What is a Termination of Parental Rights?
Before a child may be adopted, they must be “available for adoption.” Availability can be accomplished through termination of the birth parents’ parental rights. In many states, this takes the form of a court order.
What is the Difference Between Voluntary and Involuntary Terminations of Parental Rights?
A voluntary termination of parental rights is the result of an informed and willing consent by a birth parent to termination of their parental rights. Birth parents who want to make an adoption plan may work with an agency or an adoption attorney to consent to termination of their parental rights, depending on the law of their state. This is usually done with a signed consent document and sometimes an oral consent given in court. It is a voluntary process.
Parental rights can also be terminated involuntarily, or without the birth parent’s consent, under certain circumstances. This situation may come up when one birth parent (usually the birth mother) wants to make an adoption plan and the other parent (usually a birth father) does not want his parental rights terminated.
What is Necessary for an Involuntary Termination of Parental Rights?
It depends on the law of the state involved. In some states, a birth father’s parental rights may terminate automatically if he does not take some action within a certain amount of time after receiving notice of the pregnancy, birth or adoption plan. In other states, the law sets forth specific grounds that can support an involuntary termination of parental rights. These may include such things as: abandonment, failure to support, failure to assume parental responsibility, abuse, neglect and conception by sexual assault.
The petitioner, or party seeking involuntary termination of parental rights, must follow certain procedural rules when setting forth their case. For example, the petitioner must properly serve the birth parent with a sufficient statement of the case against them (the basis for the requested termination of parental rights) for the court to have jurisdiction over the case and the power to enter a termination of parental rights order.
What if a Birth Parent Objects to Involuntary Termination of Parental Rights?
If a birth parent objects, the petitioner seeking termination must prove that the objecting birth parent was properly served and that the facts and law support termination of parental rights. This is usually done in a court hearing, or trial, with witnesses and other evidence presented by both sides. The judge will decide whether the applicable law, as applied to the facts proven in the hearing, supports termination of parental rights, and will also consider the best interests of the child.
If the petitioner does not meet their burden of proof, then the objecting parent’s parental rights will not be terminated. If the judge finds that the petitioner did meet the required burden of proof, the judge can enter an order for involuntary termination of parental rights. Once an order is entered, the non-prevailing party may have certain appeal rights.
Can a Birth Parent Change Their Mind and Consent to Termination of Parental Rights During an Involuntary Termination Proceeding?
Yes. An involuntary proceeding can be an opportunity for an objecting birth parent to learn more about adoption. They may realize that their case is weak, or they may not enjoy the litigation process. Often, birth parents and adoptive parents can negotiate a post-adoption contact agreement (PACA) that allows an objecting birth parent to become comfortable with the idea of their child being adopted.
By Lynn J. Bodi, Esq.
The Law Center, S.C.