Just like you can’t make an omelet without breaking some eggs, you can’t make a forever family without breaking some parental bonds. A child cannot have two sets of parents, so for an adoption to go forward, the child’s ties with his biological parents must be severed. This legal process is referred to as the termination of parental rights or “TPR” for short.
Termination of parental rights is accomplished by a judicial order in a civil action. A birth parent’s legal ties to his child are not severed merely because he signs a document evidencing his willingness to surrender rights to his child. A court declaration that the natural relationship between parent and child has been terminated is required.
Courts have great respect for the parent-child relationship, so terminating parental rights is not an action judges take lightly. The consequences of terminating these rights are extreme. Once parental rights are terminated, the parent is, in the eyes of the law, a stranger to his child. Termination of parental rights ends the legally recognized parent-child relationship. It extinguishes a parent’s rights of inheritance, custody, and visitation as well as the responsibility of providing support and liability for misconduct by the child.
While the parent and child will always be related biologically, no legal bond exists between them following termination. Termination of parental rights may be better understood by envisioning connected paper dolls. A snip of the scissors removes the original tie between the dolls which are being cut apart. While the dolls come from the same material, the rest of the world does not see them as connected once the scissors have snipped. A TPR judgment terminating a parent’s rights to his child is similar to scissors cutting the ties between two formerly connected paper dolls.
A party seeking to terminate a birth parent’s parental rights has the burden of presenting the court with sufficient evidence to establish that a ground justifying termination has been met. Notice of the hearing must be provided to the parent whose rights are sought to be terminated, and he must be given the opportunity to be heard by the court.
The burden of proof in TPR cases is high. The reason for this heavy burden is that a constitutionally protected right is at stake. The U.S. Supreme Court’s 2000 decision in the Troxel case recognized that the due process clause of the Fourteenth Amendment protects the fundamental rights of parents to make decisions about the care, custody, and control of their children. Achieving an adoption requires a fundamental right to be erased.
Termination of parental rights may be voluntary or involuntary. In a voluntary termination, the birth parent agrees that the court may terminate parental rights. This situation is the classic one found in a domestic infant adoption case. A birth parent signs a consent, sometimes referred to as a surrender or relinquishment, for their child to be adopted. That signed document expressly provides that parental rights may be terminated so the child is legally available for adoption. An adopting parent is substituted in for the birth parent through the adoption and becomes the legally recognized parent.
But what happens if the birth parent does not want to give up rights to his child? Termination of parental rights may be achieved involuntarily, i.e., over the objection of or without the agreement of a birth parent. These types of situations typically occur in foster care situations, but involuntary termination may also occur in private adoptions.
Each state has its own laws regarding what grounds are sufficient to justify the termination of an individual’s parental rights. Common grounds for termination include abandonment, abuse, written consent, and neglect. Abandonment is a legal term that basically means desertion. The parent has not stepped up to the plate to take on the responsibilities of a parent such as providing support. One factor taken into account when determining if abandonment has occurred is the length of time the parent has failed to communicate with the child or to financially provide for the child. The longer that length of time, the stronger the grounds for abandonment are.
Simply because a child has been taken into the foster care system by the state does not mean that his parents’ rights are automatically terminated. After the child enters the system, the state must undertake reasonable efforts to provide services to attempt to preserve the family and reunite the child with his parent(s). Services are provided by the state with the goal of remedying the problem that brought the child into the system. But if these efforts do not succeed in allowing the child to return safely home where his basic needs can be met, then the state will pursue termination of the parents’ rights so that the child may be adopted.
How a birth parent’s rights are to be terminated for an adoption is a key factor in an adoptive couple’s decision whether to pursue a particular placement opportunity. If the termination will be based on a voluntary surrender by the birth parent, termination should be obtained matter-of-factly once a consent is signed. Nevertheless, in an infant placement, a consent may not be authorized to be taken until after the baby’s birth; a risk thus exists that the birth mother will not go through with her plan to make an adoptive placement.
When parental rights are to be terminated involuntarily, the strength of the ground for termination should be considered. If a birth father is going to fight the termination of his parental rights, the ability to achieve termination over his objection will be a case-by-case determination based on the particular facts. The court will be asked to sever a tie to the child which is a fundamental constitutional right, so a strong case is required to prevail.
Not only must the strength of the ground for termination be considered, but the prospective adoptive couple must think of the emotional and financial toll which pursuing a contested termination action will entail. Contested proceedings will take longer than ones in which the birth parent is in agreement with the adoption, adding to the stress and cost of the case. Termination may be pursued after the child is placed with an adopting couple; these circumstances weigh on the couple’s mind because the arrangement is not final. They are bonding with a baby in their home who has not been declared permanently theirs because parental rights have not yet been, and may not ever be, terminated.
Adoption creates a new family unit. But to achieve that new family, another one must be dissolved—a natural tie that binds has to be cut. Termination of parental rights makes a child legally available to be adopted, so a TPR proceeding is a required step in any adoption. How termination is to be achieved (voluntarily? involuntarily?) will impact the length, cost, and emotional toll of an adoption case and is key information for any couple deciding whether to pursue a placement opportunity.
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