What Does It Take To Terminate Parental Rights?

Alabama has a two-step process that any court must conduct before terminatirg any person’s parental rights. The case of P.H. v. Madison County DHR, Case No. 2040483, 2040490 (Ala. Civ. App. February 17, 2006) is a good illustration of how the Alabama Court of Civil Appeals thinks the process should work, because it examined the cases of both parents. It found that termination of parental rights was appropriate for one parent and not for the other.

As blog readers already know, Alabama has a two-pronged test for terminating parental rights. The court must first determine that valid grounds exist for terminating parental rights, including (but apparently not limited to) those set forth in Ala. Code §26-18-7. If the answer is yes, the court must then inquire whether all viable alternatives to termination have been considered.

Here’s the relevant text of §26-18-7:

§ 26-18-7. Termination of parental rights

(a) If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.

(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.

(3) That the parent has tortured, abused, cruelly beaten or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.

(4) Conviction of and imprisonment for a felony.

(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.

(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.

(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:

a. Murder or voluntary manslaughter of another child of that parent.

b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of that parent.

c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term “serious bodily injury” means bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(8) That parental rights to a sibling of the child have been involuntarily terminated.

(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:

(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.

(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.

(3) Failure by the parents to maintain consistent contact or communication with the child.

(4) Lack of effort by the parent to adjust his circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.

(c) In any case where the parents have abandoned a child and such abandonment continues for a period of six months next preceding the filing of the petition, such facts shall constitute a rebuttable presumption that the parents are unable or unwilling to act as parents. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.

The mother in P.H. was of below normal intelligence with an eighth grade education and little or no family resources on which she could call for help. The appeals court described at length, however, the many changes the mother had made in her work schedule and lifestyle so she could be a more effective parent, as well as the counseling she had used.

We note that a court should terminate parental rights in only the most egregious circumstances because those rights, once terminated, cannot be reinstated. V.M. v. State Dep’t of Human Res., 710 So. 2d 915, 921 (Ala. Civ. App. 1998); and S.M.W. v. J.M.C., 679 So. 2d 256, 258 (Ala. Civ. App. 1996).

As to the father, however, the appeals court found that the juvenile court’s judgment terminating his parental rights was supported by clear and convincing evidence and was no plainly and palpably wrong. Specifically, the appeals court dispensed with the father’s argument (a) that there was not clear and convincing evidence that the child was dependent (the father had been convicted of domestic violence against the child’s half brothers); (b) that the juvenile court failed to consider alternatives to termination, including placing the child with the paternal grandparents (juvenile court had already made a finding of fact that living with the paternal grandparents posed a real ande present danger to the child; and (c) that the juvenile court’s judgment was not supported by clear and convincing evidence of any of the factors listed in §26-18-7 (the list by its terms is not exclusive, and the juvenile court had sufficient evidence from which it could have concluded that the statutory standard was satisfied).

We note that the juvenile court’s judgment terminating the father’s parental rights specifically found that the father was unfit; that he was unwilling to change his habits; that he was non-rehabilitated; and that the “safety and welfare of any child would be threatened in his care.”

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247 thoughts on “What Does It Take To Terminate Parental Rights?”

  1. Hey I had a kid taken away from me when I was young and dumb. 18 Years old to be exact. The kid is 16 now. I had my rights terminated and it was a closed adoption. Do I have to wait until he’s 18 to contact Him? Will I get in trouble?

  2. My daughter’s father has not contacted her in 4 years..she is 9 now..he has a new relationship with her 2 children..he might pay some child support once or twice a year..he has asked in the past to have his parental rights turned over.i do not think he will fight it but i do not know how to contact him..what is the process for me to get the ball rolling..i have a fiancée who loves my daughter to death and would one day love to odopt her..where do i start? I live in north carolina and the “father” lives in Maine if that matter’s at all..

    1. Hi Jennifer. Dad’s periodic payment of child support keeps you from forcing a termination of his parental rights, but that doesn’t mean he wouldn’t agree to it voluntarily if you ask him. The next time you receive a payment, you could ask the bank to help you trace it back to a name and address and see if you can’t find a way to begin a conversation with him.

      That having been said, it could be that you’re not really ready anyway. Stepfamilies are incredibly hard work. Get married. Let your new husband and your daughter live together and experience life as a stepfamily. If and after (a) your marriage is stable and loving over a period of years, and (b) the relationship between your daughter and her stepfather is stable and loving over a period of years, then it may be time to raise with BioDad the possibility of termination of his parental rights simultaneously with adoption of your daughter by her stepfather.

  3. So I want to adopt my girlfriends daughter. Her real father has abandoned her and would rather do drugs then be a father, but he refuses to sign over his rights to her even though he has nothing to do with the baby! If anyone knows how I can go about adopting this little girl it would be very much appreciated.

  4. I am married. My wife cheated and became pregnant. We had a son that was believed to be mine. After the dna test came back I found he didn’t actually belong to me but I had already signed my name as his legal father. I’m not sure what I should do. I don’t wanna give up my son but I also know it’s not right to keep him from his rightful father. His rightful father did however run me over with his truck putting me in the hospital with the need for surgery to fix my body. I hate that he did this but I also know in his shoes I might have done the same. I don’t hold this against him or the baby by no means. More blame his lying mother. I feel it’ll be best to surrender my rights to him. I really don’t know if this truly is best nor how to go about righting this wrong.

  5. I have a 6 month old child and am getting a divorce the father cheated and then left me before I knew I was pregnant and when I said it was his he denied it we have been separated over a year and I am filing for divorce this month can I have his rights taken for abandonment since he has not paid anything to support her and has not seen her at all.

    1. Hi Kaylee,

      In most states you’ll need to show 6-18 months of no support, no contact with the child to petition for termination of parental rights, and you’ll need to have a new daddy ready, able, and willing to step into bioDad’s shoes. That means new daddy needs to take FULL responsibility for parenting the child, including the payment of child support. If you meet the statute in your state, you can file. If not, wait patiently until you do.

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