More than 420,000 children in the United States are in foster care, and more than 110,000 of them are waiting to be adopted. State adoption statutes typically seek to achieve adoption for these children as promptly as possible, but some limit the pool of potential adoptive parents in one way or another. In this Article, we argue that such restrictions violate the State’s constitutional duties to parentless children in its care. Specifically, we contend that children in State custody have a substantive liberty interest in a secure and stable family relationship, because such a relationship is essential in order for these children to attain the capacities needed to function as autonomous adults. Developmental science demonstrates that children need an enduring attachment relationship with a primary caregiver in order to achieve the self-regulation and social competence necessary to function in society, and to receive the essential feedback they need to develop a sense of who they are – that is, to acquire “the ability independently to define one’s identity that is central to any concept of liberty.” A secure and stable family relationship is therefore a component of the minimally adequate nurturing that the State is constitutionally obligated to provide to parentless children in its custody, and this constitutional obligation constrains the State’s choices in establishing its foster care and adoption policies. In particular, given the unstable placements that typify foster care in the United States, laws and regulations categorically disqualifying a class of people from adopting work a direct and substantial interference with the child’s right to a secure and stable family relationship, and therefore must survive strict scrutiny in order to pass muster. However, we suggest that careful thought is needed before the child’s right to a secure and stable family relationship is extended to contexts in which it conflicts with the right of a parent.
Joseph S. Jackson & Lauren G. Fasig, The Parentless Child's Right to a Permanent Family, 46 Wake Forest L. Rev. 1 (2011), available at http://scholarship.law.ufl.edu/facultypub/272