Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, April 25, 2006

Case Law Development: Agency Actions that Make Parent-Child Bonding Impossible Make Termination of Parental Rights Unconstitutional

The Illinois Court of Appeals reversed a trial court's termination of parental rights in a case in which mother's 10-month-old son and her older daughters had been removed for neglect.  The girls were placed with grandparents but the son was placed in a foster home.  Soon thereafter, mother was convicted of drug violations and incarcerated for two years.  After nine-months of incarceration, the court held a hearing and determined she was unfit.  During mother's incarceration, Mother was not allowed visitation with her children.  She was finally allowed telephone contact 16 months into her incarceration and later was allowed in-person visitation with daughters, but not her son. After her release from prison, and on the basis of an evaluation by a psychologist regarding the trauma of resuming visitation with her son, visitation was restricted to twice-monthly meetings in the social services offices with the foster mother present, and mother was not be be introduced as his mother but as a relative named "Jenny."

At a hearing regarding termination, mother was able to reverse the court's finding of unfitness regarding her daughters, with whom she had regular visitation, but the trial court found that the best interests of son were to terminate mother's rights as she had not bonded with her son and he was bonded with the foster family.  The court of appeals noted that the trial court was correct in focusing on the best interest of the child analysis at this point in the termination process since "once a finding of unfitness has been made, all considerations must yield to the best interest of the child."  The court's task at that point is to "assess the relative degree to which the child has bonded to his foster parents and his biological parent, taking into consideration the natural harm to the relationship caused by the parent's derelictions. ... However, it seems that any harm to the parent's relationship with the child must be assessed absent artificial or coercive intervention of others into the bonding process. Such an assessment could not be made in this case, and there has, therefore, been a fundamental injustice to respondent."

The court concluded that mother's constitutional rights would be violated if her parental rights were terminated given the agency's prior failure to promote visitation, much less reunification, and its deception of the son regarding his mother's identity. "The [termination] statute nowhere suggests or condones decisions of child welfare agencies, enforced by the courts, prior to the best interest hearing that allow a parent to believe that she is progressing toward reunification while ensuring that she will fail the best interest test. When the actions make the best interest hearing a futile gesture there has been a violation of due process tainting the constitutionality of the termination of respondent's parental rights."

In re O.S., 2006 Ill. App. LEXIS 333 (April 17, 2006)
Opinion on the web (last visited April 25, 2006 bgf)

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