grandpaSecond 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.

SEVERANCE FOUND

In a case where 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, mother sent 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.