Parents have parental rights, including (1) the right to spend time with the children; (2) making decisions affecting the welfare of the children (such as what medical treatment the child should receive, where the child should be sent to school, etc.); (3) the upbringing; and (4) who has access to the child. Both of the biological parents may exercise these parental rights. While courts generally defer to parents and allow parents to exercise their rights, courts have the authority to intervene and limit or terminate parental rights.
There are several situations where parental rights may be terminated:
- When a written surrender has been executed by the parent. This typically occurs when placing a child for adoption. The written surrender is completed by the parent and executed in front of two witnesses and a notary public. The written surrender is a parent’s way of voluntarily giving up whatever parental rights they may have. It is important that a parent carefully consider whether to sign a written surrender. Once it is signed, it cannot be withdrawn unless the parent shows that they signed it under fraud or duress (that is, someone tricked or threatened the parent into signing the surrender).
- When a parent has abandoned the child. Abandonment has a legal definition and occurs when the parent has made no real effort to establish a positive parent-child relationship with the child and/or has failed to make any substantial contribution to providing for the child’s needs. A parent who drops off their child at a relative’s home and then vanishes can be found to have abandoned the child if a sufficient period of time has passed. In addition, a parent who cannot be located for 60 or more days can have their parental rights terminated by the court.
- When a parent threatens the well–being of the child. In this case, the threat does not have to necessarily affect the child’s physical health – any action or inaction that threatens the child’s physical, mental, or emotional health can be considered. Generally, though, the action needs to be so serious that it convinces a court that the parent poses a continuing threat to the child’s welfare.
- When a parent is incarcerated. If a parent is presently incarcerated, a court can determine that terminating the parental rights is appropriate. This is likely to occur if the parent will remain incarcerated for a significant portion of the child’s life, has committed certain violent or sexual-related offenses, or has established a pattern of behavior that shows the parent will likely continue to be incarcerated throughout the child’s life.
- When there has been egregious conduct. Egregious conduct – like abandonment, neglect, abuse, or other deplorable, flagrant, or outrageous behavior – that either was committed by the parent or that occurred and the parent did not take action to protect the child can be the basis for a petition to terminate parental rights. The “egregious conduct” does not necessarily need to be committed against the child but can occur to a sibling of the child.
- When a parent has had other children either placed outside the home or had rights involuntarily terminated. If the parent has had other children involuntarily removed from the home or had their parental rights terminated as to other children, the court may terminate a parent’s rights.
When parental rights are sought to be terminated as part of an adoption petition, the court can terminate a parent’s rights as follows:
- The parent has consented to the adoption and corresponding termination of their rights. Much like a surrender, the consent must be signed without fraud or duress and must be signed in the presence of two witnesses and a notary.
- The legal father has executed an affidavit stating that he is not the father of the child.
- The parent has failed to respond to a notice of adoption or appear in court.
- The parent has abandoned the child. If a parent has abandoned the child (as described above), parental rights can be terminated to permit adoption.
- The parent is declared to be incapacitated by a court. This will usually occur if the parent is in a coma or otherwise unable to care for him- or herself.
Procedure for Terminating Parental Rights
To afford parents every opportunity to preserve their parental rights, Florida law requires certain procedures to be followed.
- The process of terminating parental rights begins with the filing of a petition. The petition can be filed by any number of individuals or entities. For instance, a child’s guardian ad litem can file a motion, as can a person who has physical custody of the child. The petition must contain certain facts, including the basis or reason why termination of parental rights is sought. Where the termination of parental rights is sought in connection with an adoption, the petition must set forth facts showing that either the parent’s consent to the adoption was obtained or that the parent’s consent does not need to be obtained.
- The court will hold a hearing on the petition. The purpose of the hearing is to allow the court to receive evidence and testimony in support of the allegations contained in the petition. In cases of a petition brought by the child’s guardian ad litem (in a dependency proceeding), the court is guided ultimately by what is in the manifest best interests of the child. Where termination of parental rights is sought in connection with an adoption, the court must make written findings and find clear and convincing evidence that it is appropriate that the parent’s rights should be terminated.