In this blogpost, Komal Rastogi, Student, Nirma University, Ahmedabad, writes about the termination of parental rights, the reasons for termination and also about the foster care which protects the child after parents terminate their rights voluntarily or involuntarily.
Parents have both the rights and responsibilities of a child in a parent-child relationship. They both have the right to make a decision about the child’s welfare, education, health care and other important concerns. If the parents are not in a situation where they can handle a child, then the court terminate the rights of the parents. The other reason to terminate the parental rights is if they violate the law. Termination of a parent-child relationship can end the legal relation between parents and child. Once the child is legally free, he can be adopted with the objective of securing a more stable family and environment for a long term need of a child. There are two kinds of termination. It can be voluntary or involuntary. Voluntary termination means parents are agreed to Terminate, their rights as a parent. Voluntary termination of the parental rights occurs when the mother is not able to take care of a child. For example: if a mother is a teenager then maybe she feels overwhelmed to take care of a child. The method for terminating a child is either with the consent or with a surrender. The biological parents must clearly make the decision to surrender the child because both the decisions are not irrevocable.
Involuntary termination means may be the parents are not fit for the child, or maybe it is in the best interest of the child to terminate parental rights. Some of the grounds where courts feel that the parents are unfit for the child’s care.
- The child is abandoned by parents: proof has to be presented before the court that the abandonment is intentional. This could be done through written documentation or by the testimony of the witness.
- The child has been cruelly treated or neglected by either or by both the parents: if there is any cruelty against the child then the state is automatically involved. A petition can be filed to terminate the parental rights of either parent if the parent for one year or more willfully failed to communicate with or willfully failed to pay for the education, care, and support of the child when the parents were able to do so.
- Unfit parents: the parents can be unfit if the behavior of the parent is such that they cannot take care of the child’s mental, physical and emotional health.
- Failing to support the child financially: if the court orders to support a child and also orders to pay for the child but due to some reasons parents are not able to support then also court can send the child to foster home.
- Child’s best interest: some states considers child’s interest and also ensures the child’s health as an important issue in every proceeding while other considers age, the physical and mental wellbeing of a child.
Other reasons for involuntary termination of the parental rights are sexual abuse, long term drug or alcohol induced incapacity of a parent, mental illness or deficiency in parents, or the child is born due to rape, etc. Parents can also be terminated from their rights if either of them or both of them is convicted of the crime. If a parent has committed a crime of violence against anyone in the house then also the court can terminate the parental right of the child. Another reason is if a parent is imprisoned for a long term then also there will be a termination of the rights and the child can be sent to the foster care.
If there is more than one child then also the parents’ right over one child can be terminated even if the parents have never abused the child. The juvenile court would deal all the matters regarding the termination and the child’s custody to the foster care. In fact, an agency is charged with the welfare of children in case of termination.
Foster care is a non-institutional substitute care for a planned period, either temporary or extended for a child. After the termination of parent’s right over the child, if there is nobody responsible left, then the child is sent to fosters care. Before the child is placed in the foster care, the petition is to be filed under the federal Adoption and Safe Families Act (ASFA). The state agencies are not required to file a petition under certain circumstances.
Firstly, the child has been in the foster care for more than 15 months out of 22 months.
There are three exceptions to this clause:
- If state allows placing a child in relatives house
- In fact, the documents of state may be another reason as to compel them not to file a petition.
- “The State has not provided the services, identified in the case plan, necessary to make the home safe for the child’s return within the time frame specified in the case plan.”
Secondly, one of the parents committed murder or manslaughter his or her child.
Thirdly, if a parent has committed an assault which has resulted in the bodily injury to a child or any of the child.
Although the foster care is supposed to be temporary, many children suffer in foster care in need of stable homes because there is a shortage of adoptive and foster parents. The situations where foster care is required are:
- When it is hard to find a place for a child for adoption because of the mental illness or physically handicapped or any other major
- There are situations where parents at that point of time are not able to support a child but after sometime they might be able to support them. Then it is called temporary foster care because of its finality is inappropriate.
To keep a child in foster care, there is a limit of the period as to how much time a child would be in foster care. This is due to the government subsidy which is tied to them. These support of financial incentives by the government can lead to quicker termination of the biological parents’ right. Many states have adopted the statutes which provide more protection to the child in such situations for the betterment of the child.
The Adoption and Safe Families Act makes it easier to terminate the parental rights. It also allows the court to waive the requirement when it feels that this is not in the child’s best interest. There must be a provision which provides incentive payments to states to increase the number of adoptions for waiting for children and new funding with broad discretion for states to promote and support adoptions.
 Retrieved on http://nationalparalegal.edu/public_documents/courseware_asp_files/domesticRelations/Parenthood/Termination.asp