Once a child is born, its parents are endowed with a “fundamental right to parent.” This means that like other fundamental rights (e.g. right to privacy, right to marry), there is a higher scrutiny placed on any attempts to interfere with that right and the presumption is that the right will remain intact. However, according to a recent study conducted by ProPublica, on average 1 in 100 children “experience termination through the child welfare system.” Further, some states are fast-tracking these terminations, with parental rights being severed as quickly as five months after a child is removed from their parents’ care (and six months in Arizona).

The article focuses specifically on West Virginia, which terminates parental rights faster than any other state on average – less than a year after a child is removed from its parents. Comparatively, Arizona terminates parental rights roughly one and a half years after a child is removed. The median timeline, across all states, is a termination that takes place 599 days (nearly 20 months) after a child is removed. To put this in perspective, a parent could lose all of their rights to their child before their child can recognize its own name.

This pattern of quick termination and its variation among states can be traced back to the 1997 Adoption and Safe Families Act. The goal of the Act was to protect vulnerable, abused children by setting forth a specific timeline for “every child who entered state custody after having been removed from home because of an allegation of child maltreatment.” The ultimate purpose of the Act is to promote adoptions, as a child cannot be adopted unless their parents’ rights are terminated (either through the termination process or the consent of the parent).

Under the Act, state agencies have to file for termination 15 months (later reduced to 12 months for younger children) after a child is removed or risk losing federal funding. In an effort to retain federal funding, each state has crafted its own statutory deadlines – which led to the variation that exists today. Among most states the younger the child, the shorter the number of months that can pass before a child welfare agency begins a termination proceeding.

In Arizona, termination can occur as soon as six months after a child has been removed. All that is required is that the child is under the age of three, has been in out-of-home placement for a total (cumulative) of six months or longer, and the parent has “substantially neglected or willfully refused to remedy the circumstances” that lead to the child’s initial removal. This provision can be met if a parent refuses to “participate in reunification services offered by the department.” In practicality, this could mean that a child who is born exposed to substances could be permanently removed from their parent if their parent refuses to participate in a DCS substance abuse program or fails a random drug test.

While the goal of the Act is to remove children from unsafe conditions and get them adopted while they are still very young, it has largely been unsuccessful. It has also harmed thousands of families by creating “legal orphans” — children stuck in the foster system after their parent’s rights are terminated and parents are given insufficient time to remedy their situations and become better parents.

The Act has been revisited many times by Congress, most recently by Representative Cherfilus-McCormick of Florida, who proposed the timeline be extended to 24 months. Although a step in the right direction, this change would not affect the state-specific timelines. A better solution would be to encourage each state to pass legislation that is focused on reunification and addressing the circumstances that led to the termination, as opposed to adhering to a strict timeline of termination.

Brad TenBrook is a former Assistant Attorney General in Arizona. Brad’s practice now focuses on child abuse and neglect litigation. 

Deandra Arena is an attorney at Woodnick Law, PLLC.  She previously was an Assistant Attorney General for the Protective Services Section (representing DCS) in Arizona. She is licensed to practice in Arizona and California.

Woodnick Law, PLLC is a boutique law firm that serves individuals and families in Maricopa County, Coconino County, Pima County, and all throughout Arizona.