The rights of parents to nurture and raise their children are deeply embedded in the history and culture of Western Civilization. This primary role of the parents in the upbringing of their children is now established beyond doubt as an enduring American tradition. Wisconsin v. Yoder, 406 U.S. 205 (1972).
Accordingly, as a Constitutional protection, the United States Supreme Court has held that parents have a “fundamental liberty interest in the care, custody, and management of their child[ren]”. Santosky v. Kramer, 455 U.S. 745 (1982)
However, just as any of our “fundamental rights”, they are not absolute. The state also has what’s called an important government interest in protecting children. When these two interests collide, the state may move in and terminate a parent’s rights.
There are two ways to terminate a parent’s rights. This article will address those two processes.
This is most commonly seen in adoption cases. The scenario usually goes along these lines – Mom and dad have a child and either never get married or get divorced, etc. But one way or another they split up, and separate far and wide. Mom takes her child with her and, years down the road, she finds herself married to another man, and they start having a family of their own. In many cases, husband and wife would like to adopt mother’s child. There are a number of reasons a step parent would want to adopt a child of a spouse, but this article’s focus is on termination of parental rights, so we will leave the details of adoption for another time.
The easiest way to adopt a child of the spouse is to simply get the biological parent’s consent. To say that is the easiest way does not, by any means, mean it will be easy. The biological parent, for whatever reason, may not consent to the adoption.
There are, of course, good reasons for the biological parent to simply consent to the adoption. When the biological parent consents to the adoption, he is giving up all his legal parental rights in the child or children. That also means he is giving up all his legal obligations, i.e. child support. As someone famous, either Gandhi or Spiderman once said, with great rights come great responsibility.
In the case of voluntarily terminating parental rights, you also give up your responsibilities.
Now, what if biological parent doesn’t want to consent or voluntarily give up their rights? A parent can ask the court to terminate the other parent’s rights. Assume biological parent left when the child was born and child is now ten years old, having never seen that parent.
A court may terminate parental rights if the court finds ANY ONE of the following grounds:
- Only token efforts have been made by the parent to:
- A Parent is unfit or incompetent.
- Parent has neglected or abused the child.
- Parent has abandoned the child.
- Support or communicate with the child.
- Prevent neglect of the child.
Among other reasons.
In the case of the parent who left the child at an early age and has been absent for years, it’s a pretty easy case to show abandonment or neglect.
The second way to terminate parental rights is to remove the child from the parent(s) involuntarily. This usually, comes in the form of the Division of Child and Family Services (DCFS) who initially removes the child from a home on a finding that there is some form of abuse, neglect, endangerment or other factors.
Because of the Constitutional rights parents have with their children, discussed at the beginning, the steps DCFS has to take to terminate parental rights are stringent, to say the least. The Division can initially remove a child from a dangerous environment, say, in the face of drug use, physical abuse and the like. That, in and of itself, does not terminate a parent’s rights. The state must give wide latitude in helping the parents recover, go through therapy or take every reasonable measure to put the child back into the home of the natural parents and in a safe environment.
However, if the Division determines that the parent is unfit or incompetent and on a showing that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care, the Division will petition the court to terminate the parent’s rights.