Termination or Severance of Parental Rights
April 11, 2022
Under Arizona law, a child generally has two legal parents who are listed on the child’s Arizona birth certificate regardless of whether those parents are married, divorced, or were never married. Parental rights are different and separate from custody rights. Normally a custody case (or a divorce with children) ends with a custody order that orders how legal decision-making and parenting time are allocated between the parents. If a parent has been ordered no parenting time, or if they have never exercised any court-ordered parenting time, or even if they’ve never seen their child, a parent normally still has parental rights in Arizona unless their rights are severed or terminated by the juvenile court. Parental rights cannot be terminated in a divorce or custody case – instead, if you want to terminate a parent’s rights (also known as “severance of parental rights”), you must file a petition to terminate their parental rights in the juvenile court.
Who Can File a Petition for Termination of Parental Rights?
In many circumstances, a petition for termination of parental rights is filed by one parent against the child’s other parent. However, Arizona’s severance laws are very broad in allowing nearly any person connected to the family to file for termination of parental rights. For example, a child’s aunt, uncle, grandparent, or other custodian can file a petition to terminate the parental rights of one or both of the child’s legal parents. This article only covers termination of parental rights and not adoption; adoption cases are separate from custody and severance cases, and a minor child generally cannot be adopted in Arizona unless the parental rights of at least one of the child’s parents have already been terminated.
Termination cases can begin in a variety of ways. For example, a termination case can be filed by a family member or other person regardless of whether there is a current or past custody case involving the family; parental rights can also be terminated as a result of a dependency case filed by the Arizona Department of Child Safety (formerly known as “CPS”). The 928 Law Firm is experienced with handling a variety of termination cases; we can represent the petitioner in the case, or we can represent a parent whose rights are in danger of being terminated.
Grounds for Termination
In order to terminate somebody’s parental rights, the person seeking termination must prove to the court that (1) at least one legal basis for termination exists under Arizona law and (2) termination of the parent’s rights is in the child’s best interests. The most common grounds for termination of parental rights are:
The parent has not had (nor tried to have) any meaningful contact with the child for at least six months;
The parent has an ongoing problem with drugs, alcohol, or mental health that prevents them from meeting their child’s basic needs;
The parent is in prison and will likely remain there for a long time; or
The parent has severely abused the child (either physically or emotionally).
The freedom to care for a person’s biological child is a critical legal right, and for this reason, the laws of Arizona are written so that termination cases are difficult to win. In most cases, the petitioner seeking termination will need some combination of police reports, Department of Child Services records, counseling records, criminal records, and emails and text messages as evidence supporting termination. One practical exception is when the petitioner is alleging that the parent has abandoned the child for at least six months; in these cases, the petitioner generally testifies from their knowledge that the parent has not been around or attempted to contact their child for at least six months, and then it would be up to the parent to provide evidence that they have not abandoned their child.
Court Procedures in Termination Cases
When filing a petition to terminate somebody’s parental rights, the petitioner or their lawyer must file the petition along with a court form known as a Notice of Initial Termination Hearing. Soon after the petitioner files these papers, the court will set a date for the Initial Termination Hearing, write the date on the notice of hearing, and give it back to the petitioner or their lawyer. Next, the petitioner or their lawyer must “serve” the petition and notice on the parent in a legally-acceptable manner.
If the parent was served properly and does not appear at the hearing, the court may move forward with terminating their rights based on their failure to appear. Even if the parent does not show up at court to oppose termination, the petitioner still must present evidence to the court showing that termination of parental rights is in the best interest of the child. Typically the child’s current custodian testifies about the past, present, and expected future circumstances involving the child and the family. This could include opinions about why the parent seems unlikely to return to the child’s life, and avowals that some other person (such as the child’s stepparent) is able and willing to adopt the child if the parent’s right is terminated.
On the other hand, if the parent shows up for the Initial Termination Hearing, they can ask the judge to appoint a court-appointed lawyer to help them oppose the termination of their parental rights. If the court determines that the parent cannot afford a lawyer, one will likely be appointed to represent them for free. This happens because parental rights are fundamental legal rights in America, and courts must provide free court-appointed lawyers to represent indigent persons, similar to how free public defenders are often appointed in criminal cases. Meanwhile, the petitioner seeking termination is not entitled to a free lawyer because their rights are not in jeopardy; accordingly, The 928 Law Firm can be a critical advocate for petitioners in termination cases since a petitioner would otherwise likely have a difficult time winning a case against an experienced court-appointed lawyer for the parent facing termination.
If the appears at the Initial Termination Hearing and objects to their rights being terminated, then at some point the court will likely set a trial. When this happens, the petitioner will be required to gather and “disclose” to the other side all of the witnesses and exhibits that they plan to use at trial. Arizona does not offer jury trials for termination cases; instead, a judge will hear the evidence and decide whether the petitioner has proven their case for terminating the parent’s rights. If the judge finds in the petitioner’s favor and orders termination or parental rights, the parent will have an opportunity to “appeal” the decision to a higher court which could overturn the termination order. As with the trial phase described above, the parent will likely have a free court-appointed lawyer to handle their appeal, while the petitioner will have to represent themselves or hire The 928 Law Firm or another private lawyer to represent them. Appeals in termination matters can six months or more to complete. The parent’s rights are technically remain terminated while an appeal is pending, but the termination can be undone if the appeals court overturns the trial court’s termination order. If the appeals court does not overturn the termination order, then the case is finally finished and the termination remains final.
The Indian Child Welfare Act
The information and procedures described above pertain to cases where the child involved is not enrolled (nor eligible to be enrolled) in any federally-recognized Indian tribe. On the other hand, if a child who is the subject of a termination case is a tribal member (or eligible to be enrolled), then the case becomes much more complicated and harder to win. For example, a tribe has a right to be notified of a pending state-court termination case and a right to appear in that case (and potentially oppose the termination) if a child in the termination case is a member of that tribe. If a child lives (or previously lived) on their tribe’s reservation, then Arizona’s courts may not even have jurisdiction (authority) to handle the termination case at all. In some cases a child is eligible to be enrolled in multiple tribes, which could mean that multiple tribes may show up in the termination case and oppose termination. With that said, The 928 Law Firm is experienced in Indian Child Welfare Act (“ICWA”) cases, and regularly represents clients in ICWA termination cases.
Cases for termination of parental rights are high-stakes complicated cases which, by design, are difficult to win. Nonetheless, termination of parental rights is the best thing for the child in some circumstances, and in these cases, you need a law firm that is experienced with termination cases so that you have the best opportunity to succeed. If you think termination of parental rights is in your child’s best interest and you have evidence showing that there are legal grounds for doing so, please contact The 928 Law Firm right away to schedule a consultation.