Chapter 5 : Section 3

Terminating Parental Rights

Procedures

Considering Termination of Parental Rights

To determine that termination of parental rights is in the child's best interest, consider all of the following factors:

• the child's permanency goal;

• the parent's success in achieving the behavioral changes outlined in the case plan and likelihood of imminent family reunification;

• the parent's willingness to parent the child;

• the child's age and willingness to consent to adoption (a child who is 12 years of age or older must consent to the adoption in open court);

• whether reunification services were ordered, but not provided;

• whether the services that were provided were culturally relevant;

• whether the provider was successful in engaging the family in the services;

• the availability of a safe, permanent home for the child or ability to identify one;

• the effects of removal from the current placement on the child’s long term emotional well-being and the caregiver’s willingness to adopt;

• compliance with Indian Child Welfare Act (ICWA) requirements including:

  • active efforts to reunify the child with the parents;

  • placement of the child according to ICWA placement preferences; and

  • ability to provide testimony that meets the standard of evidence; and

• applicability of the grounds for termination and supporting evidence.

Convene a case conference to determine whether termination of parental rights is in the child's best interest. If there may be sufficient grounds, include the assigned Assistant Attorney General, child's attorney and/or GAL, DCS Specialist and DCS Program Supervisor and any other team members who may have pertinent information needed to make the determination.

The DCS Program Administrator or designee must approve a recommendation that termination of parental rights is not in the child's best interests.

Termination of parental rights is necessary when:

• the permanency goal for the child is adoption and the parent is not available or willing to consent to place the child for adoption; or

• the permanency goal for the child is something other than adoption and a continued legal relationship between parent and child would be harmful for the child.

The motion for termination of parental rights must account for any parent who has not signed a consent to place the child for adoption or whose death is not verified, unless a court order of paternity or adoption has been issued. This includes:

• any man married to the mother at the time of conception, during the pregnancy or at birth of the child, unless his paternity has been excluded or another man's paternity is established;

• any parent named on the child's birth certificate;

• any man named by the mother or other person as the biological father;

• any man named by the mother as possibly being the biological father;

• any man claiming to be the biological father;

• anyone who has legally adopted the child;

• any man who has filed a notice of claim of paternity for this child with the Putative Father Registry; and

• John Doe, when no father is identified on the birth certificate or by the mother, when the mother is unsure of or does not know the name of the father; and/or when multiple fathers are identified and there is the possibility of unknown potential fathers.

If a court order of paternity or adoption has been issued, only the person named in this order needs to be included in the termination petition.

If all parents have signed a valid Consent to Place Child for Adoption, CSO-1040A, a motion to terminate parental rights need not be filed, unless any parent has attempted to revoke the consent. If a motion to terminate parental rights is to be filed on any parent, the parent who has signed a consent may also be included in the severance action.

The department will provide the birth parent(s) the opportunity to complete the Birth Parent(s)’ Release of Identifying Information, CSO-1042A, to be placed in the child’s adoption record indicating the parent’s preferences regarding the sharing of information with the adoptive child and/or parent.

No confidential information relating to the adoption will remain in the parent's case record.

If the child is or may be an Indian child, consult with the Attorney General's Office regarding requirements of the Indian Child Welfare Act (ICWA) before planning to pursue termination of the parent-child relationship. See Termination of Parental Rights of an Indian Child.

Proceeding with Termination of Parental Rights

When the recommendation is made to proceed with termination of parental rights, complete the following:

• an extensive and documented search for relatives, if the child is not already placed in a permanent kinship placement, or placement considered to be in the best interest of the child, including submitting a locate referral to search for any missing parents and family members (follow procedures in Locating Missing Parents & Family for Notification);

• consider convening a family meeting to identify relatives or other significant persons who can provide a safe, permanent home for the child, if no permanent placement is already identified;

• meet with the assigned Assistant Attorney General to discuss the case and prepare for its presentation in court;

• inform the parent(s) of the pending court proceeding to terminate the parent-child relationship, the consequences of the proceedings and actions that the parent(s) must take including responding to the motion through the parent's attorney or requesting the court appoint an attorney, if not already appointed.

When Termination of Parental Rights is Complete

Create a new Adoption case record for each child whose parental rights have been terminated and the case plan goal for the child is adoption, even if the order terminating parental rights has been appealed. The parent's case record may remain open to provide ongoing case management and services to other family members or, if no services are planned, the case record is closed.

Create the new hard copy adoption case record and include the documents listed in Documents Needed for Adoption File, CSO-3208.

Documentation

When applicable, document the compelling reason that termination of parental rights is not in the child's best interests in the Case Plan.

Document grounds for Termination of Parental Rights in Notes designated as Case Conference type.

The type of documentation needed for Termination of Parental Rights depends on the grounds upon which termination will be sought such as the following:

• Abandonment: Requires documentation of diligent efforts to locate the parent, to remain in contact with the parent, and to rehabilitate the parent. Document that the parent was informed of the child's out-of-home placement and how the parent could provide reasonable support and maintain regular contact with the child. This requires documentation by foster parents of all contacts between the parent and child and the parent and foster parents.

• Document if an alleged parent, who is not the child's legal parent, failed to take a test requested by the Department or ordered by the court to determine if the person was the child's biological parent unless good cause is shown by the alleged parent for that failure.

• Abuse and neglect: Requires timely documentation of all incidents of abuse and neglect, including medical reports, police reports, and written professional opinions. Include information on the availability of eyewitnesses for testimony in court.

• Mental deficiency, mental illness or substance abuse: Requires reports that address the nature and severity of the condition, how it interferes with parenting, its likely duration and the possibility of effective treatment; also requires a psychological or psychiatric evaluation of the parent that is less than one year old.

• Incarceration-nature of the felony: Nature of felony conviction requires documentation of conviction of murder or voluntary manslaughter of another child of the parent; conviction of a felony assault that resulted in serious bodily injury to the child or another child of the parent; and aiding, attempting, conspiring or soliciting to commit murder or involuntary manslaughter of another child of the parent. All are grounds for severance regardless of the length of sentence.

• Incarceration- length of sentence: Length of sentence requires documentation of sentence expiration and the length and strength of parent-child relationship at the time of incarceration; the degree to which the parent-child relationship was continued and nurtured during incarceration; the age of the child and likelihood that incarceration will deprive the child of a normal home; the availability of another parent to provide a normal home life; and the effect of the deprivation of a parental presence on the child.

• Length of time in care: Requires documentation of contacts with the parent as well as of services offered and provided; documentation that the parent was informed of the plan and the Department's expectations; and documentation of the parent's progress or lack of progress in addressing the risk factors that prevent the parent from caring for the child safely at home.

• Length of time in care for a child under age 3: Requires documentation of contacts with the parent(s) and the services offered and provided within the first 6 months; documentation that the parent(s) was informed of the case plan and the Department’s expectations; documentation that the parent(s) substantially neglected or willfully refused to remedy the circumstances that caused the child to be in out-of-home placement including refusal to participate in reunification services offered by the department; and documentation of the parents’ progress or lack of progress toward addressing the safety threats that prevent the parent(s) from caring for the child safely at home.

• Relinquishment: If including a parent who has signed a consent to place the child for adoption in a petition to terminate the other parent's rights, submit the original, signed relinquishment forms to the court.

• Paternity action: If termination is sought due to a potential father's failure to file a paternity action within 30 days of notice, then proof of legal notice, is required.

• Notice of Claim of Paternity: If termination is sought due to the putative father's failure to file a notice of claim of paternity, then proof from the Putative Father Registry of failure to file notice is required.

• Unknown Parent Abandonment: Requires documentation of efforts to identify and locate the unknown absent parent. Document contacts (letters, emails, telephone calls, personal interviews) with the mother or father, relatives, friends, neighbors, etc. who may know the identity and whereabouts of the unknown absent parent of the child.

• Prior Termination: Requires documentation of the prior termination including a certified copy of the Order of Termination, a copy of the petition or motion, and a copy of the social study or report that was filed with the petition or motion. Copies of current medical records, police records and psychological evaluations should also be obtained. A psychological assessment that the parent is currently unable to discharge parental responsibilities due to the same cause cited in the previous determination may be necessary.

• Re-entry: Requires documentation that the Department previously made diligent efforts to provide appropriate reunification services through: contacts with the parent; services offered and provided; evidence that the parent was informed of the plan and the Department's expectations; and documentation of the parent's progress toward addressing the risk factors that caused the previous removal. A copy of previous and current dependency petitions; a copy of the court order that previously returned the child to the parent's legal custody; and the current order removing the child are also required. Copies of current medical records, police records and psychological evaluations should be obtained. A psychological assessment that the parent is currently unable to discharge parental responsibilities should also be provided.

Effective Date: February 1, 2021

Revision History: November 30, 2012, August 03, 2018