Vol. 6, No. 1
February 2001

Termination of Parental Rights: Legal Issues

Editor’s Note: This article is not intended to replace the advice of an attorney, nor does it constitute legal counsel. It is simply an overview of the broad issues social workers will encounter when considering termination of parental rights. It was not written by an attorney.

Termination of parental rights (TPR) in North Carolina is guided by federal and state law. To promote the well being of children and to minimize the harm done to children and their families, we must understand this procedure and the laws that guide it.

Federal Laws Guiding TPR

On the federal level, social workers should be familiar with the Adoption and Safe Families Act of 1997 (ASFA), the latest in a series of federal laws designed to clarify the most important and controversial issues in termination procedures and standards (Genty, 1998). ASFA amends the Adoption Assistance and Child Welfare Act of 1980, also known as P.L. 96-272, which had previously been the federal law most relevant to TPR. Under P.L. 96-272 agencies were required to make “reasonable efforts” to preserve families. This was the term lawmakers chose to help agencies balance parents’ basic right to raise their children with the right of children to be safe.

ASFA amends the reasonable efforts requirements in two ways. First, it states that the “child’s health and safety shall be the paramount concern.” Second, it allows agencies to ignore reasonable efforts when a parent subjects the child to aggravated circumstances (e.g., torture, abandonment, chronic abuse, etc.) as defined by state law, or when a parent’s rights to another child have been involuntarily terminated.

ASFA also includes very specific requirements about TPR designed to shorten the time children spend in foster care. ASFA requires states to seek termination:

When a child has been in the custody of the state, in foster care, for 15 of the past 22 months
When a court rules that a parent has killed or tried to kill another child, or severely assaulted a child
When a court finds the child to be an abandoned infant

The implications of these requirements are broad and far-reaching. Incarcerated parents, for instance, or those with severe medical or psychological impairments, may be unable to care for their children for more than 15 months. Thus, the state would be required to seek TPR.

There are exceptions to ASFA’s rules. A termination hearing does not have to be brought if the:

Child is being cared for by a relative (Note: NC has modified this exception. It requires that the “permanent plan be that the child is in the guardianship or custody of a relative “or other suitable person.”)
State can document a compelling reason that termination would not be in the child’s best interest
State admits that it has not provided the family of origin with the services state law requires

NC law [G.S.7B-907(d)] requires court approval to confirm that these exceptions exist; ASFA merely requires they be documented. Only in the most severe cases can reasonable efforts to preserve or reunite the family be ignored (Genty, 1998).

North Carolina Laws Guiding TPR

TPR is also guided by state law. N.C. General Statute Chapter 7B lays out the general procedure and requirements for termination. Court decisions, however, also set precedents for termination procedures. Consulting your agency’s attorney is the best way to prepare to meet the current standards as decided by case law precedent.

The first step in termination is filing a petition with the court. This petition can be filed by a parent, a court-appointed guardian of the child, a guardian ad litem, DSS, anyone with whom the child has lived for a continuous period of two years or more, or anyone who has filed a petition for adoption of the child.

After petition, the courts hold a preliminary hearing. Once the termination procedure begins, the court must decide two things: whether the petitioner has shown the existence of one or more grounds for TPR, and whether termination of the parents’ rights is in the child’s best interest.

More specifically, based on statute and relevant case law precedents, the evidence should answer these questions, excerpted from the Malpass and Thompson’s (2000) training course, Case Building Toward Permanence:

Regarding Termination:

Have all appropriate services been offered to the parents in a timely manner?
Have the parents responded in a way that demonstrates they are now able to provide at least a minimally sufficient level of care for their children?
If the child has special needs, are the parents able to meet those needs at the time of the TPR hearing?
Is there reason to believe that the parents could materially improve the conditions or behavior that led to the removal of their child within the next three months? Can any improvement be expected to last?
What type of relationship have the parents maintained with their child since removal?
What progress or problems has the child experienced while in foster care?

Regarding the Child’s Best Interest:
• What can we offer the child that is better than continued foster care?

— Are there foster parents willing to adopt the child?
— Do we have other adoptive parents waiting? What is our plan to find them?
— Have we had success in placing children of the same age, race, or special needs?

• Have we looked at relatives?

— Can they adopt?
— Can they maintain contact?
— Will they give “blessing” for the adoptive placement?
— Will siblings remain together? Should they?

• Are there people to whom the child is emotionally attached?

— How much longer must the child wait for a permanent placement?
— What percentage of his life has been spent in foster care?

• What will happen if TPR is not granted?

— Who will “parent” this child when he or she is an adult?
— Will the child become “nobody’s child” in long-term foster care? (see The Link Between Adoption and Successful TPR )

At the TPR hearing DSS will be required to provide a permanency plan to the court. The grounds for termination in North Carolina are outlined in the Grounds for TPR in North Carolina . As you look at this sidebar, note that poverty, incarceration, mental illness, substance abuse, and “immoral” behavior are not reasons in themselves to terminate parental rights. If a petition for TPR is to be successful, Malpass and Thompson say, it should clearly demonstrate, as in an “equation,” the relationship between parental behavior and the effect on the child. Thompson says, “I cannot imagine even initiating a TPR petition unless that equation exists and is reflected in court orders.”

An example of such an equation might be: parent repeatedly abandons and neglects child due to a combination of substance abuse and mental illness. This contributes to a level of parental care that is below what is minimally adequate—that is, that negatively affects the child’s safety and development. DSS’s thorough attempts to help the parent have failed. Continuing existence of causal factors (substance abuse and mental illness) supports a decision for TPR.

Thus, the existence of a ground for termination does not guarantee parental rights will be terminated. For example, past abuse or neglect, though grounds for termination, may not successfully support a TPR petition if the court believes the parent has made substantial improvement and can now or in the near future parent the child adequately, or if the court does not find that termination is in the child’s best interest. Appellate court decisions have made it clear, however, that a parent cannot avoid termination by merely making sporadic efforts to improve; those efforts must result in tangible progress in the parent’s present ability to care for his child.

All the North Carolina general statutes are available online. Having a copy of N.C.G.S. Chapter 7B in your office is a good idea.

After termination, the work of DSS is far from over. Permanency plans are subject to court review every six months until the child is placed and an adoption petition filed. Social services is expected to find a permanent home for children, assure the safety of the child in that home, and follow up with the family for an extended period.

Adoption assistance during this phase is critical. To learn more about this topic, consider attending Financial and Legal Aspects of Adoption. Developed by staff at the NC Attorney General’s Office and the NCDSS, this two-day specialized course covers many essential aspects of adoption assistance. To learn more about this course or to register for spring 2001 offerings, consult your NCDSS children’s services training calendar.

References

Genty, P. (1998). Permanency planning in the context of parental incarceration: Legal issues and recommendations. Child Welfare, 77, 543–560.

Guardian ad Litem Attorney TPR Training Manual. (1998). Presented June 19, 1998.

Malpass, J. & Thompson, J. (2000). Case building toward permanence: A curriculum for child welfare social workers. Raleigh, NC: NC Division of Social Services.