Terminating Parental Rights
The voluntary termination of parental rights may occur as part of a State social services case or a formal adoption proceeding.
In the parent-child relationship, parents have rights and responsibilities. They have the right to make decisions about the child's education, religion, health care, and other important concerns. They have the responsibility to provide the child with food, clothing, shelter, and other financial support. They should provide a stable home environment that promotes the child's healthy development and well-being.
When one or both parents fail in their duties as parents, they can face legal consequences. Sometimes, a parent will acknowledge their own limitations and will voluntarily relinquish or give up their parental rights. More often, the State or a court-appointed guardian will file for involuntary termination of parental rights. In either case, termination of parental rights ends the legal parent-child relationship.
Most state laws provide for a presumption of paternity for a married father. With an unmarried father, there is no presumption. Therefore, an unmarried father who has not established paternity for himself may have greater risk for a loss or termination of parental rights.
Voluntary Termination of Parental Rights
Upon reports of child abuse or child neglect, the State social services or child protective services will start an investigation. If the claims have merit, the State will intervene and may take temporary custody of the child. It may also place the child with a responsible relative or with foster parents. The State will work with the biological parents on a case plan with the goal of family reunification. If the parents do not succeed in the case plan, the State will move towards a permanent placement for the child, which may be adoption. During this process, the parents may elect to relinquish or voluntarily terminate their parental rights.
In another situation, the child's parents are unmarried or divorced. The parent with custody of the child has married or remarried and seeks to have her new spouse adopt the child. Such an adoption will terminate the other parent's parental rights. It will result in the adoptive parents solely having legal custody of the child. The noncustodial parent may agree to the stepparent adoption. This is more likely to occur when the noncustodial parent has had little or no contact with the child and provided little or no financial or child support.
Parents voluntarily terminate their legal rights when they give the child up for adoption. You can find more information about stepparent adoption at the U.S. Department of Health and Human Services Child Welfare Information Gateway.
Involuntary Termination of Parental Rights
Each state has its own statute(s) providing for the termination of parental rights. The State may file for involuntary termination of parental rights after it has failed to reunite a parent with a child successfully. Oftentimes, during an investigation, the State agency may request a court order appointing a Guardian ad Litem (GAL) to investigate and make recommendations on which outcome would be in the child's best interest. The court can take the recommendations of the GAL into account when deciding.
A State child protective services agency may have worked with the parent(s) on a permanency plan and made reasonable efforts to reunify the parent and child. But the parent(s) have not complied. The State may then seek to terminate rights. The most common reasons for involuntary termination include:
- Severe or chronic abuse or neglect
- Abuse or neglect of other children
- Sexual abuse
- Severe mental illness or other parenting deficiency
- Severe alcohol abuse or substance abuse by a parent
- Involuntary termination of the rights of the parent to another child
- Conviction for other felony offenses or domestic violence
- Failure to pay child support or otherwise financially support the child
From a practical standpoint, the State or custodial parent may pursue an involuntary termination of parental rights for a noncustodial parent when that parent will be incarcerated for a lengthy period of time. Sometimes there may be only one parent with custodial rights and that parent has been imprisoned for a lengthy sentence. If the State will now have to place the child in foster care, it may seek to terminate the incarcerated parent's parental rights.
When the State social services or child protective services agency has substantiated child abuse or neglect, they often seek court intervention. The State will seek out-of-home care for the child's well-being and safety. It may request that the court place the child with a stable relative or family member. If there are no alternatives, it may request that the court place the child in foster care. The foster care process can include placement with one foster family or in a foster group home. It may include placement with a relative or family member with foster care services.
Most foster care placements will be temporary. Child protection social workers will develop a permanency plan for a parent. This plan can lead to reunification of the child with the parent or an appropriate relative.
In some cases, the child's parent or parents do not succeed with the case plan. They may continue to engage in dangerous conduct or simply not follow recommendations to complete the plan. If there is no legally responsible parent or guardian, the State may file for permanent custody of the child and an involuntary termination of the parent's parental rights.
Congress' passage of the Adoption and Safe Families Act (ASFA) in 1997 sought to speed up the placement of children for adoption who had languished in foster care. ASFA provides certain circumstances where the State must pursue involuntary termination of parental rights and permanent custody. These include:
- When the child's placement in foster care has been for 15 of the last 22 months
- When the court concluded the child is an abandoned infant
- When the parent committed murder or voluntary manslaughter of another child of the parent
- When the parent was involved in the murder or voluntary manslaughter of another child of the parent in a manner that demonstrates culpability
- When the parent committed a felony assault to the child or another child of the parent that caused serious bodily injury to the child
Many states have adopted statutes that provide for more protections of children in the above circumstances. For example, some have shortened the amount of time in foster care before terminating parental rights. However, more than half of the states also have exceptions to these guidelines, such as when the child is placed with a relative. Another exception includes when the State has compelling evidence that termination of parental rights isn't in the child's best interests. Another is when the State has not provided the services for reunification.
Termination of parental rights will then permit the State to find adoptive parents for the minor child.
Sometimes, the State's child protective services agency will recommend that the court appoint a guardian for a minor child. This may occur during the process of an investigation or the development of a permanency plan and/or reunion for the parent and child. During such a time, there may be a need for a person other than the parent to step in and make decisions a parent would otherwise make for the child. A guardian is different than a Guardian ad Litem. A guardian actually steps into the parental decision-making role. Sometimes, a person who has first served as a guardian will seek to become an adoptive parent taking on a larger role in the child's life.
Court Termination Hearing Process
When a court hears an involuntary termination case, it will conduct a hearing or trial with both parties and attorneys as appropriate. Because the termination of parental rights is a drastic remedy in the law, the court may appoint an attorney to represent the parent who faces termination of rights when that parent is indigent.
The parties may testify at the hearing along with witnesses from the parties and the State. This may include a Guardian ad Litem if there is one on the case. The court will review the evidence based on the state laws related to termination of parental rights. It will issue its findings in a judgment entry.
Child's Best Interests
States require that the court consider the best interest of the child in termination proceedings. In some states, statutes use general language mandating that the child's health and safety be paramount in all proceedings. Other states' legislation lists specific factors that must be considered, such as the child's age; the child's physical, mental, emotional, and moral well-being; cultural and attachment issues; and the child's reasonable preferences.
In Santosky v. Kramer (1982), the U.S. Supreme Court requires a court to find clear and convincing evidence in a decision of termination of parental rights. This is a standard of proof that is higher than the general preponderance of evidence standard used in most civil cases.
Reinstatement of Parental Rights
Most states don't allow reinstatement of parental rights once they've been terminated. However, under some circumstances, the parent may have the option to file a petition and show they've become fit to provide a safe and nurturing home. This may occur, for example, when the child has not yet been permanently placed in a foster home. Some states permit reinstatement only in cases with older children where no permanent placement has occurred.
More Questions About the Process for Termination of Parental Rights? Talk to an Attorney
If you have questions about parental rights and the termination process, you may seek legal advice. Find out more by speaking with a family law attorney near you today.
Can I Solve This on My Own or Do I Need an Attorney?
- Parental liability laws are different in every state
- Liability cases are complex and a skilled attorney is essential
- Establishing or terminating parental rights will involve a court process
An attorney can help protect your rights after your child’s negligent or criminal acts. Many attorneys offer free consultations.
Don't Forget About Estate Planning
If you are in the midst of a parental rights or liability case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.