Courts seek balance between rights of parents, children
BY CLARENCE MABIN / Lincoln Journal Star
The right of parents to custody of their children is a fundamental liberty protected by the U.S. Constitution. So says the nation’s highest court.
But children have rights, too, courts have held, and the challenge of the juvenile justice system often is to protect the rights of the one without unduly violating those of the other.
Jeff and Lisa Elrod of Lincoln think the courts give wayward parents too many chances. In May, the Elrods adopted three children Lincoln police removed from a filthy, vermin-infested home in 2005.
“They set the bar too low for (biological parents), too high for foster parents,” Jeff Elrod said. “In the meantime, the kids are hanging in the balance.”
Added Lisa Elrod: “Just because people have managed to have a baby doesn’t make them (fit) parents.”
In an October opinion, the Nebraska Supreme Court said the interests of parents in the custody, care and control of their children “is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court.”
Thus, the legal bar is set high in termination cases.
The state court cited a 1982 U.S. Supreme Court ruling: “When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.
“If the State prevails, it will have worked a unique kind of deprivation.”
Alicia Henderson, who heads the juvenile division in the Lancaster County Attorney’s office, recalled a case from the late 1980s or early 1990s in which a child had been in foster care for 10 years.
She said she has seen a shift in emphasis in the past decade.
“Before, it was in favor of parents’ rights. Now it’s shifted more toward children’s rights.”
The shift was due is large part, she said, to the 1997 federal Adoption and Safe Families Act. Nebraska adopted the act in 1998.
Among other things, the act set a time guideline — child placement outside the home for 15 or more of the most recent 22 months — for what is a reasonable amount of time for custodial parents to reach “a minimum level of fitness.”
That’s not to say natural parents are now at a disadvantage.
The system doesn’t demand perfection from parents in rehabilitation, Henderson said, and it recognizes that most children want to be in their homes.
“The statistics tell us that children would rather be with their biological parents,” she said. “We realize we’re not going to get people to live perfect lives.”
Balancing rights of parents and children is one of the reasons cases take so long, she said.
“It is a tough balancing act.
“I’d make a few changes. We still have cases open far too long. … (But) I think the balance is in the right place.”
Reach Clarence Mabin at 473-7234 or cmabin@journalstar.com.
