As mentioned, parents have constitutionally protected “parental rights,” which include the right to prevent adoption of a child without the parents’ consent. Given this safeguard, adoption becomes a two-step process. First, the rights of the child’s biological parents must be terminated. Afterwards, the child is free to be adopted by a new family. Upon termination of parental rights, the biological parent(s) no longer has any legal rights to a child. This is a permanent situation. Termination can be voluntary or involuntary (via court order).

Voluntary Termination

When a parent voluntarily terminates her rights, she has decided that she can no longer care for the child. Afterwards, she no longer has any responsibility for the child. A voluntary termination often occurs when a child is born to a teenaged mother, who may feel overwhelmed by the prospect of caring for an infant. Foremost, before making this type of life altering decision, the mother should keep in mind the best interests of the child.

Example: Thomas and Esther decide to get a divorce when Esther is three months pregnant with their daughter, Elizabeth. During the first four years of Elizabeth’s life, she has lived with Esther, and Thomas has never seen or supported her. Esther is financially self sufficient and does not want any child support from Thomas. Esther fears that Thomas may one day want to interfere with their life. As such, Esther and Thomas agree that in return for Esther absolving Thomas of any duty to pay child support, Thomas will consent to the termination of his parental rights. In this instance, the court refused to terminate Thomas’s parental rights because the statutory provision allowing for termination of parental rights “was not intended as a means for allowing a parent to abandon his child thereby to avoid his obligation to support the child. . . .” See Ex parte Brooks, 513 So.2d 614 (Ala. 1987).

Any time a parent decides to relinquish a child it is a painful decision. As such, to facilitate an easier transition, many localities have statutes that permit a child to be “safely abandoned,” without the threat of the parent facing criminal prosecution for abandoning the child. In those instances, the child must be taken to a designated safe place such as a hospital or fire station—no questions asked.

The method of termination involves either a “surrender” (an adoption agency is responsible for picking the adoptive parents) or a “consent” (a private adoption; usually involves the biological parent picking the parent to adopt the child—parent specific). Before going forward, the biological parents must have clearly made the decision to surrender the child because both consent and surrender decisions are irrevocable, provided there was no fraud or duress involved.

Involuntary Termination

Involuntary termination means:

1. the parent was unfit and
2. it is in the best interest of the child to terminate the parents’ rights

Due to the seriousness of this action, the court needs serious grounds before finding a parent unfit. Some of the circumstances include:

• Abandonment or “extreme parental disinterest,” including lack of visitation or contact
• Abuse or neglect
• Mental illness or deficiency
• Alcohol or drug induced incapacity
• Felony conviction or being in jail
• Sexual abuse
• Felony assault of child or sibling
• Murder or manslaughter of sibling child

To terminate the rights of parents, a mere finding that termination is in the child’s best interest is insufficient. It must be shown that continued custody by the parent would be detrimental to the child.

The natural parents of a child may be judged unable or unfit to care for their child. If such a ruling is rendered, consent of the natural parents to the termination of parental rights (and to the adoption or foster placement of the child) is not necessary.

Example: Judith has a child, Arthur, who is not the child of Hector, her husband. Paternity was never established. Judith is diagnosed with multiple sclerosis when Arthur is born. Because Judith is unable to care for Arthur, he is placed in a foster home. The foster parents file a petition for adoption, but Judith refuses to give her consent even though she is a paraplegic. In this case the court granted the petition for adoption. Where it is shown by “clear and convincing evidence” that parental consent to adoption of a child is being withheld contrary to the “best interests of the child,” parental rights may be terminated. See Matter of Adoption of J.S.R., 374 A.2d 860 (D.C.App. 1977).

If there is more than one child, a finding of unfitness could affect the determination of fitness in regards to other children, even if the parent never abused the other children.

Example: Spencer was a suspect in his wife’s murder. In making a determination as to whom should gain custody of his three minor children, the court considered what would be in the best interest of the children. Courts heavily favor the biological parent in custody disputes. Although he was tried for her murder, he was acquitted. As such, the court decided Spencer should retain custody of his children.

The jurisdiction for hearing these types of cases is juvenile court. In addition, an agency charged with the welfare of children oversees the report gathering aspect of the case via a caseworker. A caseworker ordinarily draws up a “reunification plan”, which outlines the necessary steps the parents must undertake to correct any parental deficiencies. To demonstrate whether a parent is worthy of regaining custody, a parent must diligently work to fulfill the requirements in this plan and visit the child regularly.

A disproportionate number of poor families are targeted for termination—permanent severance of their family ties—because “reunification plans” are frequently beyond the capacity of the parents. Losing a child to protective custody is akin to a civil “death penalty.”

A valid adoption may be created in the state of the child’s domicile, in the state where the adoptive parents are domiciled when the child is before the court, or in a state where the adoptive parents and either the adoptive child or the person having legal custody of the child are subject to its personal jurisdiction.

Example: John and Kelly, residents of Wyoming, give custody of their child, Zelda, to Paula because they are unable to provide adequately for her. Kelly also gives Zelda’s birth certificate to Paula with a letter granting permission to take Zelda out of the state. Paula moves to Utah and later petitions to adopt Zelda. John and Kelly oppose the adoption and contend that Utah’s court lacks jurisdiction. The court held that Utah may hear the adoption proceeding because Paula has legal custody of Zelda and is domiciled there. Personal jurisdiction over Paula is sufficient, even though the domicile of Zelda is that of her natural parents. See, e.g., A. v. M., 180 A.2d 541 (N.J. 1962).

An adverse ruling can be appealed; however, if the appeal is unsuccessful, legally there is nothing more that can be done. An order is final and permanent. The only way to gain access to the child is if the adoptive parent permits visitation. The finality of the termination order applies to all relatives, including grandparents and siblings.

Despite seemingly harsh consequences, there are constitutional protections, which may provide a defense to involuntary termination of parental rights. The U.S. Supreme Court recognizes special constitutional safeguards. In Santosky v. Kramer 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the court balanced the respective interests of the parent, child and public and concluded that the Due Process Clause requires any allegation of parental unfitness to be proved by the “clear-and-convincing evidence standard”—evaluating the high stakes to the parent in losing the child versus any danger the parent(s) may pose to the child.

Unfortunately, indigent parents do not have an absolute right to counsel before their rights are terminated. In Lassiter v. Dept. of Social Services of Durham County, 452 U.S. 18, rehearing denied, 453 U.S. 927 (1981), the Court held that an indigent mother, whose parental rights the state was trying to terminate, was not automatically entitled to appointed counsel. The need for appointed counsel should be determined by the trial court on a case-by-case basis. In Lassiter, the mother’s claim to counsel failed because, in essence, the Court decided that her case was so weak that counsel could not have helped her. In other instances, courts are willing to waive filing fees and costs.

An intermediate step to adoption is foster case, which provides a temporary home until a permanent placement can take place. Where the state seeks temporary custody of endangered children, it must show the risk of harm only by a fair preponderance of the evidence. This best protects the interests of the child because the child’s safety is involved, and the deprivation of parents’ rights is not final. See, e.g., In re Juvenile Appeal, 190 Conn. 310 (Conn. 1983).

Foster Care

When a child’s own family cannot care for him, and adoption is either not desirable at the moment, or not possible, the appropriate remedy is generally foster care. Foster care is care for a child in a family. It is non-institutional substitute care for a planned period, either temporary or extended. Although foster care is supposed to be temporary, many children languish in foster care in need of stable homes because there is a critical shortage of adoptive and foster parents. By contrast, adoptive placement is the permanent substitution of one home for another.

Common situations calling for foster care are:

1. Hard to place: the child is hard to place for adoption, perhaps because of developmental disabilities, emotional problems, physical handicaps or because the child is older.
2. Possible return to natural parents: the natural parents(s) is currently not able to care for the child, but there is a reasonable chance that he or she may be able to do so at some time in the future. Therefore, adoption, because of its finality, would be inappropriate.

States have an incentive to limit the time period of foster care placements due to government subsidies tied to how long a child can be in foster care. These financial incentives can lead to quicker termination of a biological parent’s rights. The Adoption and Safe Families Act (“ASFA”) (passed in November of 1997) is legislation that will make it easier to terminate parental rights. The stated purpose, however—giving foster children “what should be their fundamental right—a chance at a decent, safe home.”

Terminations are on the increase because of changes in state law (e.g., Wisconsin) which cut the amount of time parents have to shape up. Unfit parents’ efforts to get back on track are accelerated so states can stay within federal guidelines and are not forced to forgo federal monies.

States are affirmatively required to proceed with the termination of parental rights when a child has been in foster care for 15 of the most recent 22 months. There are only three exceptions:

1. The child is placed with a relative (at the option of the State)
2. The State documents a compelling reason not to file a petition for termination of parental rights (TPR)
3. The State has not provided the services, identified in the case plan, necessary to make the home safe for the child’s return within the time frame specified in the case plan.

However, ASFA allows the court the discretion to waive this requirement when it determines this is not in the child’s best interest. It also prescribes specific time frames for court review of the child’s case and the ability to bypass family reunification efforts for children in extraordinarily high risk situations (for example: chronic abuse, torture, abandonment or the death of a sibling because of parental abuse). A fourth key permanency provision provides incentive payments to states to increase the number of adoptions for waiting children and new funding with broad discretion for states to promote and support adoptions.

Given these reduced timelines, it is imperative for parents in the system not to dally and diligently complete whatever steps they are assigned by the caseworker the their case, or risk losing their children forever.