Termination of Parental Rights in Arizona Understanding the Legal Requirements Necessary to Obtain Permanency for Dependent Children Presented by Carolyn T. Morescki, Unit Chief Counsel Office of the Attorney General, Protective Services Section May 2012
Dependent Child, defined A dependent child is a child who is adjudicated to be in need of proper and effective parental care and control and who has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control. A.R.S. 8-201(13)
Dependency Overview The broad definition of a dependent child allows for consideration of nearly any factor that affects a parents ability to effectively care for their child, including: Parental Substance Abuse (legal v. illegal does not matter; effect on the child is key Physical/Emotional Abuse Neglect Abandonment
Dependency Overview Burden of Proof: Preponderance of the evidence 55(C) Ariz. R. P. Juv. Ct. More likely than not that a parent or guardian is unable to care for their child Court adjudicates the dependency Enters findings for each parent and child Orders case plan (sometimes concurrent): * Remain with Parent *Family Reunification * Guardianship *Severance/Adoption * APPLA (Long Term Foster Care, Ind. Living) Orders Reunification Services (unless the Court orders no services due to aggravating circumstances)
Permanency Hearing Required by state law to be held: within first 6 months for children age 0-3; and within first 12 months for all other children, and every 12 months thereafter The court must determine whether: termination of parental rights, permanent guardianship or some other permanent legal status is the most appropriate for the child, and order the appropriate motion to be filed whether ADES has made reasonable efforts to finalize the existing permanent plan efforts were made to place siblings together
Termination of Parental Rights Petitioner must prove at least one statutory ground for termination by clear and convincing evidence: Higher than preponderance, and lower than beyond a reasonable doubt (criminal standard) Need to prove at trial, and also need to withstand potential appeal by parent 11 state statutory grounds (A.R.S. 8-533(B)) Petitioner must also prove that termination of parental rights is in the child s best interest by showing either: benefit to the child i.e., adoption detriment to the child no further contact with abusive/neglectful parent
Abandonment A.R.S. 8-533(B)(1) Failure to maintain a normal parental relationship with the child without just cause for six months constitutes a prima facie case of abandonment Parent must make more than minimal efforts to provide reasonable support and communicate regularly with their child Objective view (look at parent s conduct in the proper context (e.g., incarceration)); the parent s subjective intent is irrelevant Failure to take a paternity test without good cause is evidence of abandonment. A.R.S. 8-533(F) The burden to act as a parent rests with the parent, who should assert his legal rights at the first and every opportunity Michael J. v. ADES
Neglect, Willful Abuse of a Child, and Failure to Protect A.R.S. 8-533(B)(2) That the parent has neglected or willfully abused a child. This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child. Abuse is defined as the infliction or allowing of physical injury, impairment of bodily function or disfigurement or the infliction of or allowing another person to cause serious emotional damage and is caused by an individual having care, custody and control of a child.
Abuse includes: Inflicting or allowing sexual abuse, sexual conduct with a minor, incest, child prostitution Physical injury resulting from exposure to chemicals or equipment used in drug manufacturing Unreasonable confinement of a child Serious physical injury means: Injury that is diagnosed by an M.D. and that does any one or a combination of the following: Creates a reasonable risk of death Causes serious or permanent disfigurement Causes serious impairment of health Causes the loss of protracted impairment of an organ or limb, or Injury resulting from sexual abuse
Serious emotional injury means: Injury that is diagnosed by an M.D. or psychologist and that does any one or a combination of the following: Seriously impairs mental faculties Causes serious anxiety, depression or social dysfunction behavior to the extent that the child requires treatment Injury resulting from sexual abuse Failure to Protect a Child from Abuse Parent knew or reasonably should have known someone was abusing a child, and failed to protect Parents can lose rights to their own non-abused child for failing to protect a child who was abused (their own or someone else s child) need to show nexus Parents can lose rights to a later born child for prior abuse/failure to protect need to show nexus
Substance Abuse A.R.S. 8-533(B)(3) Parent is unable to discharge parental responsibilities because the parent has a history of chronic abuse of dangerous drugs, controlled substances or alcohol, and there are reasonable grounds to believe that the parent s condition will continue for a prolonged indeterminate period. Chronic means long lasting; need not be constant ADES must provide the parent with rehabilitative services (not every conceivable service) unless such efforts would be futile, and parent must have time and opportunity to participate A parent s failure to remedy their drug problem despite knowing the loss of his or her children was imminent, is evidence that the parent has not overcome his or her dependence on drugs or alcohol
Mental Illness/Deficiency A.R.S. 8-533(B)(3) Parent is unable to discharge parental responsibilities because the parent is mentally ill or mentally deficient, and there are reasonable grounds to believe that the parent s condition will continue for a prolonged indeterminate period. ADES must provide the parent with rehabilitative services (not every conceivable service) before seeking termination unless such efforts would be futile, and parent must have time and opportunity to participate Parent has a diagnosed mental illness or deficiency Need to show the nature and severity of the parent s mental illness or deficiency, how it interferes with parenting, its likely duration and the possibility of effective treatment or that treatment would be futile
Length of Felony Sentence/Nature of Felony 8-533(B)(4) That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which that parent was convicted is of such nature as to prove the unfitness of that parent to have future custody and control of the child, including murder of another child of the parent, manslaughter of another child of the parent or aiding or abetting or attempting, conspiring or soliciting to commit murder or manslaughter of another child of the parent, or if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years.
Nature of Felony Conviction The crime for which the parent was convicted must directly demonstrate substantial unfitness to parent. Such felonies includes but is not limited to: murder of another child of the parent, manslaughter of another child of the parent, aiding or abetting or attempting, conspiring or soliciting to commit murder of manslaughter of another child of the parent. The parent s child need not be the victim The conviction must directly demonstrate the individual s substantial unfitness to parent, as opposed to the general character defects reflected by the commission of any felony A felony proves unfitness if its commission permits a rational inference of unfitness
Length of Felony Sentence How long is too long for a child? Court reviews all relevant factors, including, but not limited to: length and strength of parent-child relationship existing when incarceration began; the degree to which the parent-child relationship can be continued/nurtured during incarceration; given the child s age, whether the incarceration will deprive the child of a normal home ; the length of the parent s sentence; whether another parent is available to provide a normal home for the child; effect of deprivation of parental presence on child Do not need to prove each and every factor Normal home refers to a home in which a parent is present and does not include a home environment created by someone else
Failure to File a Paternity Action A.R.S. 8-533(B)(5) Potential father has 30 days from date of service of notice that child will be adopted by another person This time period is strictly enforced despite the potentially harsh result because the Legislature intended there be a definitive time period Failure to File a Notice of Claim Regarding Paternity A.R.S. 8-533(B)(6) Putative father failed to file this notice with the Putative Father Registry Must file before or within 30 days of child s birth This time period is strictly enforced, as above
Relinquishment of Parental Rights or Consent to Adoption A.R.S. 8-533(B)(7) Parents may relinquish their rights to a child to an agency, or consent to the child s adoption A consent to adopt is invalid if executed before 72 hours after the birth of a child; and before 10 days if child is subject to the Indian Child Welfare Act A consent to adopt is irrevocable unless obtained by fraud, duress or undue influence
6 Months Time in Care A.R.S. 8-533(B)(8)(b) The child is under three years of age, has been in an out-of-home placement for a cumulative total period of 6 months or longer pursuant to court order and under court supervision, ADES has made a diligent effort to provide reunification services to the parent, and the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement, including refusal to participate in reunification services offered by ADES. Parents must have notice of the circumstances they must remedy in order to regain custody of their child The circumstances causing out-of-home placement are those in effect at time of severance
9 Months Time in Care A.R.S. 8-533(B)(8)(a) The child has been in an out-of-home placement for a cumulative total period of 9 months or longer pursuant to court order and under court supervision, ADES has made a diligent effort to provide reunification services to the parent, and the parent has been unable to neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement. While a parent need not completely overcome their difficulties within the statutory time period, he or she must make appreciable, good faith efforts to do so The Court may still terminate parental rights if the parent has made only sporadic, aborted attempts to remedy their difficulties, even if the parent began a successful recovery before the severance hearing
15 Months Time in Care A.R.S. 8-533(B)(8)(c) The child has been in an out-of-home placement for a cumulative total period of 15 months or longer pursuant to court order and under court supervision, ADES has made a diligent effort to provide reunification services to the parent, and the parent has been unable to remedy the circumstances that cause the child to be in an outof-home placement, and There is a substantial likelihood that the parent will not be capable of exercising proper and effective care and control in the near future. The Court evaluates the parent s ultimate ability or inability to remedy the circumstances regardless of the parent s efforts
Parent Identity Unknown A.R.S. 8-533(B)(9) The identify of the parent is unknown and continues to be unknown following three months of diligent efforts to identify and locate the parent This ground is applicable when the identity of one or more of the child s parents is actually unknown (e.g., a baby is abandoned and there is no evidence as to the child s parents) Before seeking termination, there must be a diligent search to identify and locate the child s parents and that those efforts be unsuccessful
Prior Termination A.R.S. 8-533(B)(10) The parent has had parental rights to another child terminated within the preceding two years for the same cause, and the parent is currently unable to discharge parental responsibilities due to the same cause. The Court is not required to find that the same ground that supported termination in the prior case also support termination in the current case. Rather, it must find that the underlying cause of the prior termination is the same cause that renders the parent unable to parent this child (e.g., Mother s substance abuse during both cases gave rise to the separate terminations on abandonment in the prior case, and time in care in current case)
Prior Dependency (Repeated Removal from Parent) A.R.S. 8-533(B)(11) All of the following must be true: Child was in an out-of-home placement pursuant to court order; The agency responsible for the child s care made diligent efforts to provide reunification services; Pursuant to court order, the child was returned to the parent s legal custody from whom the child had been removed; Within 18 months after the child was returned pursuant to court order, the child was removed from that parent s legal custody, and The parent is currently unable to discharge his or her parental responsibilities
THE END!