Terminating Parental Rights: How Much Does a Child's Voice Matter?

Ideally, courts take away an individual’s parenting rights only when there are very good reasons. How often does it happen? In a 2019 article, the authors conclude that: “First, according to the 2016 estimate, 1 in 100 U.S. children will experience the termination of parental rights by age 18. Second, the risk of experiencing this event is highest in the first few years of life. Third, risks are highest for Native American and African American children. Nearly 3% of Native American children and around 1.5% of African American children will ever experience this event. Finally, there is dramatic variation across states in the risk of experiencing this event and in racial/ethnic inequality in this risk. Taken together, these findings suggest that parental rights termination, which involves the permanent loss of access to children for parents, is far more common than often thought.”

A recent Texas Court of Appeals case, T.D. v. Texas Department of Family & Protective Services, 03-21-00387-CV, 01-06-2022, illustrates the series of considerations and “balancing acts” that ultimately lead a court to sever parental rights. One of those considerations is the child’s expressed desire. Justice Debra Lehrmann presented the background of law on court-appointed counsel. The focus of the debate centered on whether the attorney should advocate according to the child’s desires or whether the attorney should determine the goal of representation and advocate what was in the child’s best interests. Beginning in 1984, with the publication of Martin Guggenheim’s ”The Right to Be Represented But Not Heard: Reflections on Legal Representation of Children,” the new focus for attorneys representing children must take into account the impact of the Disciplinary Rules of Professional Conduct. Attorneys representing children must balance competing directives. The ethical canons provide in Rule 1.02(a) that “a lawyer shall abide by a client’s decisions: (1) concerning the objectives and general methods of representation; lawyer shall abide by a client’s decisions … concerning the objectives and general methods of representation.” What if the child’s court-appointed attorney is faced with a child demanding to return to a home where abuse, neglect and drug use are rampant?