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Termination of Parental Rights

The court order that permanently ends the legal relationship between a parent and child - the grounds a state must prove, the heightened standard of proof and right to counsel, the difference between voluntary relinquishment and an involuntary petition, and what the order does and does not end.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

Termination of parental rights is the most serious order a family court makes: it permanently severs the legal parent-child relationship, ending the parent's custody, visitation, decision-making and inheritance rights and, once a new adoption is complete, the child's right to support from that parent. Because a parent's relationship with a child is a liberty interest protected by the Constitution, the order can be entered only on a ground the statute names, proved by clear and convincing evidence - not the ordinary civil standard - after notice and a hearing at which an indigent parent is, in nearly every state by statute, entitled to appointed counsel.

The grounds are set by each state's statute and fall into recognisable families: abandonment or failure to maintain contact and support for a statutory period; chronic abuse or neglect, or a prior termination as to a sibling; a felony conviction or incarceration of a length that leaves the child without a parent; a mental illness or disability that renders the parent unable to care for the child for the foreseeable future; failure to remedy the conditions that led to a child's removal into foster care despite the agency's reasonable efforts to reunify; and, in many states, murder or serious injury of a child or the other parent. In the foster-care system, federal law requires the state to file a termination petition once a child has been in care for a stated share of a stated period unless an exception applies, which is why so many terminations follow a dependency case. The court must find both a ground and that termination serves the child's best interests, and the two findings are separate.

Voluntary relinquishment - a parent surrendering rights to an agency or consenting to an adoption - is termination by consent, and the statute governs its form, timing and revocation. A private party, usually a step-parent seeking to adopt or the other parent, may also petition on the involuntary grounds, and those cases are contested on the same standard as a state petition. The order is appealable, and appellate courts review the sufficiency of the evidence closely because of what is at stake. Some states allow a terminated parent to petition for reinstatement if the child was never adopted and remains in care, and a few allow post-adoption contact agreements to survive the order where every party and the court agree. Termination does not by itself extinguish support arrears already owed, and it does not affect the child's existing rights under the parent's will or a benefit that vested before the order.

Where this comes from

The constitutional standard is Santosky v. Kramer, 455 U.S. 745 (1982) (clear and convincing evidence required), building on Stanley v. Illinois, 405 U.S. 645 (1972). The right to appointed counsel in a state-initiated termination is decided case by case as a matter of federal due process under Lassiter v. Department of Social Services, 452 U.S. 18 (1981), and is guaranteed by statute in nearly every state; M.L.B. v. S.L.J., 519 U.S. 102 (1996), holds that a parent cannot be denied an appeal for inability to pay for the record. In foster-care cases the petition-filing requirement is the Adoption and Safe Families Act, 42 U.S.C. § 675(5)(E), and the reasonable-efforts requirement is § 671(a)(15). The Indian Child Welfare Act sets a beyond-reasonable-doubt standard with qualified expert testimony for a termination involving an Indian child, 25 U.S.C. § 1912(f). The statutory grounds, the abandonment periods and the reinstatement procedure are each state's own and are not stated here.

When people hire a lawyer for this

A parent served with a termination petition should not appear without counsel, and should ask the court to appoint one at the first hearing if they cannot afford one - the order is permanent and the standard of proof is the parent's chief protection. The case is usually won or lost on the record of the preceding dependency case, so a parent in that system should treat every service plan, visit schedule and review hearing as evidence. A step-parent or relative planning an adoption over a parent's objection needs a lawyer to plead and prove a statutory ground, because a petition that fails on the ground fails entirely, whatever the best interests of the child.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.