• Foreword
• Table of Contents
• Introduction

§7.09 Terminating Parental Rights

[1] When Available
[2] When Precluded
        [a] In General
        [b] Detrimental to Child
[3] Effect of Order and Reinstatement of Rights

[1] When Available

To terminate parental rights, you must find by clear and convincing evidence that it is likely that the child will be adopted. [WIC §366.26(c)(1).] In addition to finding adoptability, one of the following findings (made at an earlier hearing) generally provides a sufficient basis for termination [WIC §366.26(c)(1)]:

• Reunification services were not offered under WIC §361.5(b) (parents’ whereabouts unknown, parent mentally disabled, child reabused, parent caused another child’s death, etc.) or §361.5(e)(1) (parent institutionalized or incarcerated and clear and convincing evidence that reunification services would be detrimental to the child based on statutory factors);
• Under WIC §366.21(e), the parents’ whereabouts are unknown, the parent failed to contact and visit the child for six months, or the parent was convicted of a felony indicating parental unfitness; or
• The child cannot or should not be returned to the parent or guardian under WIC §366.21, §366.22 , or §366.25 because of a substantial risk of detriment.

Generally the suitability of a prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to whether a child is likely to be adopted. Your assessment of a child who needs total care for life, however, must necessarily include some consideration of whether the prospective adoptive parents can meet that child's needs. [In re Carl R. (2005) 128 CA4th 1051, 1061–1062; In re Helen W. (2007) 150 CA4th 71, 80.] Even if the dependency petition alleges a parent’s unfitness, an order at a jurisdiction hearing sustaining the petition is inadequate, by itself, to terminate the parent’s parental rights without a subsequent finding of detriment by clear and convincing evidence. [In re Frank R. (2011) 192 CA4th 532, 538–539.]

ICWA ICWA

[2] When Precluded

[a] In General

You may not terminate parental rights if, at each hearing at which you were required to make findings concerning reasonable efforts or services, you found that reasonable efforts were not made or that reasonable services were not offered or provided. [WIC §366.26(c)(2)(A); CRC 5.725(d).] You also may not terminate parental rights when (1) the child is living with a relative who is unable or unwilling to adopt because of circumstances that do not include an unwillingness to accept legal or financial responsibility, but who is willing and capable of providing a stable and permanent environment through legal guardianship, and (2) removal from the relative’s home would be detrimental to the child’s well-being. [WIC §366.26(c)(1)(A); CRC 5.725(d).]

Also you may not terminate rights of only one parent unless he or she is the sole parent because the other parent died, had his or her rights terminated, or relinquished custody to DSS. [CRC 5.725(a)(2).]

[b] Detrimental to Child

Even if the child is a proper subject for adoption and reunification services were not offered or have been terminated, you may decide not to terminate parental rights if to do so will be detrimental to the child because [see CRC 5.725]:

• The parents or guardians maintained regular visitation and contact with the child and the child would benefit from continuing that contact [WIC §366.26(c)(1)(B)(i); CRC 5.725(d)];

 

• A child who is 12 years old or older objects to the termination of parental rights [WIC §366.26(c)(1)(B)(ii); CRC 5.725(d)];
• The child was placed in a residential treatment facility, adoption is not likely or desirable, and continuation of parental rights will not prevent the child from finding a stable placement if the parents cannot resume custody when the child no longer needs residential care [WIC §366.26(c)(1)(B)(iii); CRC 5.725(d)];
• The child is living with a relative or foster parent who is unwilling to adopt, but is willing to accept legal responsibility for the child and to provide a stable home, and removal would be emotionally detrimental to the child [WIC §366.26(c)(1)(B)(iv); CRC 5.725(d)];
• There will be substantial interference with the relationship between the child and his or her siblings [WIC §366.26(c)(1)(B)(v); CRC 5.725(d)]. Be aware that children can be siblings because they share a biological parent, even though they do not share a legal parent [In re Miguel A. (2007) 156 CA4th 389, 394]; or
• The child is an Indian child, and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to, the fact that the child’s tribe has identified guardianship, long–term foster care with a fit and willing relative, tribal customary adoption [WIC §366.24], or another planned permanent living arrangement for the child [WIC §366.26(c)(1)(B)(vi)(II); CRC 5.725(d)(2)].

If you find that termination would be detrimental to the child, you must state reasons in writing or on the record. [WIC §366.26(c)(1)(D).] To prove the beneficial parent-child relationship exception and overcome the preference for adoption, the parent must show more than frequent and loving contact, an emotional bond, pleasant visits, or an incidental benefit to the child. The parent must prove that he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. [In re Dakota H. (2005) 132 CA4th 212, 229.]

[3] Effect of Order and Reinstatement of Rights

An order permanently terminating parental rights is conclusive and binding on the child, parents, and anyone else who was served. [WIC §366.26(i)(1).] A tribal customary adoption order also must be afforded full faith and credit. But you must not order compliance with the order absent a finding that the party seeking enforcement participated, or attempted to participate, in good faith, in family mediation services of the court or in dispute resolution through the tribe. [WIC §366.26(i)(2).]

If the child is not adopted within three years, however, and adoption is no longer the permanent plan, the child may petition to reinstate parental rights under modification procedures. The petition may be filed before three years have passed if DSS or a licensed adoption agency and the child stipulate that the child is no longer likely to be adopted. To grant the petition, you must find clear and convincing evidence that the child is no longer likely to be adopted, and that reinstatement of parental rights is in the child’s best interests. [WIC §366.26(i)(3); see Part 1, §2.10[3].]

A parent may appeal an order terminating parental rights, but the pendency of an appeal does not strip your court of jurisdiction to “fashion appropriate orders as permitted by statute.” You may consider a child’s interest in sibling visitation throughout the case, including at post-permanency planning review hearings, and may modify visitation orders at subsequent hearings as required by the child's needs. [In re Valerie A. (2007) 152 CA4th 987, 1002.]

A father whose parental rights were terminated and who does not challenge that decision does not have standing to appeal an order entered at the same hearing denying a petition by the dependent child’s grandparents to have the child placed with them. A parent’s appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child’s placement only if the placement order’s reversal advances the parent’s argument against terminating parental rights. [In re K.C. (2011) 52 C4th 231, 238.]