Parents have a “fundamental right to make decisions concerning the care, custody, and control of [their children].” However, more than three million parents are subject to child protection investigations every year in the United States. Approximately 700 to 800 children are removed from their homes daily, according to the U.S. Department of Health and Human Services. Removal of the child from the home is, in many cases, where the child protection process begins for parents and families and when the permanency-timeline clock starts ticking. Once the court has jurisdiction over the child, parents must correct the conditions that led to the out-of-home placement within a specified period. Sometimes parents have as little as three to six months —or up to twelve months in Minnesota— to correct the conditions before regaining full custody and control of their children. Parents not only work against the clock in child protection matters, but they also confront procedural issues throughout the proceedings that create barriers to the fundamentally fair procedures to which they are entitled. This is because child protection proceedings function differently than proceedings in a more traditional legal case. For instance, once a court determines a child needs protection or services, the court must then oversee the process and efforts of the social services agency as that agency works toward permanency for the child and the family. A number of decisions made between the initial adjudication and the final permanency order have the potential to affect the outcome of the case and substantially affect a parent’s rights.
Other legal scholars have examined various issues within the child protection system and looked broadly at those problem areas. This note will explore Minnesota’s procedures throughout child protection proceedings that cut away at the due process rights of parents. First, this note will lay the backdrop by exploring the constitutional rights of parents in the upbringing of their children. Second, this note will cover the concepts of due process and fundamental fairness as they apply to parents involved in the child protection system. Third, this note will discuss various procedural barriers in Minnesota that diminish fundamental fairness for parents and erode parents’ due process rights. These procedural barriers include the lack of representation for parents in child welfare proceedings, issues with the removal of children from their parents, the inability to appeal certain orders throughout the proceedings, the lack of repercussions for child welfare agencies when they fail to perform their statutory obligations, and issues with involuntary termination and the presumption of palpable unfitness. Fourth, and finally, this note will explore the tension between the best interests of the child and the rights of the parents.