WHAT IS TERMINATION OF PARENTAL RIGHTS?
Termination of Parental Rights means that a person’s rights as a parent are taken away. The person is not legally the child’s parent anymore. When parental rights are terminated, the parent loses the right to visit or talk with the child.
The Adoption and Safe Families Act of 1997 has impacted the termination of parental rights for incarcerated parents.
WHAT IS THE ADOPTION AND SAFE FAMILIES ACT?
The Adoption and Safe Families Act of 1997 is a Federal law that was passed with the intent to increase the placement of foster children in permanent. It was designed to speed up the process of putting a child in a permanent home and reducing the amount of time that a child might be shuffled around in the foster care system.
Unfortunately, the ASFA guidelines that were meant to be helpful in expediting permanent placements has created a very real barrier to reunification of incarcerated mothers and their children.
WHAT ARE THE BARRIERS CREATED BY THE ADOPTION AND SAFE FAMILIES ACT?
More than half of incarcerated mothers report being single parents which increases the likelihood of their children being placed in the foster care system upon their arrest.
Under the Adoption and Safe Families Act, child welfare workers are required to:
- make reasonable efforts to safely reunite children with their parents
- plan for permenancy placement options while working for family reunification
- file for termination of parental right (TPR) once children have been in foster care for 15 of the most recent 22 months, except in certain allowable circumstances, and encourages States to expedite TPR in specific situations of severe harm inflicted on children
- to document efforts to find adoptive or other permanent placements for children, including placements with fit and willing relatives
- give preference when making placement decisions to adult relatives over nonrelative caregivers when relative caregivers meet all relevant State child protection standards
- emphasize adult relatives over non-relative caregivers when relative caregivers meet all relevant State child protection standards when making placement decisions
The average sentence of an incarcerated parent is 80 to 100 months, well beyond the 15 month timeline for the termination of parental rights.
HOW ARE PARENTAL RIGHTS TERMINATED?
Parental rights can be terminated either voluntarily or involuntarily. Both ways are done in a court with a judge making the decision. All decisions are made in the best interest of the child or children.
Voluntary termination of parental rights eliminates all rights and duties you have for your child. This process cannot be reversed.
Parents often give up their rights as part of an adoption proceeding or when they cannot properly care for their children.
Involuntary termination of parental rights occurs when a third party, like the state, local Department of Social Services, or an individual files a petition to terminate parental rights.
WHAT CAN CAUSE AN INVOLUNTARY TERMINATION OF PARENTAL RIGHTS?
There are two ways to prove the parent’s rights should be terminated:
- exceptional circumstances exist or
- the parent is unfit
The petitioner must prove the parent is either unfit or that there are exceptional circumstances for termination of parental rights by clear and convincing evidence. Clear and convincing evidence is a higher standard than preponderance of the evidence but less than beyond a reasonable doubt. It means substantially more likely than not.
Again, the standard courts use to make this decision is the best interest of the child. The court will favor a continuation of the parental relationship unless the parent is determined to be unfit to remain in the parental relationship with the child or to constitute exceptional circumstances that would make a continuation of the parental relationship detrimental to the best interests of the child.
WHAT THINGS WILL THE COURT CONSIDER WHEN DETERMINING INVOLUNTARY TERMINATION OF PARENTAL RIGHTS?
The court will take some factors into consideration including:
- the extent, nature, and timeliness of services offered by a local department of social services to facilitate reunion of parent and child
- the extent a parent fulfilled their obligations to any social services agreement
- the extent to which the parent maintained contact with the child, social services, and child’s caregiver
- parent’s financial contribution to child’s care
- presence of parental disability that prevents parent from consistently caring for their child
- and generally what efforts the parent is making to be reunited with their child.
Other factors considered include:
- the child’s emotional ties and feelings toward the child’s parents (and severance of the parent-child relationship) and
- the child’s adjustment to school, home, the community, and placement.