Adoption, but first… Severance
What is a Severance of Parental Rights?
Absent the most extreme and unique of circumstances, you cannot adopt a child unless one or both parents’ rights have been severed. This is because you are asking to be the new legal parent. So, what is severance or termination anyway? These two terms are used interchangeably and, in the State of Arizona, essentially mean that you are trying to sever or terminate the rights of a legal parent as they relate to their child.
The right of a parent to bring up their child is a constitutional right protected by the Due Process clause of the 14th Amendment, so these cases are not taken lightly. Termination proceedings are complicated and have a life-long impact on the parent(s) and the child. Severing parental rights can even affect the rights of the child to inheritance and other benefits.
Who Can Request a Severance of Parental Rights?
Per Arizona Statute any third party that has a “legitimate interest” in a child may ask for severance of parental rights. Third parties could include foster parents, stepparents, grandparents, or other relatives, or even a child’s physician. Essentially, anyone with a legitimate interest or who cares about the child can petition the Court to sever a parent’s rights.
The State of Arizona can also seek severance of parental rights and often does so in dependency cases. This article focuses more heavily on severance sought by private individuals, rather than the State. When the Department of Child Safety (DCS) is involved, there may be other factors to consider. Please contact our office for advice specific to those circumstances.
Just because you can make the request to sever a parent’s rights doesn’t mean that you should – especially without first consulting an attorney. If you request to sever a parent’s rights, you typically need to be prepared to participate in a social study and should first ensure that you are able to obtain fingerprint clearance. There is a plethora of other facts to consider and a consultation with one of our attorneys is the best place to start.
Will the Court Terminate Parental Rights for Just Any Reason?
No. The Court is only allowed to sever parental rights on the grounds set forth by Arizona statute (A.R.S. § 8-533). The grounds listed below do not constitute an exhaustive list of all grounds for termination. Please consult with our office to determine whether the facts of your case fall within the statute that the Court will consider. Some of the statutory grounds (in abbreviated format) include:
- Abandonment of a child;
- Willful abuse of a child;
- Inability to parent a child due to mental illness/deficiency or a chronic history of substance abuse with evidence that it will continue for a “prolonged indeterminate period”;
- A parent being deprived of civil liberties due to the conviction of some felonies (e.g., murder of the other parent or another child of the other parent);
- A parent who became the parent of a child by clear and convincing evidence of sexual assault of the other parent; and
- Consent of the parent(s).
The above-listed grounds may seem simple to prove, but they are not. There are statutory
definitions, case law, defenses, and procedural rules that you must understand and apply before determining whether you have grounds for termination of a parent’s rights. Additionally, even if you have reasonable grounds to proceed forward, you must also be able to prove that terminating the parent’s rights is in the child’s best interests. Our office will help you assess “best interests” and determine what you can do to try to prove that to the Court.
What Does the Termination Process Entail?
Please call our office to determine if now is strategically the best and most appropriate time to file. If you decide to proceed, you can file a petition and start the Court case. After that, you will need to serve the parents and potentially additional parties. Personal service, in and of itself, can be a complicated process, especially when you cannot locate an individual. Our office can help you move through these initial steps efficiently.
As stated above, you will likely be required to pay for and obtain a social study (“home study”) that details the background of the involved parties including yourself, criminal records, possibly medical/mental health records, and any other relevant documents. They will also likely conduct interviews with the parties, the child, and other people with relevant information. That study, written by a licensed, independent, and qualified individual will assess grounds, best interests of the child, and will ultimately provide the Court with a recommendation as to whether they believe parental rights should be terminated.
If the matter is contested, you may be required to participate in mediation and in pre-hearing conferences and other hearings. Ultimately, your case will proceed to trial where testimony and evidence (including the social study) will be presented to a judge. After hearing the evidence, the judge will decide whether to terminate parental rights of one or both parents. Usually, the judge will write a ruling that will explain their reasoning and whether the termination is granted.
If I Prevail in Terminating a Parent’s Rights, Can I then Adopt?
My lawyer answer is “depends” as there are some unique scenarios, but generally, YES! Stay tuned for our next blog regarding adoption.