Some of the most disturbing cases are termination of parental rights cases. The power of our government to take a child away from a parent should disturb anyone. However, what some parents do to their children is even worse. The juvenile court must walk a fine line between protecting children and not violating parents’ rights. Cases in juvenile court can be the most disturbing, but it is also where a lawyer can do the most to protect a child. To illustrate the legal standards in terminating a parent’s rights, I summarized below a published Arizona appellate court decision from about four years ago.
The trial court terminated Father’s parental rights regarding his two daughters because he was unable to discharge his parental responsibilities because of his chronic drug abuse causing him to be unable to discharge his parental responsibilities. Other grounds that a Court may use are abandonment, serious abuse or neglect (including knowingly failing to protect the child), that the parent is unable to discharge parental responsibilities because of mental illness, incarceration for a felony that proves the parent’s unfitness, failure to file a paternity action, failure to file a notice of claim of paternity, that the parents have relinquished their rights and placed the child for adoption, that the child has been in out-of-home placement for a certain number of months, that the identity of the parent is unknown after three months of diligent efforts to identify the parent, and that the child has been in and out of placement after diligent efforts at reunification. The court also made the requisite finding that termination was in the children’s best interest. The state had previously removed the girls from their mother’s care and placed them with Father because Mother failed to report that her husband had sexually abused them, and permitted them to continue residing with her husband. Father accepted services from the state for his substance abuse, participated in treatment on and off, and, although he had several periods where he tested negative for drugs he consistently failed to remain off of drugs. He also permitted his alcoholic stepfather to care for the children. Also, under his care the children were in a head-on collision that resulted in very serious injuries to one of them. Father also injured one of the girls when he physically abused her.
The issue on appeal was whether the trial court had sufficient evidence to find that Father was unable to meet his parental responsibilities due to his chronic drug abuse. To terminate a parent’s parental rights for chronic drug abuse, a court must find the following factors by clear and convincing evidence (a high standard): 1) a history of chronic abuse of alcohol or controlled substances; 2) that the parent is unable to meet parental responsibilities because of the chronic abuse; and 3) that the chronic abuse will continue for a long and indeterminate period. If the court makes these findings, the court must then find by a preponderance of the evidence (more likely than not - a lower standard than clear and convincing evidence) that termination is in the child’s best interest. Father pointed to periods during which he did not use alcohol or drugs. The appellate court examined the meaning of "chronic" and held that "chronic" does not necessarily mean "constant." The appellate court father’s long history of substance abuse and an evaluation that determined that he had a marijuana addiction and should be evaluated for alcohol abuse and narcotic/opiate medication abuse was sufficient evidence for the trial court’s determination of Father’s history of chronic abuse of alcohol and drugs. The appellate court also held that the trial court had sufficient evidence to find that the abuse led to Father’s inability to parent, specifically his inability to make appropriate decisions for his children, and his failed to protect them from abuse.
Father next argued that there was no evidence that his substance abuse would continue for a long and indeterminate period. The appellate court, however, said that the fact that Father had consistently failed to abstain from drugs and alcohol despite knowing the loss of his children was imminent is evidence that he has not overcome his dependence on drugs and alcohol.
Finally, the appellate court considered whether sufficient evidence supported the trial court’s finding that severance was in the children’s best interest. The factors to consider in the trial court are: 1) whether an adoptive placement is immediately available; 2) whether the existing placement is meeting the children’s needs; and 3) whether the children are adoptable. In this case
there was evidence that the children were thriving in their placement and that the foster parents, as well as relatives of both Father and Mother were willing to adopt the children. The appellate court concluded that the trial court had sufficient evidence to rule that termination was in the children’s best interest.
What is the difference between guardianship and adoption? There are two key differences that have far-reaching consequences. First, adoption is permanent and guardianship is not quite permanent (even when called "permanent"). Second, in an adoption the birth parents become legal strangers to the child while the adoptive parents become the legal parents as if they had given birth to the child. In a guardianship, the birth parents still have parental rights and the guardian or guardians are not considered the child’s parents.
In an adoption, the birth parents have no rights or responsibilities. The adoptive parents have all rights and responsibilities that once belonged to the birth parents. For example, if the adoptive parents divorce, the family court will have to decide legal decision making, parenting time, and child support between the adoptive parents as if the child were their natural child. Adoption is a life-long, permanent relationship. The adoptive parent decides the child’s legal name, which is usually the adoptive parents’ name. The birth parents do not have the right to have any contact with the child. Therefore, the adoptive parents decide whether the birth parents will have contact with the child.
In a guardianship, the parents usually retain their parental rights. The guardian has the responsibility and right to the child’s care, custody, and supervision. The guardian acts under the juvenile court’s supervision, and must make regular reports to the court, unlike in an adoption. A guardianship is not permanent, and the juvenile court may transfer or terminate the guardianship. The parents may have visitation rights (unless the court orders otherwise) and may still make some decisions, such as religious training, but the guardian will make most other decisions, such as education, health, welfare, and most other decisions. The child will usually keep his or her name and the parents may ask the juvenile court to terminate or transfer the guardianship.
In an adoption, the child (and the child’s descendants) has the same rights to inheritance as children naturally born to the parents. If the parents dies without a will, the adopted child and the adopted child’s children are treated as if the adopted child were born to the parents. If there is a valid will, the will establishes the adopted child’s inheritance rights just like children naturally born to the deceased. The child does not have the right to inherit from the birth parents and the birth parents do not have the right to inherit from the child (unless, of course, the birth parents have named the child as a beneficiary in a valid will or vice versa). Also, adoption assistance continues after the adoptive parents’ deaths or after the juvenile court terminates the adoptive parents’ rights.
In a guardianship, the child is not treated as the guardian’s child for inheritance purposes. The child is still the child of the parents. The child has no right of inheritance from the guardian unless through a valid will. Also, a guardianship subsidy ends upon the death or incapacity of the guardian. Finally, if the child dies, the parent has the rights to claim the body.
Thomas A. Morton is an Arizona adoption and guardianship lawyer. Adoptions and guardianships are one of the most rewarding areas of my practice because I am really helping a child.
Some appellate decisions just warm my heart. The Arizona Court of Appeals recently issued such a decision, Calvin B. v. Brittany B., and ruled against one of the most despicable types of parent: one who does everything he or she can do to limit, control, and even eliminate the other parent’s relationship with their child.
Calvin and Brittany divorced when their son was very young. They agreed to an arrangement wherein Brittany would have sole legal and physical custody of their son, but Calvin would have "liberal" parenting time as the parties agreed. Brittany then proceeded to limit Calvin’s contact with their son. As a result, Calvin sought the court’s help in securing more time with him. Over the course of the next several years, Brittany used orders of protection and other barriers to block Calvin’s parenting time. She also violated the court’s orders several times. Calvin, however, was not a model parent either, failing to exercise a lot of his parenting time, not immediately seeking enforcement of the court’s orders, and failing to take a parenting class that the court had ordered him to take.
Brittany eventually filed in juvenile court to terminate Calvin’s parental rights on the basis that Calvin had abandoned their child. The Superior Court granted the termination petition and Calvin appealed.
"Abandonment" means the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment. When circumstances prevent a parent from bonding traditionally with a child, the parent must act persistently to establish the relationship and vigorously assert his or her rights. Non-support alone does not establish abandonment.
This is the heartwarming part: the Court of Appeals overturned the Superior Court and cut right to the chase:
The record shows that for much of the period after the dissolution in 2008,
Brittany interfered with Calvin’s opportunity and ability to develop a normal
parental relationship with their son. A parent may not restrict the other parent
from interacting with their child and then petition to terminate the latter’s
rights for abandonment. For this reason, we conclude the record in this
unusual case lacks evidence sufficient for the court to conclude that Brittany
proved by clear and convincing evidence that Calvin abandoned his son.
The Court of Appeals also stated, "Having herself curtailed Calvin’s ability to develop a relationship with his son, Brittany did not prove by clear and convincing evidence that Calvin abandoned the child by failing to provide normal parental supervision," and "We cannot accept the proposition that the court acted properly in granting Brittany’s petition to terminate Calvin’s parental rights based on abandonment because he did not take legal measures to reduce the barriers Brittany erected to his ability to parent." In fact, the appellate court remarked that, given the hurdles that Brittany erected, Calvin’s ability to manage as many visits as he did manage was "remarkable." Also note that the Court of Appeals examined both parent’s behaviors: the court examined Brittany’s bad conduct but also scrutinized Calvin’s conduct in attempting to build a relationship with his son.
One may think that this is a no-brainer, but remember that the trial court granted the petition to terminate Calvin’s parental rights! The trial court judge didn’t get it. It took an appeal to set things right. Although Calvin ultimately did not lose his parental rights, he suffered in other ways, including not seeing his son for long periods, only seeing his son a little bit when he did see him, having his parental rights terminated for a time, the agony of the termination and appeals process, and the damage to his relationship with his son. However, Calvin could have avoided much of this by acting differently.
First, Calvin should have avoided a vague parenting time order. He agreed that he would see his son when the parties agreed (which really means whenever Brittany feels like it). If Calvin would have insisted on a set schedule in the Court’s order he would not have had to rely on Brittany’s willingness to allow him to see their son.
Second, Calvin should have followed the court’s orders. Calvin failed to pay most of his child support, which is a factor in abandonment cases. It also has consequences in non-abandonment cases. He also failed to take a parent information class and, when the Superior Court ordered that he could have more parenting time after he took it, he failed to take it for over a year! Furthermore, Brittany used this against him in the abandonment case. Had Calvin taken it the first time, or even the second time, he could have seen his son more and Brittany would have had less to use against him in the abandonment case.
Third, Calvin should have exercised all of the parenting time that the court allowed him to exercise. I never understand why people fight for parenting time, and then only use some of what they get or none at all. They are simply proving that the other party was right and hurting themselves in future court battles. More importantly, they are missing time with their children that they will never get again. Had Calvin used all of his parenting time, he would have never had to worry about the abandonment case.
Finally, Calvin should have rigorously enforced his rights. Calvin did eventually seek enforcement in the Superior Court, but that was after about three years of Brittany controlling and restricting his contact with their son. Had Calvin rigorously enforced his rights, he probably would have won the abandonment case at the trial court level or would not have had to face it at all. More importantly, he would not have missed out on so much time with his son. When the other parent behaves like Brittany behaved in this case, the only sensible course of action is to rigorously enforce your rights. It is aggravating, stressful, and difficult, but losing your child or losing a lot of time with your child for several years is much worse.
Don’t be like Calvin (or Brittany). If you need help not being a Calvin (or Brittany), I would love to talk to you. I am a Phoenix are family law and juvenile law attorney.
Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
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All information on this website is not, and is not intended to be, legal advice. You should consult an attorney for advice regarding your individual situation, as each case is different and contains different facts. I invite you to contact me and welcome your calls, letters and e-mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information until you establish an attorney-client relationship with me.
Attorney Thomas A. Morton is located in Phoenix, Arizona, and serves clients throughout Maricopa County, including Tempe, Mesa, Scottsdale, Glendale, Peoria, Gilbert, Chandler, Goodyear, Surprise, Avondale, Cave Creek, Carefree, New River, Anthem, Black Canyon City, Sun City, Laveen, Buckeye, Goodyear, Litchfield Park, Tolleson, Youngtown, Queen Creek, Guadalupe, Fountain Hills, Paradise Valley, Wickenberg, Apache Junction, and El Mirage.