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The article analyzes the Supreme Court’s decision in M.L.B. v. S.L.J., 519 U.S. 102 (1996), which held that where a state provides an appeal from a judgment terminating parental rights, it must, under the due process and equal protection clauses provide indigent appellants with a transcript if a transcript is necessary to review the decision. In doing so, it questions the framework used to analyze parental rights termination decisions. Specifically, it questions the sharp line drawn between cases concerning termination of parental rights (in which parents have certain constitutional protections) and cases concerning child custody (in which parents lack those constitutional protections), noting that for indigent parents, an unfavorable decision on child custody can operate as a decision terminating parental rights. It questions the application of the concept of ‘risk of error’ in parental rights termination jurisprudence because the parental unfitness standard itself, as the Supreme Court has recognized, is so vague. Requiring ‘clear and convincing evidence’ of parental unfitness, as the Supreme Court’s earlier Santosky v. Kramer decision (455 U.S. 745 (1982)) requires, therefore does not add clarity. Moreover, given the vagueness of the standard and the breadth of the parens patriae power, the idea of an equal contest of opposed interests is puzzling and inconsistent. The article questions the Court’s failure to find any significance in the fact that this was a stepparent adoption case rather than a narrow termination of parental rights case. Finally, the article addresses the problematic continuing invisibility of children in the Supreme Court’s parental rights termination jurisprudence.

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South Carolina Law Review



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