Saturday, November 1, 2014
Gupta-Kagan: "In Re Sanders and the Resurrection of Stanley v. Illinois, California Law Review Circuit"
Josh Gupta-Kagan has posted In Re Sanders and the Resurrection of Stanley v. Illinois, California Law Review Circuit (2014 Forthcoming) on SSRN. Here is the abstract:
In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers -- an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases -- the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child into foster care over the other parent's objections -- even when that parent (usually the father) has seized his opportunity interest in the child and is thus entitled to the due process protections ordered in Stanley. Cases around the country adopting this doctrine ignored Stanley -- many did not cite it at all and others noted it but offered no substantive discussion.
This article argues that this trend may be changing. The Michigan Supreme Court held earlier this year that the one parent doctrine is unconstitutional, explaining at length, and with heavy reliance on Stanley, that the state must prove its case against parents before taking their children. This decision -- In re Sanders -- hopefully portends a welcome resurrection of Stanley v. Illinois in the foster care context. Such a resurrection would impose a core due process protection in an important body of cases. It would reinforce the policy -- also articulated in Stanley -- that due process protections are essential to determine whether a child's interest in protection of maltreatment or remaining with her family trump. And it would attack the gender stereotypes and other unhelpful heuristics that too often lead to poor decisions in child welfare cases.