Terminating Parental Rights
This article will explain terminating the rights of a biological parent under the following two different circumstances. First, by one biological parent terminating another biological parent’s rights and second, by a third party terminating a biological parent’s right.Biological Parent Terminating Parental Rights of Another Biological Parent
The highest court in Maryland, the Court of Appeals, has determined that one biological parent CANNOT terminate another biological parent’s parental rights. In a case from 1995, a mother attempted to adopt her three children in an effort to terminate the father’s parental rights to those children. The Court of Appeals ruled that a biological parent cannot adopt his or her own children even if the other biological parent consents to said adoption. Further, the court found that the children did not acquire any additional social benefits as a result of the adoption that they did not already possess as the natural, legitimate children of the parent. Natural or biological parents are the only people that are legally responsible for the support and well being of their children. One biological parent terminating another biological parent’s rights deprives the children of one of the people legally responsible for some part of the financial burden of their care. The State of Maryland has a strong interest in requiring a parent to support his or her child; otherwise, the State could be responsible in whole or in part for the support of a minor child even if a biological parent is financially able to meet those obligations. Essentially, the State of Maryland does not want to be financially responsible for a child and let the other parent bargain away or waive their duty to their children.Third Party Terminating Biological Parental Rights of Biological Parent(s)
The third party must petition the court for guardianship/adoption of an individual before that individual is 18 years old. The third party must also petition for the biological parent(s) rights to be terminated. It is also possible for the living biological parent(s) to consent to the adoption of their child (ren).
The living biological parent(s) may consent to the adoption in writing, knowingly and voluntarily, or by failure to file a timely notice of objection after being served with a show cause order. The child in question may not object to the biological parent consenting to terminate their rights.
An individual may also file a petition to terminate any living biological parent(s) rights in order to adopt or be granted guardianship of the minor children. The local Department of Social Services may also file a petition to terminate parental rights. If the parent does not consent to the termination of rights then a hearing is held in the Juvenile Court of the jurisdiction. There are two ways to prove the parent’s rights should be terminated: exceptional circumstances exist and/or the parent is unfit. The petitioner must prove the parent is either unfit or that there are exceptional circumstances for termination of parental rights by clear and convincing evidence. Clear and convincing evidence is a higher standard than preponderance of the evidence but less than beyond a reasonable doubt. It means substantially more likely than not.
The standard courts use to make this decision is the best interest of the child. The presumption favors a continuation of the parental relationship unless the petitioner can rebut the presumption and show the parent is unfit to remain in the parental relationship with the child or to constitute exceptional circumstances that would make a continuation of the parental relationship detrimental to the best interests of the child. The court will take some factors into consideration including: the extent, nature, and timeliness of services offered by a local department of social services to facilitate reunion of parent and child; the extent a parent fulfilled their obligations to any social services agreement; the extent to which the parent maintained contact with the child, social services, and child’s caregiver; parent’s financial contribution to child’s care; presence of parental disability that prevents parent from consistently caring for their child; and generally what efforts the parent is making to be reunited with their child. Other factors considered include the child’s emotional ties and feelings toward the child’s parents (and severance of the parent-child relationship) and the child’s adjustment to school, home, the community, and placement.
Parental unfitness to remain in the parental relationship is clear and has been litigated extensively. Courts will take into consideration whether the parent has abused or neglected the child or a minor and the seriousness of that abuse or neglect. Another factor is a mother testing positive for drugs when admitted for her child’s delivery, upon the birth of that child whether the child tested positive for drugs, and whether the mother refused the level of drug treatment recommended by an addictions specialist. An additional consideration by the court is whether the parent subjected their child to chronic abuse, chronic and life-threatening neglect, sexual abuse, or torture. Maryland courts also take into account whether the parent has been convicted of (in any state or court of the U.S.): a crime of violence against one of their children; or the specific child in question (this includes any crime of aiding or abetting, conspiring, or soliciting of any crime described previously). The last factor is whether the parent has involuntarily lost parental rights to a sibling of the child.
The second way to terminate parental rights is to prove by a clear and convincing evidence that exceptional circumstances exist that would make a continuation of parental rights detrimental to the best interest of the child. What constitutes exceptional circumstances is not as clear as unfitness, but there has been some litigation on the subject. The same considerations under MD Code, Family Law, § 5-323 are used to determine whether exceptional circumstances exist to terminate a parental right and grant adoption. In addition to the considerations in the statue, the courts have identified some other factors to take into consideration when determining whether exceptional circumstances exist. These factors include: the length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect of the child of a change of custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of ties between the child and the third party custodian, the intensity and genuineness of the parent’s desire to have the child, the stability and certainty as to the child’s future in the custody of the parent. The passage of time when the parent and child are apart is not enough without other findings to establish exceptional circumstances. However, the passage of time must be present in order for exceptional circumstances to be found. Further, the court must explore the children’s feelings and emotional ties with the biological parent through discussion with the children or through the testimony of an expert.
Fred Antenberg has been practicing in the area of Family Law for over 30 years in Howard County and surrounding counties of Central Maryland. Contact Fred for a free initial consultation and for further advice regarding termination of parental rights by calling 410 730 4404.