First step in severance or termination of parental rights
A parent, or any person or agency who has a legitimate interest in the welfare of a minor child, may seek to terminate or sever a natural parents’ rights for various reasons. The motivation to seek termination of a natural parents’ rights may include abandonment, substance abuse, mental health issues, or domestic abuse. Whether the petitioning party is a parent, relative, foster parent, physician, or a private licensed child welfare agency, the request must be filed in juvenile court.
Termination of parental rights in Arizona is a two-step process. The first step required will be addressed here. First, it must be established by clear and convincing evidence that at least one of the grounds set forth in A.R.S. 8-533(B) exists. The statute lists several bases but the most common include:
- The parent has abandoned the child.
- The parent has neglected or willfully abused a child.
- The parent is unable to discharge parental responsibilities because of mental illness, mental deficiency or a history of chronic substance and there is a reasonable belief the condition will continue for a prolonged indeterminate period.
Arizona law defines abandonment as:
[T]he 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.
Abandonment is not measured by a parent’s subjective intent or the parent’s state of mind, but by the parent’s actual conduct – whether a parent has provided reasonable support, maintained regular contact, made more than minimal efforts to support and communicate with the child, and maintained a normal parental relationship.
For example, imagine a case where the parents were divorced when the child was one year old. In the divorce decree, the court grants the parents joint custody or legal decision-making. But over the next several years, mother doesn’t provide support, she makes only minimal efforts to communicate, and father is granted sole legal decision-making. Mother files a couple of petitions with the court to reinstate the joint legal decision-making but never follows through – never shows up for court and never contacts the child. It is likely the court will find, Mother has abandoned the child.
The court will consider all the evidence and make a decision as to whether the requirements of the statute have been met by clear and convincing evidence. Only then, will the court consider the second step of the analysis.
It is important to discuss all the factors with an Arizona licensed attorney, familiar with these issues. If grounds for severance are determined, the next step is to show by a preponderance of the evidence that severance is in the child’s best interests. Find information about the crucial second step in our next post.
Second step in severance or termination of parental rights
Previously, we discussed the first step in severing or terminating a natural parent’s rights in Arizona. But once an interested party has gotten past this first requirement, what’s next?
If the juvenile court finds grounds for severance, the next step is to show by a preponderance of the evidence that severance is in the child’s best interests.
In considering the child’s best interest, the court presumes the parent’s interests and the child’s interests are opposed since the parent was already found unfit under the statute. While an unfit parent maintains a constitutional interest in the care and custody of his or her child , the importance and value of that parent’s interest is substantially reduced. Essentially, the court is not going to consider the wants or requests of the parent. Instead, the court focuses on the child’s interest in a safe and stable home life.
The court will not automatically find a child will benefit from a termination or severance simply because the child has been abandoned or the parent is unfit. Instead, the court must identify an affirmative benefit to the child that will result from the termination. Or, the court may identify how the child would be harmed if the relationship with the parent is continued. The court engages in what’s called “a balancing test,” and considers all of the evidence.
Some of the factors the court will consider include:
- whether an adoptive placement is immediately available,
- whether the existing placement is meeting the child’s needs,
- whether the child is adoptable,
- whether the child wants to be adopted,
- whether the parent has made post-petition efforts to reestablish a parental relationship,
- whether removing the child from familiar surroundings and caregivers could cause emotional trauma to the child, and
- whether the child would be at risk of abuse or neglect if placed in parent’s care.
In a case where a mother left Pennsylvania and moved to Arizona, with her 10-year-old child, after domestic violence occurred between the parents, the Arizona court ultimately found severance was in the child’s best interest. Mother moved to Arizona to live with her mother or the child’s maternal grandmother. A few months later, the mother sent the father an email that maternal grandmother wanted to adopt the minor child. Father did not agree to the adoption although he only had limited contact with the child.
Maternal grandmother filed a petition to sever or terminate father’s parental rights based upon neglect, willful abuse, and inability to care for child due to drug dependence. Father appeared at the initial hearing and was told he MUST appear at the next hearing. One month later, during mediation father agreed to contact the child, as recommended by a therapist. However, father only contacted child one time and failed to appear for the final court hearing. The court found maternal grandmother met the first step required under the Arizona law.
Under these facts, the court found severance was in the child’s best interest as an adoptive plan was in place, the child had lived with maternal grandmother for a significant period of time, and grandmother was able to meet the child’s social, academic, emotional, and financial needs.
NO SEVERANCE FOUND
In a case where the court found mother abandoned child for purposes of severance, it also found severance was not in the child’s best interest. In this particular case, father filed a petition seeking termination of mother’s parental rights when the child was 11 years old. The first 5 years of the child’s life, she lived with mother and had parenting time with father. After 5 years, mother fell and was injured. Mother claimed she had a seizure due to medical issues while father claimed mother’s seizure was caused by an overdose.
While mother was hospitalized, father obtained an order of protection against mother, as well as sole legal decision-making (custody) without notice. Although father let daughter visit and spend time with mother’s family, he specifically required mother could not be involved. Despite this condition, mother’s family would occasionally allow mother to spend time with daughter or send daughter gifts from mother.
Several years later, father met his girlfriend and after living together for 3 years, they were married. In the following 6 years, mother made attempts to contact daughter through various means. Father saw a text message mother sent to daughter and threatened to stop any visitation with mother’s family. Shortly thereafter, father filed a motion to terminate mother’s parental rights and the court found father met the first step in that he established mother had abandoned the child.
But father could not establish termination was in the child’s best interest. The court found stepmom was meeting the child’s needs, the child was bonded with stepmom, and stepmom was immediately available as an adoptive parent. But, the court didn’t find the child would be harmed by a continued parent/child relationship with mother. The court also found the child’s continued relationship with mother would not deprive the child of her beneficial relationship with stepmom.
It appears, if a parent makes their best efforts, the court will consider it is in the child’s best interest to have as many involved, interested parties as possible. And, who doesn’t want that?
Severance or termination cases are very fact specific. It is important to discuss all the facts and considerations with an Arizona licensed attorney familiar with these issues.