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Do Not Take Legal Shortcuts When Terminating Parental Rights in an Adoption Case

While many things can go tragically wrong in adoption cases, a preventable problem is a failure to appropriately terminate the parental rights of a biological parent. This comment provides a brief and incomplete educational overview of the single issue of termination of parental rights in domestic U.S. adoption cases.
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News reports describe situations in which a child that has been raised by loving parents for years is ordered returned to a biological parent by a court. These traumatic situations often result from a failure to conduct the original placement or adoption in a legally proper manner. While many things can go tragically wrong in adoption cases, a preventable problem is a failure to appropriately terminate the parental rights of a biological parent. This comment provides a brief and incomplete educational overview of the single issue of termination of parental rights in domestic U.S. adoption cases. Obviously, there are numerous legal issues in any adoption and foreign adoptions raise additional issues. This brief and incomplete educational commentary is not intended to provide legal advice. Always involve an experienced attorney in adoption and family law situations.

Note the words of the U.S. Supreme Court plurality decision in 2000 (Troxel v. Granville). The plurality stated that "the liberty interest at issue in this case - the interest of parents in the care, custody, and control of their children - is perhaps the oldest of the fundamental liberty interests recognized by this Court." A compelling reason and a high level of due process are necessary to remove a fundamental right. Increasingly, children became entitled to legal protections after the federal Child Abuse Prevention and Treatment Act of 1974. However, simultaneously, parental rights were also protected as illustrated by the 1972 U.S. Supreme Court decision, Wisconsin v. Yoder, exempting Amish children from compulsory public education after the eighth grade.

In adoptions, parental legal rights are typically terminated and new legal ties are created with the adoptive parents. State statues provide the legal reasons for terminating parental rights and the procedures for adoption. One must follow the termination of parental rights standards and procedures to the letter. In my opinion, one should go above and beyond the letter of the law, given the basic rights and intimate parent-child connections at stake. It may be tempting, for example, to simply take the biological mother at face value if she states that she does not know the identity of the biological father, does not know how to locate him, or does not want him contacted because he will "cause trouble." However, both parents are entitled to advance notice and a meaningful opportunity to appear and participate in a termination hearing.

The typical statutory reasons for terminating parental rights include such items as conduct that threatens the life, safety, well-being, or physical, mental, or emotional health of the child; abandonment for a specified period of time; a properly prepared and signed surrender and consent to adoption document; and certain types of criminal conduct or imprisonment. Note that poverty or simply being incarcerated are not grounds for termination of parental rights, nor does the biological mother's wishes automatically control the rights of the biological father. While a variety of biological parent lifestyle issues, such as illegal drug use, may favor termination of parental rights, be cautious. For example, adultery or cohabitation alone may not justify the termination of parental rights in a given jurisdiction. A statute or judicial decisions in a given state may allow a time period for a biological parent to attempt to engage in personal rehabilitation as a necessary prelude to a final termination of parental rights. An experienced attorney must review all standards and requirements.

Be aware that the federal Indian Child Welfare Act may apply to Native-American children. An overarching "best interest of the child" standard must be met in all cases. Many statutes list factors for the court to consider with the burden of proof in favor of termination being analogous to that in a criminal case, often expressed as "clear and convincing evidence." The statutes typically require a very diligent attempt to locate a missing biological parent and frequently require a published notice of the date, time and place of the termination hearing when a biological parent is unknown or cannot be located. Again, utilize an experienced attorney and do not take legal shortcuts.

In my opinion, an extremely crucial procedure is a far-reaching "on the record" court hearing with the judge in the courtroom hearing the testimony and the official court reporter in the courtroom transcribing the testimony as well. Sometimes a jury trial may be requested by a party. One must present witnesses under oath who testify about the reasons for the termination and the due process procedures utilized to locate and notify both biological parents of the hearing. Documentary evidence and official records, such as criminal convictions and social studies, must be authenticated and properly introduced into evidence.

Many statutes and judicial decisions require that the biological parent be represented by legal counsel, for free if appropriate, at a termination hearing. Even if not specifically required by statute, request the trial judge to designate well in advance of the hearing persons experienced in adoptions to represent the interests of each biological parent, especially parents anticipated to be absent from the hearing, and the child. Be certain these persons review records and conduct an independent investigation of the situation. A guardian ad litem for the child typically should submit a report and testify. While the adopting individuals may be required to pay additional fees and expenses, an investment up-front is far cheaper than a future conflict. Take the testimony of these persons on the record not only to demonstrate their roles and independence, but to have the trial judge hear and consider whatever they have to say for or against the termination of parental rights. The testimony of duly qualified experts may be appropriate in a specific situation. Request that the trial judge make findings of fact and conclusions of law, based upon the testimony at the hearing, as part of any order terminating parental rights.

Termination hearing transcripts may be subject to a sealed records requirement in a given state. However, determine if the termination hearing transcript is available for purchase from the court reporter. Consult with an experienced attorney concerning the desirability of purchasing transcript copies. Consider purchasing from the court reporter two appropriately officially designated transcripts of the hearing and carefully preserve them as questions may arise years later. The court reporter or transcript itself may be unavailable at that future date. Determine if one official transcript may be placed in the court clerk's case file for future reference. The adopting parents should keep one copy. Again, in my opinion, this additional step may be a worthwhile expense. Without a recorded transcript of the termination hearing that was conducted on the record, it may be necessary to repeat the trial court's hearing at a future date. With a hearing on the record and an official court reporter's transcript, one seeking to challenge the trial judge's decision must typically meet appellate time limitations and procedures. The termination hearing is so critical that no legal shortcuts should be taken.

If the time period for an appeal of the judge's order terminating parental rights has lapsed and the transcript demonstrates that appropriate procedures were followed, it is quite likely that a future reviewing court will uphold the termination of parental rights. Do not take legal shortcuts at the time of the hearing or allow the judge to merely sign an order terminating parental rights without a hearing in the courtroom. An experienced attorney is necessary to do this essential on the record hearing properly.

Parental rights should never be lightly terminated. Nor should a parent ever be denied a full measure of due process in the important termination procedure. This is both the legal and ethical high ground. Beware of relaxed "local practices" of judges and attorneys that fail to meet a very high and demanding standard. This commentary is a brief and limited educational overview of termination of parental rights in domestic U.S. adoption cases. It is not intended to provide legal advice. Always involve an experienced attorney in adoption and family law situations.