The general grounds for termination of parental rights in all states are as follows. Abandonment is a prime case of abandonment can be established after six months of conscious disregard of any form of parental obligations by a parent, including support, maintenance, love and care. The conduct must be intentional and normally must involve a lack of support plus a failure to communicate. Neglect must be serious and continuing and involve serious mental, physical or moral harm to the child. Poverty or disreputable lifestyle, absent such harm, is not adequate grounds for termination. Abuse requires serious physical or emotional harm, or sexual misconduct. A likelihood of future abuse must also be established, since termination is not intended to be a punishment to the biological parent. A mental illness, deficiency, or substance abuse problem must result in an inability to parent, and must continue for a long and indeterminate period of time in order to be viable grounds to terminate parental rights.
In addition to demonstrating a conviction and current incarceration, most states laws require a showing that the crime demonstrates unfitness or that the sentence be of an exceedingly long length. In evaluating the length of the sentence, the court will balance the prior parental relationship existing between the parent and the child, the age of the child, the potential of the parent to care for the child post-incarceration, and the potential for contact with the child during incarceration.
Parental rights can also be severed predicated upon a valid relinquishment of the rights to a child. The rights inheritance and support continue until finalization of the adoption. If a child is in out-of-home care, termination of parental rights can be based upon nine months of willful refusal or substantial neglect by a biological parent, or eighteen months of the demonstrated inability to remedy the problem by the biological parent with a substantial likelihood that the situation will continue. In these circumstances, if a plan for adoption exists, termination of parental rights may be considered.
The United States Supreme Court has recognized in several cases that a father's constitutional right to raise his child is not absolute. The Courts have held that a father's relationship with his child is entitled to constitutional protection only after he establishes a substantial and committed relationship with his child. The standards applied by state courts in determining whether they will terminate an unwed biological father's rights are: 1) whether his actions constitute abandonment of the child, 2) whether it is in the best interests of the child that the father's parental rights be terminated, and 3) whether the nature of the relationship between the father and his child is worthy of constitutional protection.
The Courts have consistently held that there is a presumptive preference for biological parents to assume the custody and care of children and that the state must show a sufficient cause for any intervention with this presumption. In the case of illegitimate children, the state has an interest in placing children in stable homes while fathers have an interest in parenting their children.
The Courts have attempted to balance these competing interests, and courts have held that a state does not violate a father's right to due process if it shows a compelling reason to terminate his parental rights.
In Pena v. Mattox, the biological father argued that his due process rights were violated when his parental rights were terminated by the adoption of his child.
The mother had given birth to the child while the father was incarcerated for statutory rape. As part of his sentence, he was ordered to have no contact with the mother or her family. As a result, he was not informed of the birth of the child and did not consent to the adoption of the child. However, the court held that his due process rights were not violated when the child was adopted without his consent because he failed to take advantage of steps available to him to form a relationship with his child. Accordingly, if a father fails to develop a substantial relationship with his child, due process does not demand a hearing prior to the termination...
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