision, the United States child welfare system places a racialized caveat on the general recognition of parental rights by heightening surveillance of low-income Black communities, which in turn results in the forced separation of those families.

In 1980, Abby Gail Lassiter, a Black mother of five, had her eight-month-old infant, William, taken away from her by social services after a social worker determined that her infant's malnourished state was a result of Lassiter's neglectful parenting. Lassiter was unable to appear at her parental termination hearing because she was incarcerated. As a result, she was unable to obtain effective counsel, and the trial court proceeded to terminate her parental rights of her infant son, asserting she “willfully failed to maintain concern or responsibility for the welfare of the minor.” When Lassiter appealed the decision, arguing her indigent status required the trial court to appoint her effective counsel, the Court determined that Lassiter's inability to appear at her hearings (due to what the Court perceived as indifference on Lassiter's part) was not a sufficient reason for appointed counsel. The Court also suggested that trial courts rely on the three-factor test developed in Mathews v. Eldridge, which would allow judges to determine on a case-by-case basis whether an indigent parent should be appointed counsel. When the plaintiff in Mathews had his social security benefits taken away, he argued administrative procedures concerning disability benefits required an evidentiary hearing. The Court in Mathews created a three-factor test to determine whether an administrative procedure adhered to the constitutional guarantee of due process: “(1) the private interests at stake, (2) the government's interest in the matter, and (3) the risk that the procedures used will lead to an erroneous decision.”

The Court in Lassiter applied the Mathews test to conclude that Lassiter's private interest did not outweigh the State's interest in the safety of her child and overall interest in efficiency within the adjudicative process in trial court hearings. The holding of Lassiter, which asserts indigent parents are not constitutionally entitled to counsel in termination of parental rights hearings, raises serious conflicts with the implied fundamental right to have a family by placing legal obstacles in the way of poor parents of color. The Lassiter opinion “completely reject[ed] the idea that the loss of parental rights might be equal to or greater than the loss of one's personal liberty in the criminal context.”

The right to counsel is generally afforded in criminal proceedings but not civil ones. In fact, the right to counsel in civil cases varies by state and depends on the type of civil case. The logic is that, unlike civil proceedings, criminal proceedings can potentially result in a serious deprivation of life and liberty in the form of carceral and/or capital punishment. However, forty-five states and D.C. recognize parents' statutory right to counsel in parental termination hearings and require appointment at termination rights hearings. Family separation resulting from terminated parental rights is arguably as serious as criminal proceedings. Separating children from their parents through termination of parental rights deprives parents and their children of their liberty as (1) parents' implied fundamental right to family is revoked and (2) children placed under the direct supervision of child services through group homes or foster care are subjected to scrutiny that mirrors carceral punishment, so much so that they are more than two and a half more times likely to be entrapped in the criminal legal system.

Lassiter also illustrates a need to investigate protecting the implied fundamental right by centering the role of the child in the family unit. If there is an implied fundamental right to parent one's own child, reciprocally, children should have the implied fundamental right to be parented by their parents. Children's rights are often considered in tandem with the adults in their lives. American jurisprudence must allow for some form of children's rights separate from their parents and provide more robust protection for children, especially those children disproportionately subjected to the harms of the child welfare system. Lassiter's ruling deprives children of their constitutional rights by disregarding their implied fundamental right to be parented, and as a result, Black children predisposed to the family regulation system face novel consequences. Considering the child welfare system's discriminatory targeting of low-income Black families, Black children at risk of being separated from their parents due to termination of parental rights face invidious discrimination in a variety of forms, including targeted punishment by teachers and other school personnel, heightened surveillance, and encounters with law enforcement. As a result, childhood must be considered a suspect class to provide Black children a safeguard against the harms of family separation by the State.

Part I of this note presents a historical background to provide relevant explanations of the racial and class disparities found within child welfare that disproportionately separate low-income Black families. Part II examines the implied fundamental right to parent under the Fourteenth Amendment and the Court's imbalanced evaluation of those rights based on the race of parents making procedural due process claims. Part III critiques the United States' lack of recognition of children's rights and autonomy by raising questions as to what sort of rights children have in relation to their parents as well as separate from them. It also provides solutions to correct the errors of Lassiter and overall issues with the United States' handling of child neglect cases in two ways: (1) asserting that there is an implied fundamental right to be parented to heighten the level of scrutiny in parental rights cases and (2) recognizing children as a suspect classification to address the invidious discrimination that occurs in child neglect procedures.

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Although Lassiter has had much negative treatment since 1981, the Supreme Court's assertion and reasoning for indigent parents not having a constitutional right to counsel for parental termination hearing has created a legacy of bad precedent for the treatment of indigent, Black parents and children who have encountered the child welfare system. By minimizing the impact of the fundamental rights lost with the termination of parental rights, Lassiter implicitly suggests Black parents and children are less deserving of substantial consideration of their familial rights. Since the exploitative construction of the United States, the government has played a direct role in the forceful separation of Black families. Chattel slavery blockaded Black parents from raising their own children and thus placed the lives of Black children at their master's will. The objectification of enslavedBlack mothers and their children subsequently led to the creation of prejudiced caricatures of Black motherhood and childhood, which the State has utilized as a litmus test to determine what is considered unfit parenting. The historical context of slavery demonstrates how Black people are systemically denied the right to family--arguably one of the most essential implied fundamental rights--and this can be seen through the hypersurveillance of Black families via the child welfare system.

This racial inequity can be redressed by using constitutional law as a venue to carefully focus on the rights of Black children through the assertion of an implied fundamental right to be parented by one's biological parents and distinguishing childhood as a suspect classification. These two resolutions can prevent Black children from entering the child welfare system by alleviating racial biases found in the surveillance tentacles of the State and overall adjudicative processes. During the trial court judge's questioning of whether her infant child should stay under her parental supervision, Abby Gail Lassiter poignantly stated, “[c]hildren know they family.... They know they people, they know they family and that child knows us anywhere.” Children are thoughtful, curious, growing human beings who are well aware of their surroundings and relation to the people in their lives. Amplifying their voices through an implied fundamental right to be parented and the use of suspect classification have the ability to prioritize the needs of Black children predisposed to the family regulation system and, more importantly, ensure that Black children are safe and empowered.

Breanna Madison, Howard Law Journal and Class of 2024.