Termination of Parental Rights--

Definition: A termination of parental rights means that the person who was the
natural parent of a child no longer has any rights or responsibilities to that child.

Rights: Rights regarding a child include the right to decide what kind of education,
health care, religion, morals and values the child should have. Custody rights and
visitation rights are also associated with children.

Responsibilities: Responsibilities include the duty to provide food, clothing and shelter for the child,
provide all necessary child support, daycare, etc.

A parent whose rights have been terminated has the same rights and responsibilities toward that child
as a complete stranger. Such a parent is not responsible for any support, nor is that parent allowed to
have any input or influence over the education, teaching and upbringing of that child. In fact, a parent
whose parental rights have been terminated does not even have the right to see or contact the child.

To terminate parental rights means that you, as the natural parent of a child, have given up all rights to
that child. Parental rights may be terminated voluntarily or involuntarily. The rights that will be given
up include the right to choose a child's religion, education, health care, visitation and custody rights.

There are two ways by which parental rights may be terminated:

1. Voluntarily--

The natural parents may voluntarily consent to the termination of their parental rights, such as when
an adoption is being permitted, and the child will live with new adoptive parents. Court approval is
required for this kind of proceeding.

Parental rights may be terminated voluntarily with the written consent of a parent who for good cause
desires termination. Even if both parents are in agreement that parental rights should be terminated,
the Court must address whether the termination is occurring for good cause. "Good cause" is not
defined in the statute, but has been applied in some cases.

In one case, a Supreme Court examined the purpose and intent of the statute to determine when good
cause could be found. The purpose of the statute is:

  • First, to enable the judicial system to legally remove a child from a destructive or unhealthy home
    environment without the consent of the natural parents

  • Second, to facilitate adoption procedures by providing a means by which existing parental rights
    may be voluntarily terminated

In light of these purposes, the Courts of Appeals have consistently ruled that a voluntary termination of
parental rights for reasons other than to facilitate adoption works a substantial detrimental effect on a
child, who will be forced to look solely to his custodial parent to meet all of his needs.

The effect is that District Court Judges are extremely reluctant to terminate parent's rights voluntarily
and certainly not where the termination is not agreed upon by the custodial parent. It is also clear under
the law that a non-custodial parent cannot claim that the termination of parental rights is being
requested in order to remove the child from a destructive or unhealthy home environment, since the
petitioning party is not custodial parent.

The likelihood of obtaining an order terminating parental rights is also reduced if the custodial parent is
provided public assistance through the county. Obviously, the county does not want to financially
support children when a parent who has that obligation is available. Even a non-custodial parent's lack
of contact with a child and belief that the parent could not care for a child financially may insufficient to
provide "good cause" for a voluntary termination of parental rights.

Some courts do not allow you "to sign over your rights." Meaning, some type of agreement between you
and the other parent is meaningless to the court or to the child support enforcement agency.

In most cases signing over physical parental rights does not relieve the parent of their financial
obligation unless the other parent agrees. If however, the rights are being relinquished so the child can
be adopted, the court will dismiss child support obligations.

Courts are concerned with the child's welfare and nothing else. Whatever is in the best interest of the
child, whether it is emotionally, physically, financially, is what will decide how the judge rules.

It is important to recognize that the reasons that may give rise to an involuntary termination of
parental rights may not apply to a parent who seeks to voluntary termination his/her parental rights.
They certainly would not apply if the custodial parent did not agree to the termination. For example,
the abandonment provision only applies to involuntary terminations of parental rights --not voluntary
ones.

Here are the steps to terminate parental rights:

How to Terminate Parental Rights

•  Step 1

Look up the state law or statute that gives a natural parent the right to terminate their parental rights.
The statute can be found in the State Code or on a state's legislative website. The exact laws vary
depending on which state the child and parent reside in.

•  Step 2

Have good cause. Good cause is a legal term meaning that you have a good reason for giving up your
parental rights. Most states will consider terminating parental rights to facilitate an adoption as a good
cause. There are very few other good reasons to give up a child. A state statute may have a list of what
the courts have considered good cause in the past. Stay within the good cause guidelines.

•  Step 3

Draw up a written consent document that relinquishes your rights. Call a family law attorney for help
drafting the document or visit the clerk at your local county courthouse for preprinted documents and
guidelines.


2. Involuntarily--

Parental rights may also be terminated involuntarily. To terminate these rights involuntarily, the
moving party must demonstrate that the natural parent or parents have abandoned the child.

Abandonment is demonstrated by showing that the parent has, by conduct continuing for a period of at
least six months, either evidenced a settled purpose for relinquishing parental claim to a child, or has
refused or failed to perform parental duties. A petition to terminate parental rights may be filed by
either parent, an agency supervised by the Department of Public Welfare and providing adoption
services, or an individual having custody or standing in loco parents to the child.


Note: As a general rule, courts are reluctant to terminate parental rights
when one parent feels that another parent is unfit. Even if one parent has
lots of flaws, courts are hesitant to simply relieve a parent of his or her
duties to properly raise the child and pay for the child's expenses.


It is extremely difficult to terminate parental rights, and courts will do so only in rare circumstances.

The parent-child relationship is a fundamental right of all persons. As a result, the burden of proof
necessary to terminate parental rights is quite high. Parental rights may only be terminated
involuntarily if it is shown by clear and convincing evidence that one of the following apply:

  • Abandonment. Abandonment takes place where there is an intention to forsake the duties of
    parenthood. The Court may infer this intention when a parent fails to visit a child, refuses to
    accept responsibility for the child, and a fails to provide financial or emotional support to the child.

  • Failure to Provide Parental Support. Rights may be terminated when there is clear and
    convincing evidence that a parent has substantially and repeatedly neglected to comply with the
    duties of a parent such as the duty to provide necessary food, clothing, shelter, education, and
    other care necessary for the child's physical, mental, or emotional health and development. This
    only applies if the parent has failed to provide support without good cause. In other words,
    parental rights cannot be terminated if the parent is physically and financially unable to provide
    support

  • Failure to Provide Financial Support. Rights may be terminated when a parent has been ordered
    to pay child support or to financially aid in the child's birth and has continuously failed to do so
    despite having the financial ability to do so.

  • Unfit Parents. A parent that is unfit may have parental rights terminated if it can be shown that
    the parent has demonstrated a consistent pattern of specific conduct before the child or of specific
    conditions directly relating to the parent and child relationship which renders that parent unable,
    for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or
    emotional needs of the child. Significantly, there is also a presumption that a parent is unfit if
    his/her parental rights were terminated to another child in the past.

  • Foster Care Placement & Continued Parental Problems. Parental rights may be terminated if a
    child has been placed in foster care because of issues that make a parent unfit and following that
    placement reasonable efforts, under the direction of the court, have failed to correct the conditions
    which would allow the child to be reunited with the parent. Additionally, rights may be terminated
    for child neglect to the degree that the child is placed in foster care.

  • Egregious Harm to Child. If a child has experienced egregious harm in the parent's care, which
    indicates a lack of regard for the child's well-being parental rights may be terminated.

  • Conviction of Crimes. A parent's conviction of certain crimes may also form a basis for the
    termination of that parent's rights.

When making a termination decision, the court is to rely "not primarily on past history, but to a great
extent upon the projected permanency of the parent's inability to care for his or her child."

Abuse or Neglect

The most common situation in which a termination happens is in an abuse or neglect proceeding (not a
divorce!). A parent is determined to be such a danger to the child's physical, mental, or emotional health
that the parent is completely removed from the situation and the child's life with no further contact
permitted. Even in these kinds of cases, it is considered an extreme measure and is one that takes the
court system months or years to arrive at after every other alternative is tried first.

Adoption

When a parent's rights are terminated in an abuse or neglect situation, the child is placed in foster care
with adoption as a goal (at least for younger children). When a parent who is divorced and remarried
wants his or her new spouse to adopt the child, a stepparent adoption must take place. However, this
can only happen if the other natural parent consents to the adoption by voluntary termination of
parental rights, or has his or her rights terminated by the court.

A termination in this situation, when it is warranted, is often a good thing for the child. The child is
adopted by a loving and involved stepparent who fills those parental shoes in the child's life.

Other Terminations

Unfortunately, I am often asked about termination of parental rights in other situations. These fall into
two general categories: fathers who don't want to pay any more child support and wants to relinquish
parental rights to get out of it; and mothers who want to find a way to terminate the father's rights to
get him out of her life.

Trying To Avoid Child Support

Both of these situations are deeply disturbing. It's appalling that a man would be willing to break all ties
with his child and in effect say 'I no longer want to be part of your life' just to save some bucks. The
damage that is caused by this act is irreparable. The child is clearly told he is not important and does not
matter - and that money is of more importance than him. It is disgraceful and appalling. Even if a man
has previously had little contact with the child, this legal maneuver still sets the child up very clearly as
someone who is not wanted.

Inability To Get Along With The Other Parent

The other situation is just as disturbing. There are lots of people who have very difficult relationships
with their exes. And of course, there are women who have been placed in great danger by a man and
want no contact. However, if a court has decided that it is appropriate for that child to have a
relationship with that father, the mother must put her personal feelings aside and find a way to make it
happen. Yes, it can be a pain sometimes to deal with his BS. Yes, visitation can be an inconvenience.

However, to seek to terminate a father's relationship with his child just because you don't like him or
don't want to have to navigate the situation any more is inexcusable. Even if that man fails to exercise
his visitation, he still is connected to that child and there is a chance that someday he will come to his
senses and reestablish a connection. A woman who proactively seeks to remove the father from the
child's life without a good reason is creating a trauma for her own child. The child may one day as an
adult feel that this choice was harmful.

Courts Weigh In

There are certainly situations in which termination is appropriate and warranted and courts will
respond in those situations. However, in other scenarios, it is very likely the court will not grant the
termination that is being sought. In the eyes of the court, a parent and child have a connection that
should not be severed without a very good reason. Unfortunately, there are times when courts will
grant terminations if both parties agree - the father to get out of child support and the mother to get
him out of her life.

Parental termination is not something that should be considered lightly or without extreme
circumstances.


Grounds for Involuntary Termination of Parental Rights: Summary of State Laws


Voluntary Termination of Parental Rights (relinquishment): Releases a father or mother from
all parental responsibilities, including child support. Full instructions & Forms are included.
Q & A –

Question: I am trying to terminate the parental rights of my ex husband. He has not seen the child in 2 years and has not paid any
support either. My husband would like to adopt my child. I live in NC, my ex is believed to be in TN but his last known address is
SC. Where do I need to file for termination?

Answer: Your husband would file, in the North Carolina courts, a petition for step-parent adoption. Your ex husband has to be
given notice of this petition. Such an adoption, when granted, would have the effect of terminating the parental rights of your ex
husband. You should consult with legal counsel in your area for specific information relevant to your situation.

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Question: I have been told in NC that you have to file for termination BEFORE the adoption takes place. Is this not true? This has
been told to me by 2 different attorneys in NC. The attorney who handled my divorce in SC has told me that in SC it would be
handled under one petition as well. I am now very confused. I was also told by a NC attorney that the petition for termination of
parental rights follows the parent not the child.

Answer: The NC statutes are clear:

"§ 48-2-302. Time for filing petition.
(a) Except for petitions filed pursuant to Articles 4 and 6 of this Chapter, a petition for adoption must be filed no later than 30 days
after a minor is placed with the petitioner or this State acquires jurisdiction to hear the petition, whichever is later, unless the court
extends the time for filing.
(b) If a petition is not filed in accordance with subsection (a) of this section, any person may notify the county department of social
services for appropriate action.
(c) A petition for adoption may be filed concurrently with a petition to terminate parental rights" .http://www.ncga.state.nc.
us/EnactedLegislation/Statutes/HTML/BySection/Chapter_48/GS_48-2-302.html

But termination of parental rights is not necessary unless the legal father refuses to consent to the adoption.

"§ 48-1-106. Legal effect of decree of adoption.
(a) A decree of adoption effects a complete substitution of families for all legal purposes after the entry of the decree.
(b) A decree of adoption establishes the relationship of parent and child between each petitioner and the individual being
adopted. From the date of the signing of the decree, the adoptee is entitled to inherit real and personal property by, through, and
from the adoptive parents in accordance with the statutes on intestate succession and has the same legal status, including all
legal rights and obligations of any kind whatsoever, as a child born the legitimate child of the adoptive parents.
(c) A decree of adoption severs the relationship of parent and child between the individual adopted and that individual's biological
or previous adoptive parents. After the entry of a decree of adoption, the former parents are relieved of all legal duties and
obligations due from them to the adoptee, except that a former parent's duty to make past-due payments for child support is not
terminated, and the former parents are divested of all rights with respect to the adoptee." http://www.ncga.state.nc.
us/EnactedLegislation/Statutes/HTML/BySection/Chapter_48/GS_48-1-106.html

The NC attorneys you spoke with may have confused "relinquishment" with termination of parental rights. The father who's rights
have not been terminated must consent. The rights of a father who has relinquished only terminate when adoption is final.

See § 48-3-705. Consequences of relinquishment.

"(a) A relinquishment executed pursuant to G.S. 48-3-702 through G.S. 48-3-704 may be revoked as provided in G.S. 48-3-706
and is otherwise final and irrevocable except under a circumstance set forth in G.S. 48-3-707.
(b) Upon execution, a relinquishment by a parent or guardian entitled under G.S. 48-3-201 to place a minor for adoption:
(1) Vests legal and physical custody of the minor in the agency; and
(2) Empowers the agency to place the minor for adoption with a prospective adoptive parent selected in the manner specified in
the relinquishment.
(c) A relinquishment terminates:
(1) Any right and duty of the individual who executed the relinquishment with respect to the legal and physical custody of the minor.
(2) The right to consent to the minor's adoption.
(3) Repealed by Session Laws 1997-215, s. 19.1(b).
(d) Except as provided in subsection (c) of this section, parental rights and duties of a parent who executed a relinquishment are
not terminated until the decree of adoption becomes final or the parental relationship is otherwise legally terminated, whichever
occurs first. Until termination the minor remains the child of a parent who executed a relinquishment for purposes of any
inheritance, succession, insurance, arrears of child support, and other benefit or claim that the minor may have from, through, or
against the parent. "

You should consult with legal counsel in your area for specific information relevant to your situation.

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Question: When I went through the divorce process, my ex had to be served by notice of publication because he moved and did
not leave any forwarding address or any info. It's my understanding that the adoption/termination of parental rights will have to be
done in the same fashion.

Since there is no way for him to consent, will I then have to go through the process of termination of parental rights before filing
for the adoption or is that something that can still be done together?

When you use the word relinquishment, has he already done that by not seeing the child or paying support in over 2 years?

Is my next step from this point consulting with an attorney and requesting that the adoption and the termination be done at the
same time?

Do me and my husband have to married for a specific amount of time before he can file for the adoption?

Answer: If the ex husband cannot be located, it make it more complicated. His rights probably have to be terminated, but as the
statute says, both can be applied for at the same time.

No, relinquishment seems to be a term of art meaning, in this statutory context, a formal agreement on the part of the ex.

Yes, by all means see an attorney if you are able to do so.

"§ 48-4-101. Who may file a petition to adopt a minor stepchild.
A stepparent may file a petition under this Article to adopt a minor who is the child of the stepparent's spouse if:
(1) The parent who is the spouse has legal and physical custody of the child, and the child has resided primarily with this parent
and the stepparent during the six months immediately preceding the filing of the petition;
(2) The spouse is deceased or incompetent but, before dying or being adjudicated incompetent, had legal and physical custody
of the child, and the child has resided primarily with the stepparent during the six months immediately preceding the filing of the
petition; or
(3) For cause, the court permits a stepparent who does not meet the requirements of subdivisions (1) and (2) of this section to
file a petition."

So yes, with the possible exception described in subdivision (3), there is the 6 month requirement. That might be what they
meant when they said you should file for termination first: might as well get that out of the way while waiting the 6-mo. period.

You should consult with legal counsel in your area for specific information relevant to your situation.

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Question: I am not sure if you are the correct person to help me, but if you aren't, then perhaps you can direct me to someone
who can.  My brother has two children (aged 11 & 5) with his ex-wife.  He has not seen these children in at least 4 years, which is
mostly his fault.  He had quite a few issues, and wasn't paying child support AT ALL.  However, he has recently "grown up," and is
paying child support in full (plus arrears), and is fully cooperative.  His ex-wife says she wants him to terminate his parental
rights, and have her current spouse adopt the children.  After realizing that this may be in the best interest of the children, he
agreed, but she refuses to file the paperwork.  He recently contacted her, and said that if she wasn't going to file to terminate, he
wanted to try to reconnect with the children, and since he was in full compliance of the court ordered support, he didn't see the
harm in it.  The ex stated that she wants him to take her to court so she can get the paperwork filed then to terminate.  After this
amazingly long story, all I need to know is whether or not (in the state of Missouri) he needs a private attorney to file paperwork
with the court to enforce his legal custody rights?

Answer: From the information that you have given me, it probably would be best for your brother to visit an attorney in order to go
to court and arrange visitation with the children.  I would encourage him to contact his ex-wife once again to let her know that she
can either allow him the visitation or he will obtain it through the courts.  I'm assuming that your brother never abused his ex-wife
or the children.  If that is the case, he probably will be unsuccessful in court.

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