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.
[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.