Termination of Parental Rights

Termination of Parental Rights

Termination of parental rights is a very complicated area of law, fraught with confusions.  This blog is NOT intended to act as legal advice.

DOES NOT COVER ICWA!

In addition, this general blog post does not cover the Indian Child Welfare Act, a law so complicated it rivals the Rule Against Perpetuities.  You can download ICWA Judicial Benchbook here.

The ICWA Judicial Benchbook is endorsed and supported by the National American Indian Court Judges Association, the National Indian Child Welfare Association, the Tribal Law and Policy Institute, and the Indian Child Welfare Act Appellate Project at Michigan State University.

Parental Rights

Basically, parental rights are fundamental Constitution rights, and not easily terminated.  This is why for an adoption to proceed, you need the consent of all parents.

The parent has a fundamental right to maintain the parent-child bond and to the care, custody and companionship of his or her child.  However, the right is not absolute and may be abridged when it is necessary to do so to protect the welfare of the child.

Children’s rights

“Children, too, have fundamental rights – including the fundamental right to be protected from neglect and to have a placement that is stable [and] permanent. Children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parent.” (In re Jasmon O. (1994) 8 Cal.4th 398, 419, internal quotes and citations omitted).

So How Do You Terminate Parental Rights of a Parent?

Depends on what type of parent.

In adoption law, there are only three (3) different types of parents (class/category).

Three Categories of Parent in Adoption Law

Mothers.  Presumed Fathers.  Alleged fathers.

“In essence, therefore, our statutory scheme creates three classes of parents: mothers, fathers who are presumed fathers, and fathers who are not presumed fathers.” (Adoption of Michael H. (1992), 10 Cal.4th 1043 , sometimes referred to as “natural” or “biological” fathers.)

Alleged Fathers

Termination of rights of alleged fathers falls under Uniform Parentage Act Family Code section 7600 et seq.

Specifically, Family Code 7662.

Technically, an alleged father’s written consent is not required, but the law requires you to give him proper notice that he was served with notice of the adoption.  The alleged father can consent to the adoption, waive notice of the proceeding or sign a Denial of Paternity, for file a paternity action.  If the alleged father does not do any of these, the Court can end his parental rights.

If the alleged father can’t be found, after a diligent search, the Court can end his parental rights.

Presumed Fathers

Termination of a presumed father’s rights is more involved and complicated.

A presumed father has the same rights as the birth mother, and he must execute consent.  If no consent, the Court must end his parental rights before adoption can proceed.

The most common way to terminate a presumed father’s rights is to bring Freedom from Parental Custody and Control action against him, on the basis of abandonment under Family Code 7822.  Other grounds are the following:

Parent Has Felony Record Demonstrating Unfitness (Family Code Section 7825)

Parent has been adjudicated as developmentally disabled or mentally ill (Family Code Section 7826)

Parent is Mentally Disabled (Family Code Section 7827)