Terminating Parental Rights Explained

A termination of parental rights is a court order that permanently severs the legal relationship between a parent and a child. After a parent’s rights are terminated, the parent will lose rights to child custody, child support, and child visitation of that child.

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A termination of parental rights also means the parent will no longer be legally responsible for the child’s future child support, the child’s well-being, or the child’s discipline and misconduct (tort liability).

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The termination of parental rights is a final decision and cannot be reversed without a clear showing of fraud. Termination of parental rights may be voluntary or involuntary.

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Note: Unpaid child support payments that accrued by court order before a parent’s rights are terminated remain as outstanding child support debt(s) after the termination of parental rights.

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Voluntarily v. Involuntarily Termination of Parents’ Rights

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Involuntary: Involuntary termination of parental rights is usually found in four situations:

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• In a juvenile dependency court case where the child’s parent(s) are found to have abused or neglected the child and reunification of the child and the child’s parent(s) is not possible;

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• Contemporaneous with a stepparent adoption case, where a child’s legal parent does not consent to the stepparent adoption, but the stepparent can show that the child’s legal parent is unfit, unavailable, and/or has legally abandoned his or her child; or, where the parent agrees to have his or her parental rights terminated in favor of the child's stepparent;

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• Where the child’s legal parent cannot be found and is presumed deceased, and there is a petition to terminate the missing parent’s parental rights so that another person may legally assume those rights (i.e. current guardian, stepparent, etc.); and

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• Where the legal parent does not consent to the termination of his or her parental rights, but the court finds good cause to terminate the parent’s parental rights;

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Note: In abandonment cases, in order for the parent’s parental rights to be terminated the parent must have intended to abandon the child (as opposed to merely being absent from the child’s life); however, failure to communicate or provide for the child may serve as circumstantial evidence of the parent’s intent to abandon the child.

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Special Involuntary Termination of Parental Rights Cases

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Guardianship Cases: For Guardians interested in terminating a child’s parent’s parental rights based on abandonment of the child by the child’s parent(s), the guardian must show that the child’s parent(s) left their child with the guardian for a period of at least six months without communicating with the child or without providing financial support for the child. The legal parent(s) must also have intended to abandon their child, but lack of financial support and/or communication can serve as evidence that the parent(s) intended to abandon their child.

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Stepparent Adoption Cases: For stepparents interested in terminating the parental rights of a child’s legal parent’s rights based on abandonment of the child the stepparent must show that the child's legal parent has neither communicated with the child for at least a year and has provided no financial support for the child. The child’s legal parent must also have intended to abandon his or her child but the intent to abandon a child can be shown by a lack of financial support.

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Note: In order for a child’s stepparents to legally become the child’s adoptive stepparent the parental rights of the child’s birth parent must first be terminated. The termination of parental rights in a stepparent adoption case can be by voluntary or involuntary. In an involuntary stepparent adoption case, if the legal or biological parent has had some, but very little contact, with the child, or has provided some, but very little financial support, the stepparent may still proceed on an abandonment theory. The court does not allow legal parent(s) to disrupt a stepparent adoption with a few half-hearted attempts at child visitation, communication, or support.

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Juvenile dependency cases: If parents fail to provide and/or protect his or her child, and/or the parent abuses or neglects his or her child, that parent, or parents, may be subject to a juvenile dependency action whereby the parent(s) may have his or her parental rights terminated. Legal parents are usually given several opportunities to complete reunification plans and services in order to stop the court’s termination of parental rights; however, if the parent(s) is unable to reunite safely with the child, the parent(s)’ rights may be terminated as soon as an appropriate foster parent is found. For more information, see Juvenile Dependency Cases.

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Note: Voluntary termination of parental rights is a much easier and faster process than the involuntary termination of parental rights process. Voluntary termination of parental rights means that the legal parent is consenting to the termination of his or her parental rights and often takes place in the context of a stepparent adoption or guardianship case.

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Note: As a general rule, the court only terminates parental rights when there is another person who desires to step in and take on the responsibilities of a parent such as a stepparent, guardian, sibling, or foster parent. If terminating the parent’s parental rights would leave the child with only one person who is legally responsible to care for and financially support the child then the court is less likely to terminate the legal parent’s parental rights.

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For example, if mom is willing to give up her parental rights to her child, and both the child’s dad and the mom’s child agree that mom may, and should, give up her parental rights, then the court will only allow mom to give her parental rights if her child is about to be adopted by a stepparent, or there is a foster parent interested in adopting the child.

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Adoption Agency Cases: In California, a birth mother can consent to her child’s adoption through an adoption agency after mother has been discharged from the hospital. The birth mother must be given some time to change her mind after the child's birth (usually ten to thirty days depending on whether the adoption is through an agency or through an independent person), unless the mother signs a Waiver of the Right to Revoke consent.

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Note: A lawyer that drafts a Waiver of the Right to Revoke Consent on behalf of an adopting parent should not advise the birth mother as to whether or not the birth mother should sign the document. Under this circumstance, birth mother should have her own non-conflicted lawyer who can explain the contents of the document and the legal consequences of signing the document.

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Note: Unmarried fathers who do not consent to an adoption of their biological child must timely file for paternity rights to his child. Paternity suit (parentage actions) may usually be filed on an emergency and ex parte basis where his child is about to be adopted against the father’s wishes. For more information, see Paternity Suits, Father’s Rights, & Ex Parte Hearings,

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How to Terminate a Parental Rights

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If the child's legal parent(s) does not consent to his or her termination of parental rights (involuntary termination of parental rights), or the whereabouts of the child’s legal parent(s) is unknown, then the prospective foster parent, stepparent, guardian, or grandparent, will have to file a Petition to Terminate the legal parent’s parental rights in order for the child’s legal parent’s rights to be terminated.

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A legal parent has the right to object to the termination of his or her parental rights by filing a Response to the Petition to Terminate Parental Rights. A judge will decide on whether or not to terminate the child’s parent’s parental rights based on several factors, including relevant California law, argument and evidence presented in court, and investigation and mediation reports provided to the court by third party investigators and mediators.

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Note: Involuntary termination of parental rights is a very complex legal matter that should only be handled by an experienced family law attorney.

Finally, a “legal parent” is usually, but not always a biological parent. Nevertheless, a legal parent, including a child’s adoptive stepparent, or a person declared to be the child’s legal parent through an uncontested declaration of paternity, has a right to object to the termination of his or her parental rights; however, a non-legal parent does not have the legal right to object to another person’s termination of his or her parental rights.

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For example, if dad is in prison, and mom’s new husband wants to adopt dad’s child (while dad is in prison), then dad’s mom (grandmother) does not have the right to object to the termination of dad’s parental rights. In this scenario, dad must object to the termination of his parental rights on his own. This is true even though dad is in prison and objecting to the termination of his parental rights might be difficult. Of course, if dad has a lawyer, then dad’s lawyer may object, on dad’s behalf, to the termination of dad’s parental rights. Of course, in this scenario, if grandmother is worried that she will lose visitation with her grandchild after dad’s parental rights are terminated, then grandmother may file her own rights to visit with her grandchild.

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To learn more about the termination of parental rights, contact our divorce and family law lawyers today. We offer free consultations to litigants that want to start or defend a case that involves any of the following family law matters: fathers’ rights, juvenile dependency court hearings, stepparent adoptions, guardianship court, grandparents’ rights, changing a child’s name, divorce, child custody, spousal support, domestic violence restraining orders (DVRO), and more, contact our divorce and family law attorneys today for a free consultation. Call today!

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909-307-2645

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