Oct 6, 2026 · 31 min · 8 segments
This week, we're rewinding to a conversation with Vivek Sankaran and Michael Farris from November 2024. Vivek is a professor of law at the Michigan University School of Law and Director of their…
Michael FarrisGuestMichael RameyHostUm, what do you think the future of this framework looks like? Is there a chance it becomes binding in other states besides just Alabama? Um, so Mike, would you start?
Well, I think that the future of parental rights, uh, is, um, rosier than I thought, uh, you know, a few years ago.
The Troxel case from the Supreme Court is a big mess, and, uh, has not helped at all as I know Michael Wing you know very well 'cause you've been researching and writing on it as I have for a very long time.
Um, but, um, I'm, I'm hopeful that the Supreme Court of the United States will take a parents' rights case again soon and will reestablish the footing on a stronger basis.
Uh, and whether that's through the Alabama framework or even there's an alternative framework that I've written about in a law review article published by Liberty University Law School this, uh, fall, early this fall, um, that argues that the same result can be attained through a procedural due process approach, saying that the government must prove through clear and convincing evidence that a parent has, uh, harmed a child in the particular area we're talking about.
And that that standard should be applicable whether they've made a mistake in one area of parental decision-making or in multiple areas of parental decision-making.
Uh, and so, um, Justice Thomas, um, has, uh, thrown a lot of panic into the community when we're talking about whether parental rights are protected at all under the substantive due process doctrine.
So frankly, I wrote the law review article as a, uh, a way to give Justice Thomas and others like him who, who, uh, uh, take a, an originalist approach to the Constitution, a p- a way to get to the same result as substantive due process, but relying on a different approach to get there.
So whether we get there through Alabama or through procedural due process, either way, I want the government always have to prove that the parent has harmed the child before the government can intervene.
Yeah, no, I, no, I agree with that, and you know, I think that, that Mike is right that, that Troxel was a big mess.
I think, you know, Justice Thomas interestingly wrote in Troxel that it called the rest of the court out in saying that they didn't articulate what standard of review should apply, and if this truly is a fundamental right, strict scrutiny should apply, but the court never uses that framework, um, in that, in that decision.
I think what makes me hopeful is I think state legislatures are looking more closely at this, and so there are some good statutes out there.
Um, you know, Washington State recently passed legislation that essentially if kids are living with family, it, it, uh, forces them to look at guardianships first before they can move to termination.
Um, and Minnesota passed legislation that I think will s- significantly limit terminations of parental rights.
Um, and so those are two states that, that, that have good statutes on the book, books.
Utah already has a good strictly necessary language in their statute that ensures that TPRs are strictly necessary.
I also think that the family defense community in child welfare is as strong as it has ever been, um, in that there are more of my law grads and others who are going into the field.
There are more conversations being had about sort of how do you, how do we keep raising it? I'm seeing it within our court of appeals in Michigan that we're getting more and more reversals on terminations.
Um, what do you think the future of this framework looks like? Is there a chance it becomes binding in other states besides just Alabama? Um, so Mike, would you start?
Well, I think that the future of parental rights, uh, is, um, rosier than I thought, uh, you know, a few years ago.
The Troxel case from the Supreme Court is a big mess, and, uh, has not helped at all as I know Michael Wing you know very well 'cause you've been researching and writing on it as I have for a very long time.
Um, but, um, I'm, I'm hopeful that the Supreme Court of the United States will take a parents' rights case again soon and will reestablish the footing on a stronger basis.
Uh, and whether that's through the Alabama framework or even there's an alternative framework that I've written about in a law review article published by Liberty University Law School this, uh, fall, early this fall, um, that argues that the same result can be attained through a procedural due process approach, saying that the government must prove through clear and convincing evidence that a parent has, uh, harmed a child in the particular area we're talking about.
And that that standard should be applicable whether they've made a mistake in one area of parental decision-making or in multiple areas of parental decision-making.
Uh, and so, um, Justice Thomas, um, has, uh, thrown a lot of panic into the community when we're talking about whether parental rights are protected at all under the substantive due process doctrine.
So frankly, I wrote the law review article as a, uh, a way to give Justice Thomas and others like him who, who, uh, uh, take a, an originalist approach to the Constitution, a p- a way to get to the same result as substantive due process, but relying on a different approach to get there.
So whether we get there through Alabama or through procedural due process, either way, I want the government always have to prove that the parent has harmed the child before the government can intervene.
Yeah, no, I, no, I agree with that, and you know, I think that, that Mike is right that, that Troxel was a big mess.
I think, you know, Justice Thomas interestingly wrote in Troxel that it called the rest of the court out in saying that they didn't articulate what standard of review should apply, and if this truly is a fundamental right, strict scrutiny should apply, but the court never uses that framework, um, in that, in that decision.
I think what makes me hopeful is I think state legislatures are looking more closely at this, and so there are some good statutes out there.
Um, you know, Washington State recently passed legislation that essentially if kids are living with family, it, it, uh, forces them to look at guardianships first before they can move to termination.
Um, and Minnesota passed legislation that I think will s- significantly limit terminations of parental rights.
Um, and so those are two states that, that, that have good statutes on the book, books.
Utah already has a good strictly necessary language in their statute that ensures that TPRs are strictly necessary.
I also think that the family defense community in child welfare is as strong as it has ever been, um, in that there are more of my law grads and others who are going into the field.
There are more conversations being had about sort of how do you, how do we keep raising it? I'm seeing it within our court of appeals in Michigan that we're getting more and more reversals on terminations.
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