By: Disha Pathak
Published: February 2, 2026
Termination of parental rights (hereinafter “TPR”) is often called the “civil death penalty,” and for good reason.[1] It is the most extreme step a state can take against a parent—permanently and irrevocably severing the legal bond between parent and child. Once parental rights are terminated, the parent loses not only their custody of the child, but also all legal rights and responsibilities for the child.[2] Adoption becomes possible, and the state closes the door to reunification forever.
Despite the magnitude of this decision, courts across the United States apply an inconsistent and insufficient standard of review to TPR cases. Some courts require only that the state prove statutory grounds for termination by clear and convincing evidence and that TPR is in the “best interests” of the child.[3] A few courts impose additional procedural requirements and demand that the state meet the most protective constitutional standard—strict scrutiny.[4]
Since the right to family association is a fundamental right, before a court terminates parental rights, it must find that termination is the least restrictive means of ensuring the child’s safety and that termination is narrowly tailored to achieve a compelling government interest. This requires the state to rule out all less harmful, less disruptive, and less traumatic alternatives—such as kinship care, guardianship, or open adoption—before taking the irreversible step of severing the parent-child relationship.
Background
A. The Right to the Companionship, Care, Custody, and Management of One’s Children is a Fundamental Right
The right to the companionship, care, custody, and management of one’s children is a fundamental liberty interest, deeply rooted in our nation’s history and traditions, and thus, is entitled to the highest level of constitutional protection.[5]
In Stanley v. Illinois, the Court struck down an Illinois law that automatically made the children of unwed fathers wards of the state upon the mother’s death, without a hearing on parental fitness.[6] Peter Stanley, who had lived with the children’s mother for eighteen years, argued the law violated his Fourteenth Amendment rights.[7] The Court agreed, holding that the Due Process Clause protects “the companionship, care, custody, and management” of one’s children and requires individualized adjudication before those rights are severed.[8]
In Troxel v. Granville, the Court reviewed a Washington statute allowing any third party to petition for visitation to a child based solely on the child’s best interests.[9] When paternal grandparents sought expanded visitation rights over a mother’s objection, the Court struck down the statute as applied, affirming that the Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”[10]
In Prince v. Massachusetts, the Court upheld a child labor law as applied to a guardian who permitted her niece to distribute religious literature.[11] While recognizing that “custody, care, and nurture” reside first in parents, the Court emphasized the state’s authority to intervene to protect a child’s welfare, implying that this fundamental right can be encroached upon in certain circumstances. [12] This reasoning is used by protective agencies to argue that there is a limitation on parental rights based on the welfare of the child.
Thus, the fundamental right to reasonable, autonomous child-rearing is firmly grounded in the substantive due process protections of the Fourteenth Amendment.
B. Government Actions that Encroach on Fundamental Rights Must Survive Strict Scrutiny
In Washington v. Glucksberg, the Supreme Court held that only rights “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” qualify as fundamental under the Due Process Clause.[13] When such a right is at stake, the state’s action must survive strict scrutiny by showing it “serves a compelling state interest” and is “narrowly tailored” to achieve that interest.[14]
While Glucksberg rejected a claimed right to physician-assisted suicide, its framework makes clear that when fundamental parental rights are implicated, the state bears a heavy burden to justify any encroachment.[15]
C. The Current Washington, D.C. TPR Statute Does Not Require a Strict Scrutiny Analysis.
Under D.C. Code § 16-2353, parental rights may be terminated if the court finds, that a parent is unfit and such termination of rights is in the best interests of the child.[16]
Child Protection Agencies are not required to file for termination of parental rights if the child is placed with a relative, if adoption or guardianship is not the planned permanency goal, or if the agency has not provided necessary reunification services when such services were required.[17]
Analysis
A. The Washington D.C. TPR Statute Should Require that the Termination be the Least Restrictive Method of Ensuring the Child’s Safety.
D.C.’s current two-step TPR process—requiring findings of unfitness and best interests—falls short of strict scrutiny because it does not require proof that termination is the least restrictive means of protecting the child.[18] In In re Ta.L., two children were removed from their parents’ custody after both parents were incarcerated over a domestic violence incident.[19] At the time of removal, two aunts presented themselves as potential kinship caregivers who wanted to provide a safe home to their niece and nephew and maintain the children’s connection to their family.[20] When one aunt’s application was denied, the second aunt remained willing to care for the children and later sought to adopt them.[21] The biological parents supported this plan.[22]
Despite the availability of this kinship option, D.C. Child and Family Services Agency (“CFSA”) placed the children in foster care, where over the course of several years the children developed a strong bond with their foster parents.[23] By the time adoption petitions were filed, the trial court gave decisive weight to this foster bond and granted adoption to the children’s foster parents. The court rejected the aunt’s adoption petition despite being a fit guardian and holding a constitutionally recognized right of extended family members to live together and support one another.[24]
The effect of this decision privileged a relationship that grew only because the District failed to place the children with relatives, while infringing both parents’ constitutional rights and ignoring the extended family member’s ongoing willingness to provide care. Under a strict scrutiny analysis, the ruling would be reversed because kinship care would have achieved the government’s compelling interest in child safety while leaving the parents’ fundamental rights intact. Here, kin guardianship was the obvious less restrictive alternative, both as a temporary placement and as a path to permanency but was not pursued because of administrative convenience.[25]
To meet constitutional standards, the TPR inquiry in Washington D.C. should include a third step that accommodates for a strict scrutiny analysis. After finding unfitness and best interests, the court must evaluate and reject all safe, viable alternatives—such as kinship placement, guardianship, or open adoption—before severing parental rights.[26] This additional requirement would ensure that termination—the most extreme and irreversible action in child welfare law—is taken only when no other arrangement can adequately secure the child’s safety, thereby satisfying the narrow tailoring demanded when fundamental rights are at stake.
[1] See Matter of R.A.S., 567 P.3d 337, 337 (2025)(quoting Drury v. Lang, 776 P.2d 843, 845 (1989) and noting that the termination of one’s parental rights is tantamount to imposition of a civil death penalty).
[2] Id.
[3] See D.C. Code § 16-2353 (stating that a TPR petition requires the court to make separate findings of parental unfitness and best interest of the child).
[4] See Ex parte Beasley, 564 So. 2d 950 (Ala. 1990) (holding that because parental rights are a fundamental liberty interest, termination proceedings require a three-step inquiry: a finding of unfitness by clear and convincing evidence, a determination that termination is in the child’s best interests, and consideration and rejection of all viable alternatives to termination).
[5] Stanley v. Illinois, 405 U.S. 645, 651 (1972); see also Lassiter, 452 U.S. at 27 (quoting Stanley, 405 U.S. at 651 and stating “This Court’s decisions have by now made plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’”; see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (noting that “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”).
[6] Stanley, 405 U.S. 645 (1972).
[7] Id. at 646 (claiming that the state should not be able to take his children away from him simply because he was not married to the mother of the children but was otherwise a fit and active parent).
[8] Id. at 651
[9] Troxel v. Granville, 530 U.S. 57, 63 (2000).
[10] Id.
[11] Prince v. Massachusetts, 321 U.S. 158,162 (1944).
[12] Id. at 166
[13] Washington v. Glucksberg, 521 U.S. 702, 703 (1997).
[14] Id.
[15] Id. at 706 (finding that since the right to die was not a fundamental right, it would not be subjected to strict scrutiny but the rational basis test).
[16] See D.C. Code § 16-2353 (describing that unfitness is about whether the parent can safely and adequately care for the child and ‘best interest’ is about whether TPR will best promote the child’s long-term stability, safety, and well-being).
[17] Id.
[18] D.C. Code § 16-2353.
[19] In re Ta.L., 149 A.3d 1060, 1060 (D.C. 2016)
[20] Id. (nothing that the first aunt came forward as a potential kinship caregiver but was disqualified when her husband failed the mandatory background check, and the second aunt did not immediately begin the licensing process because she believed she would only be considered if the first aunt was rejected).
[21] Id.
[22] See id. (noting that the parents wanted their children to remain in the family).
[23] See id. at 1070 (noting that at the time of the adoption trial the children had been in the care of the foster parents for three uninterrupted years).
[24] See Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (identifying a constitutional protection of family integrity, specifically the right of extended family members to live together in a single household).
[25] See In re Ta.L., 149 A.3d 1060, 1069 (D.C. 2016) (noting that CFSA did not make any attempts to contact the second aunt and qualify her as a kinship placement).
[26] See Ex parte Beasley, 564 So. 2d 950, 956 (Ala. 1990) (holding that because the right to the companionship, care, custody, and management of one’s children is a fundamental liberty interest, the Due Process Clause requires that courts ensure termination of parental rights is the least restrictive means of protecting the child, even when the parent has been found unfit).