Review Following Termination
1. At the conclusion of the hearing in which the court orders termination of the parent-child relationship, the court shall order that a review hearing be held within 90 days after the day on which the parent-child relationship is terminated, if the child has not been permanently placed.
2. The guardian ad litem shall make recommendations to the court, based on an independent investigation, for disposition meeting the best interests of the child. At that review hearing, the agency or individual vested with custody of the child shall report to the court regarding the plan for permanent placement of the child.
3. The court may order the agency or individual vested with custody of the child to report, at appropriate intervals, on the status of the child until the plan for permanent placement of the child has been accomplished.
Termination of parental rights is a court order that permanently ends the legal parent-child relationship. This type of order terminates rights such as inheritance, custody, and visitation, as well as responsibilities regarding child support and liability for the child’s misconduct. Parental right can be terminated voluntarily by the parent(s) or involuntarily by the court to typically allow an agency, independent, or stepparent adoption to take place. If the other parent does not consent or the whereabouts are unknown to consent for the purposes of adoption, then you will have to file a petition to terminate his or her parental rights, and in most cases, a citation to obtain a hearing date.
Filing For Termination of Reights
There is no court form available to terminate parental rights. You will need to draft the required pleading either on your own or with the assistance of a private attorney. Generally, Family Code section 7820 covers termination of parental rights. Your pleading should clearly request termination of parental rights based on one or more of the below, which ever and however many may apply, including reasons for such request:
• Abandonment
• Neglect or cruelty
• Parents suffering from disability due to alcohol, or controlled substances, or moral depravity
• Parent convicted of felony, consideration of criminal record prior to felony conviction
• Parent declared developmentally disabled or mentally ill
• Mentally disabled parent
You will also need to provide the appropriate documents accompanying your termination request. Once you complete your petition or request for termination of parental rights and the questionnaire, you may proceed with requesting a termination hearing by completing a citation for hearing (no court form available; citation must be drafted). In some limited circumstances, a termination request can be facilitated without a court hearing by ex parte application.
Your documents will be reviewed by the court before a hearing can be set or an ex parte is approved. If sufficient, a termination hearing will be set by the court. Remember, iof deficient, your documents will be sent back to you for further completion.
Each state has laws stating specific grounds for the termination of parental rights, a process that ends the parent-child relationship from a legal standpoint. A termination of parental rights petition is brought to permanently end the legal rights of the natural parents of a child, thereby “freeing” the child for adoption. While states differ slightly on the exact grounds for termination, most statutes hinge on the consideration of a child’s best interests. For example, parents who are unable to provide a safe home, or who have been convicted of serious acts of child abuse, may have their parental rights terminated. Courts make a variety of decisions that affect children, including placement and custody determinations, safety and permanency planning, and proceedings for termination of parental rights. Whenever a court makes such a determination, it must weigh whether its decision will be in the best interests of the child. Most states consider a child’s best interests in termination proceedings. In some states, statutes use general language mandating that the child’s health and safety be paramount in all proceedings, while other states’ legislation lists specific factors that must be considered, such as the child’s age; the physical, mental, emotional and moral well-being; cultural and attachment issues; and the child’s reasonable preferences.
Voluntary Termination of Parental Rights
Typically, parents voluntarily terminate their rights when they wish to give the child up for adoption. Termination of parental rights may be voluntary or involuntary. When it comes to voluntary termination of parental rights, the process is quite difficult because children are generally seen to have a right to a parental relationship and, particularly, a right to receive financial support and care from both parents. Two common situations that often lead to requests to terminate parental rights include a parent who wishes to terminate his/her child support or financial obligation for the child; or a parent who desires to have the other parent completely out of their life.
Reinstatement of Parental Rights
When a court orders the termination of parental rights, the legal relationship between a parent and child ceases to exist. It is very rare and only occurs in especially serious cases, such as those involving child abuse or severe child neglect. And even though a parent may petition the court to voluntarily give up his or her parental rights, the main consideration is always the child’s best interests. Laws allowing reinstatement were drafted generally in response to older children who were aging out of foster care and wanted to re-establish family ties. Usually, reinstatement is available only on the condition that the child has not been permanently placed with a foster home within a given period of time.
Consider meeting with a family law attorney in your area if you have additional questions about reinstatement of parental rights or would like to initiate the process. Remember, a person whose parental rights have been terminated also loses custody or visitation rights with the child. If the voluntary termination occurred through a state child welfare agency, some states do provide for limited post-termination access to the child by the former parent. The family code of each state governs the rules and procedures for termination and post-termination access, if any.
To understand how the laws of your state apply to your situation, contact a qualified family law attorney in your area. Depending on where you live, you may be able to have your parental rights reinstated after they have been terminated by a court. While all states have provisions in the law for the termination of parental rights, most states do not allow for the reinstatement of these rights. But even in states that allow reinstatement, parents must be able to show an extraordinary improvement in their ability to properly care for a child before a court will grant such a request. When a court orders the termination of parental rights, the legal relationship between a parent and child ceases to exist. It is very rare and only occurs in especially serious cases, such as those involving child abuse or severe child neglect. And even though a parent may petition the court to voluntarily give up his or her parental rights, the main consideration is always the child’s best interests.
Laws allowing reinstatement were drafted generally in response to older children who were aging out of foster care and wanted to re-establish family ties. In states where this is available, a parent must file a petition with the court that originally terminated his or her parental rights. The court will determine whether the parent is fit to provide a safe and nurturing home for the child.
Differences in State Laws
Most states that allow for the reinstatement of parental rights require “clear and convincing” evidence that the parent is fit to care for their child. Nevada law has a much lower standard of proof (“preponderance of the evidence”), while North Carolina law even allows hearsay evidence in court proceedings if it is considered “relevant, reliable and necessary” to determine a child’s best interests.
The qualifications for petitioning the court for reinstatement also vary from state to state. For instance, Alaska law restricts this remedy to only those who voluntarily relinquished their parental rights; Louisiana law allows children in foster care over the age of 15 to petition for reinstatement of their parents’ rights; and Washington law doesn’t specify who may or may not petition the court.
Biological parents have a right to seek child visitation or child custody. This is true regardless of whether the child’s parents were married when the child was born. Like other child custody decisions, courts use the best interest of the child to decide disputed child visitation or custody cases involving unmarried fathers. Unless evidence indicates otherwise, courts making child visitation decisions presume that involvement of both parents benefits the child.
The following is a summary of child custody and visitation rights for unmarried fathers, with information on establishing paternity and drafting parenting agreements.
Establishing Paternity
Fathers who were not married when their child was born must legally establish paternity in order to gain access to father’s rights. Often, this simply means both parents signing and filing an acknowledgment of paternity with the appropriate state agency or court, either at the time of the child’s birth or afterward. In disputed paternity cases, a legal process including DNA testing will conclude with a court order stating whether the man in question is the child’s biological father. Once paternity is established, a father may pursue child visitation or other custody rights. Many states offer simultaneous filing for recognition of paternity and for visitation or custody rights.
Child Visitation and Child Custody Agreements
Either before or after a legal process has begun, many parents negotiate a parenting agreement (also called a parenting plan). A parenting agreement can include a wide variety of details including which parent will have primary custody, specifics on the other parents’ visitation periods, particulars on which parent will make decisions regarding the child’s education, health care or religion, as well as procedures for the handling of potential changes to the arrangement. The visitation rights of unmarried fathers often depend on their relationship with the child, any history of child abuse, drug and alcohol use, and other such factors.
Visitation and Custody Rights of Unmarried Fathers: Court Orders
If the parties are unable to agree on a parenting agreement, either parent may petition the court for child visitation or custody help. Parents who can agree to a parenting plan may file it with a court, asking the judge to approve and incorporate it into a court order on visitation and/or custody. Having the agreement become part of a court order allows either parent a direct way to enforce his or her parental rights. If the parents cannot agree on visitation or custody arrangements, either one may ask the court to grant his or her request through a contested hearing. Courts deciding visitation and other custody issues focus on the best interest of the child. Generally, courts presume that children benefit from having both parents involved in their upbringing. This presumption can be overcome if one parent can show that visitation or custody by the other parent would likely cause harm to the child.
For example, evidence of domestic violence or drug problems could be used to argue against a parent having custody or visitation with a child. While courts recognize visitation rights for unmarried fathers, it’s rare for fathers to win sole custody of a child already being raised by the mother. To do so, an unmarried father would likely need to show that the mother is unfit to raise the child and/or that he has been the child’s primary caregiver. Child visitation or shared custody rights, however, allow many unmarried fathers to play a consistent role in their children’s’ lives. Should arrangements need to change, the court can modify the child visitation or custody order, either after both parents agree to the change, or after one parent petitions the court to make the change. Some states allow parents to agree on modification to visitation arrangements without a courts approval; however, a modified updated court orders allow easier enforcement of agreed arrangements and is the best way to ensure visitation rights for unmarried fathers.
Common Grounds for Terminating Parental Rights
Child Abuse Factors
• Severe or chronic physical abuse of the child.
• Any sexual abuse of the child.
• Severe psychological abuse or torture of the child.
• Extreme emotional damage to the child inflicted by the parent.
• Child neglect by failing to provide shelter, food, or other needed care as is required by parental obligations.
• Abuse or neglect of other children in the same household.
• Abandonment of the child or extreme parental disinterest.
• Felony conviction of the parent for a violent crime against the child or another family member.
• The child would be at risk if returned to the parent’s home.
Parental Factors
• Long-term mental illness of the parent.
• Long-term alcohol or drug induced incapacity of the parent.
• Failure to support the child.
• Failure to maintain contact with the child.
• Failure to provide education.
• Felony conviction of the parent when the term of imprisonment is long enough to negatively impact the child and the only other source of care for the child is foster care.
• Failure of the parent to comply with a court ordered plan.
• Inducing the child to commit a crime or crimes.
• Unreasonable withholding of consent to adoption by the non-custodial parent.
• The identity or location of the father is unknown after a reasonable attempt to determine or find him.
• The putative or presumptive father is not the child’s biological father.
• Giving birth to three or more drug affected infants.
• Other egregious conduct or heinous or abhorrent behavior by the parent either to the child or others in a way that affects the child.
• Voluntary relinquishment of rights by the parent.
• Failure of reasonable efforts to rehabilitate the parent and reunite the family.
Additional Factors
• The child has been in foster care for 15 of the most recent 22 months, and the parent is still not ready for reunification.
• Risk of substantial harm to the child.
• The child’s need for continuity and care.
• The child was conceived as a result of rape or incest.
• A newborn child is addicted to alcohol or drugs.
• The child has developed a strong and healthy relationship with his or her foster or other substitute family.
• The preference of the child.
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