In contemporary practice, many children languish in foster care without permanency, due solely to the fact that they have the misfortune of an abusive or neglectful parent who is also incarcerated or waiting for trial.
Many nostalgic modern jurists who look back to the Common Law as a reservoir of wisdom to inform right judgments today, hold to the view that Termination of Parental Rights (TPR) is the "death penalty" of family law, and should only be applied in the most "egregious" of cases. (2) As Alabama Court of Civil Appeals Judge Hanson recently noted, TPR is "an extreme remedy that has been described, at various times, as being draconian and equivalent to a civil death penalty." (3)
Further, Alabama positive law has often wrongly asserted that the goal of the Juvenile Court system is family reunification. (4) Family reunification is, in fact, a subordinate means to an end; the end of the good of the juvenile. Otherwise known as the "best interest of the child." (5) Family reunification is, as Aristotle explained, a "choice" - a preference - for arriving at the end of the good of the juvenile.
Assuredly, a preference for family reunification is anchored in a robust history of Natural Law. Blackstone maintains consonance with Natural law when he notes in his Commentary that "[t]he duty of parents to provide for the maintenance of their children is a principle of natural law." (6)
However, Blackstone also notes that natural parents and grandparents "would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish." (7) Furthermore, "[b]y begetting them therefore they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved." (8)
For those natural parents who, by lack of desire or lack of ability, fail to provide for the maintenance of their child, Blackstone cites the Latin maxim "'judex de ea re cognoscet' ['the judge will take cognizance of it']." (9) In other words, there will be a reckoning from the magistrate for this "highest manner" of injury to the child. (10)
Blackstone even goes so far as to maintain that if a "putative father, or lewd mother, run away from the parish" and leaves their child, "the churchwardens and overseers of the parish shall seize his rents, goods, and chattels, and dispose of them" to bring up the child. (11)
However, the nostalgic jurist would do well to carefully note where Blackstone expounds the Natural Law and where he deviates into the positive Common Law of England--as does Blackstone himself.
Thomas Aquinas, the godfather of Natural Law, explains Natural Law in this way:
Wherefore [the rational creature] has a share of the Eternal Reason whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the rational creature is called the natural law... [T]he light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident that the natural law is nothing else than the rational creature's participation of the eternal law. (12)
To say this in another way, the Natural Law is, what the law of God requires of us--written on our hearts. (13)
In Mere Christianity, C.S. Lewis remarks on the absurdity of denying the "Law of Nature" when he challenges the reader to "[t]hink of a country where people were admired for running away in battle, or where a man felt proud of double-crossing all the people who had been kindest to him. You might just as well try to imagine a country where two and two made five." (14)
In order to understand the dangerous effect of equivocating Blackstone with Natural Law, first we must consider the basic purpose of the child welfare system, or the Juvenile Courts in general. As Aristotle noted, "Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim." (15)
Returning to Blackstone, the English Positive Law is in many instances harsh for the orphaned, abused, and neglected child. A "bastard" was "sometimes called filius nullius [son of no one]."(16) A films nullius had only the rights he could acquire by his own grit and tenacity, could inherit from no one, was excluded from ecclesiastical vocations, and could only "be made legitimate," or adopted, by a "transcendent power of an act of parliament, and not otherwise." (17)
Indeed, Blackstone even went so far as to explain that English Common Law would not allow for the termination of parental rights even in cases of a parent prostituting their child or leaving their child destitute: "the law does not hold the tie of nature to be dissolved by any misbehavior of the parent." (18) Nothing could be further from an accurate understanding of Natural Law; Blackstone's comment must be read in its rightful context. Blackstone was speaking solely of a child's duty to care for their aging or impoverished parent:
The duties of children to their parents arise from a principle of natural justice and retribution. For to those, who gave us existence we naturally owe subjection and obedience during our minority, and honor and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws.(19)
It is this last phrase, "which are enjoined by positive law," should capture our attention. (20) As stated previously, the nostalgic jurist should at least mark the same deviations from Natural Law that Blackstone highlights. Indeed, Blackstone contrasts the positive Common Law of England with that of Athens which permitted terminating the parent-child relationship in cases of children born out of marriage, children prostituted by their parents, and children left destitute by their parents. (21)
Blackstone shares Montesquieu's explanation of the Athenian reasoning:
[I]n the first case [where a child is born out of wedlock] the father being uncertain, had rendered the natural obligation precarious; that in the second case [where a parent prostitutes their child], he had sullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third case [where a parent leaves their child destitute], he had rendered their life (so far as in him lay) an insupportable burden, by furnishing them with no means of subsistence. (22)
The positive law of Blackstone's England held that a child was "equally compelled]... to maintain and provide for a wicked and unnatural progenitor, as for one who has shown the greatest tenderness and parental piety." (23) Neither sex-trafficking nor abandonment could be grounds for TPR under Blackstone's English Common Law, unlike the Athenian law.
Further, Blackstone's phrase "which are enjoined by positive law" delivers a sense of Blackstone acknowledging that England's Common Law system was not in concord with Natural Law. (24) In contrast, Samuel Pufendorf, in his 1660 treatise on The Elements of Universal Jurisprudence, faithfully expounds principles of Natural Law that shine with the warmth of the morning sun upon the orphan:
[I]f some parents... not only violating the law of nature but also overcoming common affection, are unwilling to nurture their offspring, and cast it forth, they cannot longer claim any right over it, nor can they demand from it longer any office due, as it were, to a parent. (25)
Pufendorf further expounds the Natural Law view on TPR, and something very akin to foster parent adoption:
But he who has brought up an exposed infant succeeds to the rights of the parent, and to him the foster child owes the same offices which he does otherwise to those who have begotten him, nor can he go back under the authority of his natural parents, if his foster parent is unwilling. (26)
Natural Law thus conceives of TPR, as a great mercy to the orphan whose parents have abused, neglected, or abandoned them. The nostalgic jurist, urging a ruse of objectivity under the guise of "so-called" natural law, would do well to hearken back to the equity principles embedded in the Mosaic law of marriage and divorce.
Under Mosaic Law, divorce was permitted to a wife whose husband had abused or abandoned her. (27) Divorce was permitted as a mercy to the wife so that the wife would not have to continue to live under an authoritarian or derelict superior who had so cruelly abused or abandoned his fundamental duties to her.
Under the equity principles of divorce found in Mosaic Law and TPR under Natural Law bear two striking similarities: (1) "From the beginning it was not so," (28) and (2) they are a necessary mercy.
While it was not intended from the beginning, TPR is a necessary mercy for a child that needs to be relieved of the tyranny of a parent who abuses or abandons their fundamental duty. In those cases, severing the parent's authority over the child, and the child's duty to the parent, is nothing less than a necessary mercy to the child.
In contrast to Blackstone's common law, the Mosaic Law of Divorce and Natural Law's permissive TPR bring to light a propensity of dangerous jurisprudential drift in all times and places - a drift toward a perpetrator centric judicial system as opposed to the Natural Law's anchor in a focus on the welfare of the victim.
We all drift, to some greater or lesser degree, in the inescapable current of our times. We are products of the cultures we live in and the winds that blow our culture...
