Termination of Parental Rights
A parent's right to raise his or her child is a fundamental liberty interest protected by the U.S. Constitution. Among other things, it includes the ability to maintain contact with the child and to make decisions regarding the child's upbringing and medical treatment. Nevertheless, there are certain circumstances where it can all be taken away.
What is termination of parental rights (or TPR)?
Termination of parental rights is the "complete and final severance of all legal rights, privileges, duties and obligations of the parent and child." In re S__M__W__, 485 S.W.2d 158, 164 (Mo. App. W.D. 1972). It has been characterized as "tantamount to a civil death penalty." In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). When TPR occurs, a parent is no longer legally able to:
Seek contact with or custody of the child;
Gain access to information about the child;
Make decisions regarding the child's education, religious upbringing, medical care, etc.; or
Receive benefits related to the parent-child relationship, such as welfare benefits or claiming the child on his or her taxes.
Who files Termination of Parental Rights cases?
In Missouri, the government can file a lawsuit seeking TPR, or potential adoptive parents can file a Petition seeking both TPR and adoption. When the government files the case, there is oftentimes already a potential adoptive family waiting. When adoptive parents file the case, they can pursue grounds for TPR under Chapters 453 and 211.447, RSMo.
How did we get to the point of Termination of Parental Rights? (Grounds)
Most often, a parent facing TPR was previously involved in a child abuse/neglect case, where the child was removed from the home and placed in the custody of the Missouri Children’s Division. After a certain point in that underlying case, usually one year, a decision has to be made in regard to what will happen with the child (referred to as the "permanency goal"). If the abuse/neglect court determines the child’s permanency goal is TPR/Adoption, the government will undertake efforts to help the child become adopted.
There are four common reasons, among several others, why TPR is pursued: 1) Abandonment, 2) Child Abuse/Neglect, 3) “Failure to Rectify,” and 4) Parental Unfitness. The TPR court needs only to find that one of these grounds exists.
(recent amendments to the TPR statute have been made and will take effect August 28, 2021)
Abandonment occurs when a parent “without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so.”
If the child is more than a year old, the alleged period of abandonment must have been at least six months or longer. If the child is a year old or younger, that period could be as little as 60 days.
Abuse or neglect, in the TPR context, usually means more than merely the reasons the child was initially removed from the home (i.e. continued abuse or neglect after removal). It doesn’t have to be much more, though.
In many cases, TPR-level neglect is rooted in the issues that initially brought the child into State care. For example, the child was removed due to the parent’s mental health or substance abuse issues, and since removal, the parent has not adequately addressed those concerns (See, e.g., In the Interest of M.J., 539 S.W.3d 82 (Mo. App. - W.D. 2017) - Mike Herrin served as AJO at the trial level). Mental health and substance abuse issues can also, and unfortunately, carry with them an unstable lifestyle. A court can find TPR-level neglect if a parent has been unable to show he or she can provide an adequate home for the child on a “repeated and continuous” basis. Ultimately, the threshold issue is whether the actions or inactions of the parent, since removal, have neglected and will continue to neglect the child.
In the abuse context, however, it is very well possible that the initial reasons for the child's removal can lead to TPR for not only the abusive parent, but also the non-abusive parent. Examples include a parent killing another parent while the children were in the home (In the Interest of J.A.F., 570 S.W.3d 77 (Mo. App. - W.D. 2019)), a parent killing the child's sibling when the child was standing next to him (In the Interest of B.H. III, 527 S.W.3d 167 (Mo. App. - W.D. 2017) - Mike Herrin served as AJO at the trial level), and one parent protecting an abusive parent after the abuser broke the child's bones (In re T.M.E., 169 S.W.3d 581 (Mo. App. - W.D. 2005); see also In the Interest of T.H., 980 S.W.2d 608 (Mo. App. - W.D. 1998)).
“Failure to Rectify”
This TPR ground is similar to the neglect examples above. A parent's rights can be terminated if:
The child has been under court jurisdiction for one year or more; and
The child's return to the home in the near future is prevented because either:
The parent failed to meaningfully address the issues that originally brought the child into custody; or
Other potentially harmful conditions exist.
This ground considers the parent's compliance with reunification services, his or her ability to provide an adequate home for the child, and any mental health or substance abuse issues affecting the child's ability to return to the parent's home.
Parental unfitness is somewhat of a catch-all ground for TPR. Essentially, a parent can be deemed unfit if he or she has exhibited a consistent pattern of abuse, which directly relates to his or her ability to "care appropriately for the ongoing physical, mental, or emotional needs of the child." This can include physically abusive behavior, failure to address long-term mental health or substance abuse concerns, and subjecting other children to an abusive or neglectful home life.
Unfitness is presumed (automatic) if the parent has other children who were previously subjected to the child welfare system and:
The parent's rights were involuntarily terminated (meaning there was a contested TPR trial);
The parent or the new child tested positive for alcohol or drugs at the child's birth; or
The parent was recently convicted of certain drug-related offenses.
Best Interests of the Child
If the court finds that any particular ground for termination exists, before terminating a parent's rights, the court is also required to consider and make findings on certain factors affecting the child's best interests. Those factors include:
The child's emotional ties to the parent;
The extent to which the parent has maintained regular contact with the child;
The extent to which the parent provides financial or other support for the child;
Whether the parent's circumstances could be rectified within an ascertainable amount of time if additional services are put in place;
The parent's disinterest or lack of commitment to the child;
Whether the parent's felony conviction could prevent the child's return to the home; and
Whether the parent's acts, or knowledge of another parent's acts, subjected the child to a substantial risk of physical or mental harm.
What do I do if someone is trying to terminate my parental rights?
These cases are very serious. You need the advice of competent legal counsel who is familiar with the process and your potential defenses. Mike Herrin is a former Attorney for the Juvenile Officer who spent much of his career prosecuting TPR cases.
Section 211.447, Revised Statutes of Missouri (Termination of Parental Rights)
Jackson County, MO Resources