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Family Law: Termination of Parental Rights

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Termination of Parental Rights

It is axiomatic that family courts assume that children’s best interests are served when they can be cared for and accessed by both of their parents. As such, the law greatly prefers solutions to custody disputes that include substantial access to the children for both parents. Still, sometimes, parental rights must be terminated due to overwhelming evidence of neglect or abuse. The process of termination of parental rights is the subject of our presentation.

The United States Supreme Court has ruled the all parents have fundamental rights to raise their children.[1] The first Supreme Court decision discussing this right was Meyer v. Nebraska, where the Court established that each parent has a right to “establish a home and bring up children.”[2]

Notwithstanding, the state has the authority to intervene and protect children when necessary. In Schall v. Martin, the Court found that “if parental control falters, the State must play its part as parens patriae,” meaning the state must exercise its power to act as guardian for those unable to care for themselves.[3]

A termination of parental rights is tantamount to a complete separation between the parent and child. A parent whose parental rights have been terminated is also deprived of the ability to make decisions regarding how the child is raised. It is obvious, therefore, that denying a person this fundamental right must be made only with substantial cause and after all due consideration.

Termination of parental rights can be voluntary or involuntary. When a parent voluntarily consents to a termination of parental rights, the parent submits a form to the relevant court explaining the reason for the termination. The court may require a conference to establish that the termination is voluntary.[4] Once a court approves the termination, that order cannot easily be reversed.

An involuntary termination of parental rights is a more complex process. The process generally begins with a report of abuse or neglect to a state agency or law enforcement official. The government (usually through an office of child protective services or similar arm) conducts a thorough investigation.[5] If the results of the investigation warrant further action (such as temporarily removing a child from the home), the state agency is usually empowered to do so. In extreme cases, the state agency may petition the court to terminate the parental rights.[6]

In a judicial proceeding to terminate parental rights, the state has to meet a substantial burden of proof. A 1982 United States Supreme decision, Santosky v. Kramer, determined that the state must show child neglect by “clear and convincing” evidence.[7] This presumption that the best solution is to allow the family to remain intact militates strongly against the involuntary finding of parental unfitness.[8]


Grounds for termination are specified by state statute. As a consequence, the definition of parental “unfitness” varies across the United States.[9] For example, Texas’ Family Code, provides a litany of reasons for a court to order termination of parental rights, some of which include:

·         voluntarily leaving the child alone or in the possession of another not the parent and expressing an intent not to return;

·         voluntarily leaving the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, all for a period of at least three months; or

·         knowingly placing or knowingly allowing the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.[10]

“Unfit” typically means that the parent is unsuitable, incompetent, or not adapted to raise her child or has treated her child inhumanely, cruelly, or raised him in disorderly surroundings.[11]

Since termination is such a drastic measure, courts may also require that a psychological clinical assessment be taken to ascertain whether the parent is unfit. The psychological assessment will address:

1)    The parent’s ability to provide reasonably continuity of care;

2)    The parent’s capacity for empathy;

3)    The parent’s attachment to the child;

4)    The parent’s ability to organize and provide an adequate standard of living for the child; and

5)    The parent’s appreciation for a child’s needs.[12]

Other factors, besides the psychological assessment and evidence of a child’s maltreatment, may also be considered. In one Arizona case, Michael J. v Arizona Department of Economic Security, the state’s child protective services department was successful in terminating a father’s parental rights. The court considered evidence of poor treatment and the father’s felony conviction and the length of his prison sentence before reaching a final determination.[13]

Social scientists have found that termination of parental rights has a detrimental effect on children and puts a strain on the United States’ already-taxed foster system. Studies have found a legal orphan problem, where there are thousands of children who are legally freed from their parents, but have not yet been adopted and are unlikely to ever be adopted.[14] A 2014 Adoption and Foster Care Analysis and Reporting System study discovered that there are nearly 59,000 youth in the US foster care system whose parents have had responsibilities terminated, but were waiting to be adopted.[15] The emotional toll that these long waiting times have on young children is immense, with higher reports of child depression and manic behaviors.

Though a parent-child relationship ceases to exist once a court terminates the rights, several states are attempting to mitigate this strain on the foster care system by allowing for reinstatement of parental rights. The move towards allowing terminated parents the opportunity to restore their parental rights began in California in 2005[16] and eight other states followed California’s lead; all having adopted laws allowing for reinstatement of these rights.[17]

When a parent seeks to reinstate his rights, he must demonstrate improvement in his ability to take care of his child. Other factors may be considered as well. In Nevada, for example, parental rights can be restored if a child, who is 14 or older consents to restoration of his parent’s rights and the parent is informed of, and accepts, legal obligations and rights.[18]

The court’s ability to terminate a parent’s rights is one of the harshest tools that can be used to target parents who mistreat their children and to protect children who are victims of maltreatment. The availability of this mechanism has also had consequences, straining limited resources and causing emotional harm to children. These considerations underlie the delicate balancing test that courts must apply when making this difficult and critical decision.


[1] Stanley v. Illinois, 405 U.S. 645, 651 (1972).

[2] Meyer v. Nebraska, 262 U.S. 390 (1923).

[3] Schall v. Martin, 467 U.S. 253, (1984).

[4] Cary Bloodworth, “Judge or Jury? How Best to Preserve Due Process in Wisconsin Termination of Parental Rights Cases, 2013 Wis. L. Rev. 1039, (2013).

[5] Douglas Cressler, “Requiring Proof Beyond a Reasonable Doubt in Parental Rights Termination Cases”, 32 U. of Louisville J. of Fam. L. 785, (1994).

[6] Id.

[7] Santosky v. Kramer, 455 U.S. 745 (1982),

[8] Michael Kalogerakis, “Handbook of Psychiatric Practice in the Juvenile Court”, (1982).

[9] Richard Lewis Brown, “Undeserving Heirs? -The Case of the “Terminated” Parent, 40 U. Rich. L. Rev. 547, (2006).

[10] Tex. Fam. Code § 161.001.

[11] Vanessa Warzynski, “Termination of Parental Rights: The ‘Psychological Parent’ Standard”, 39 Vill. L. Rev. 737, (1994).

[12] Id.   

[13] Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 995 P.2d 682, 2000 Ariz. LEXIS 23, 319 Ariz. Adv. Rep. 8 (Ariz. Mar. 30, 2000).

[14] Kirsten Andersen, “Part Four: Termination of Parental Rights: Eliminating the Legal Orphan Problem”, 16 J. Contemp. Legal Issues 351, (2007).

[15] U.S. Dep't of Health & Human Servs., The AFCARS Report #21 (2014), available at http://www.acf.hhs.gov/sites/default/files/cb/afcarsreport21.pdf.

[16] A.B. 519, 2005 Reg. Sess. (Cal. 2005) (as passed Oct. 7, 2005).

[18] Nev. Rev. Stat. Ann. § 128.190.