Termination of Parental Rights

• Pages: 215-231
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

215

Chapter 10

TERMINATION OF

PARENTAL RIGHTS

Historically, termination of parental rights severed all legal

connections between a parent and a child, including custody,

visitation, and inheritance. Today, because of statutory variations, a

number of exceptions have arisen. For example, states sometime s

allow for grandparent visitation after adoption of the child,

1

or allow

visitation by a genetic parent after the child is adopted in a form of

“open” adoption.

2

In addition, while historically adoption completely

severed the parent-child relationship betwe en the biological parents

and the child, roughly a third of states recognize a “stepparent

adoption paradigm,” meaning that children adopted by the custodial

parent’s marital partner continue to inherit from the birth parent

whose rights have been terminated as a result of the adoption.

3

While

some of these exceptions will be discussed further in Chapter 11, they

represent extraordinary departures from the ordinary results after a

termination proceeding.

A petition to terminate parental rights is governed by state laws

and procedures. There are procedures by which a parent may

voluntarily surrender a child, usually in connection with an adoption

proceeding. Some petitions may originate through a non-parent with

standing, but otherwise, termination typically occurs because the

parent has committed a particularly heinous act defined by statute

that is injurious to the child’s welfare, or the parent has refused to

substantially cooperate with reasonable state efforts to rectify a

problem and reunify the family. In these proceedings, the

termination of parental rights is classified as involuntary.

While petitions for termination begin at the state level, they

must comply with constitutional safeguards. For example, while a

parent does not have a right to be represented by an attorney in a

1

See, e.g., J.M.S. v. J.W., 20 A.3d 458 (N.J. Sup. Ct. App. Div. 2011) (holding

that state’s adoption act did not prohibit grandparent visitation post-adoption);

Walchli v. Morris, 382 S.W.3d 683 (Ark. Ct. App. 2011) (denying grandparents right

of visitation after adoption).

2

For a discussion of the issues surrounding open adoptions, see In re M.L.S.,

2020 WL 6129179 (Tenn. Ct. App. 2020) (rejecting petitioner’s claim to an open

adoption arrangement); see also Lisa A. Tucker, From Contract Rights to Contact

Rights: Rethinking the Paradigm of Post-Adoption Contact Agreements, 100 B.U. L.

REV. 2317 (2020).

3

For a discussion of the emerging rights of nonparents, s ee Jeff Atkinson &

Barbara Atwood, Moving Beyond Troxel: The Uniform Nonparent Custody and

Visitation Act, 52 FAM. L. Q. 479 (2018).

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TERMINATION OF PARENTAL RIGHTS

Ch. 10

civil petition to terminate the parent’s rights, the parent does have a

constitutional fundament al right to the custody of his or her child.

The Due Process Clause of the Fourteenth Amendment safeguards a

parent’s fundamental right to custody, which includes the

presumption of parental authority, fitness, and the right to

discipline. As Chapter 9, supra, discussed, a child’s welfare may be

jeopardized by this fundamental right to p arental authority.

Increasingly, legislatures, courts, and co mmentators struggle to

balance the rights of a child with the rights of a parent. These cases,

which involve neglect, abuse, and abandonment of children, can be

particularly calamitous.

I. Constitutional Procedural Parameters

In 1982 the Supreme Court of the Un ited States clarified

parental termination parameters in Santosky v. Kramer.

4

The Court

ruled that prior to an involuntary termination of parental rights, the

state must support its allegations against the parent by at least clear

and convincing evidence. The New York statute at issue required

only a fair preponderance of the evidence to terminate parental

rights, which was the standard in a number of states at that time.

The facts of Santosky are similar to other cases: the married parents

had two children when the state intervened, a two-year-old girl Tina,

and a one-year-old boy John. The state removed the ch ildren from

the custody of the parents because of complaints made by neighbors

and by a local hospital. Tina had suffered a fracture d femur, bruises

on the upper arms, forehead, flanks, and spine. John was remov ed

subsequently; he had suffered from malnutrition, bruises, cuts,

blisters, and multiple pin pricks on his back. Later, based on the

abuse of Tina and John, the couple’s three-day-old son Jed was

removed from the parents’ custody, too.

5

Upon removal of the children, the state appointed an attorney

to represent the parents while the children were in foster care. The

state, according to procedural protocol, provided the court with a

written plan to reunite the family, including counseling a ssistance

for the parents, a nutritionist aide, a public health nurse, psychiatric

assistance, and vocational counseling for the father. These services

were considered reasonable in the context of the alleged abuse and

neglect. Throughout the next four years, the children remained with

the same foster parents. The parents, during this same ti me,

continuously disregarded most of the services offered by the state and

only sporadically responded to other efforts. Then, after almost five

4

Santosky v. Kramer, 455 U.S. 745 (1982); see also Troxel v. Granville, 530 U.S.

57 (2000) (holding that parents have a fundamental liberty interest in the care,

custody, and control of their children).

5

Id. at 781, n.10.