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It is impossible to talk about an Adoption without discussing the Termination of the biological Parents’ Rights to the child. Below you will find that we have separated the following information into two parts: (1) Adoption, and (2) Termination of Parental Rights. This information provides a general overview of the adoption process, as well as a very specific description of the termination of parental rights process. Normally, if it is anticipated that the biological parent will contest the Adoption, then you proceed to Termination before you can adopt. If the parent will not contest the adoption (i.e. an “Uncontested Adoption”) then you can proceed directly to Adoption, and Termination will automatically occur per Arizona Revised Statute §8-106 (providing proper notice is given). The difference between the two scenarios is critical, and you should hire a knowledgeable attorney before undertaking either of these procedures. After reading the following information, feel free to contact The Cantor Law Group or call us at (602) 254-8880 at your convenience to set a free initial consultation today!
David Cantor explains the Adoption Process and Termination of Parental Rights in Arizona:
In Arizona, many adoptions occur by step-parents seeking to adopt their step-children. The other common scenarios involve grandparents adopting their grandchildren, and a couple seeking to adopt children either because they cannot have children of their own, or for the greater good of society.
“Step-Parent Adoption” can be relatively easy if the biological parent of the child is willing to consent to the adoption. Many times that parent will be willing to consent to termination of their parental rights because they will be relieved of child support obligations and any other responsibilities that the law requires as a parent. This is also true of grandparents adopting grandchildren, due to the fact that both biological parents may be unable or ill-equipped to adequately raise the child, therefore they are willing to consent to the adoption. Lastly, many young couples who get pregnant (i.e. high school couples) are aware that they are not ready to handle the responsibilities of parenting a child and are, therefore, willing to consent to the adoption.
Adopting parents may be required to complete a pre-placement “Home Study” in preparation for the adoption process. The rules are different for the Step-Parent Adoptions. The Home Study will involve a social worker who will interview the prospective parents and conduct a background investigation. In addition to criminal history, financial history and the familial history, the social worker will also want to conduct a medical examination. Lastly, the social worker will want to tour the prospective parents’ home in order to make sure they can adequately provide for the potential adoptive child.
The Cantor Law Group will seek to assist in the transition between the biological parents and the adopted family in the case of a non-relative adoption. Obviously, this will not be necessary if a Step-Parent or grandparent adoption is involved. In situations involving non-relative adoptions we can assist with both “domestic” (U.S.) adoptions and “non-domestic” (international) adoptions.
Usually, there are no restrictions to adoption in the U.S., however, it is a little more difficult for single persons to adopt then married couples. In addition, you must be at least eighteen years of age to adopt. In the case of international adoptions, some countries place an age limitation of fifty years while others do not. Again, if an adoption involves a relative who is willing to consent to Termination of their Parental Rights, then the process is fairly smooth.
If the Adoption involves a child who has been in foster care for a number of years, then our role at The Cantor Law Group becomes even more critical. We will immediately file to terminate the parental rights of the biological parents in order to speed the adoption process. In addition, the State will appoint a lawyer (i.e. a “Guardian Ad Litem“) on behalf of any child to make sure their rights are protected during the Termination of Parental Rights proceeding. This process is also necessary in cases where a relative (or the other biological parent who conceived the child with the relative) are unfit to be parents, yet they are still attempting to object to a Termination of their Parental Rights.
Termination of Parental Rights
As stated above, in order to proceed with an Adoption in Arizona, the biological parents’ rights to their child must be severed. This is referred to as Termination of Parental Rights in Arizona. This process is governed by Arizona Revised Statute §8-531 through §8-544. Even though Arizona has established statutory authority, we are still governed by constitutional principles which have been expanded upon by the U.S. Supreme Court.
The U.S. Supreme Court has held in Stanley v. Illinois that the interest of a parent in the companionship, care, and custody of their child is a fundamental liberty interest deserving of deference and protection absent a powerful countervailing interest. However, the Supreme Court went on to rule in Quillon v. Walcott that this is true, unless the parent has never borne any significant responsibility for the child or functioned as part of the child’s family, in which case they have no cognizable interest to assert or protect. The Supreme Court next went on to rule, in Smith v. Organization of Foster Families, that the Due Process Clause of the U.S. Constitution would be offended if the State were to attempt to force the break-up of a natural family, over the objection of the parents and their children, without some showing of “unfitness” and for the sole reason that to do so was thought to be “in the child’s best interest.”
Arizona adopted all of these principles in 1995 in the Matter of Appeal in Pima County Juvenile Severance Action No. S-120171I. The Court held that they never look to what is in the best interest of the child regarding severance until unfitness of the parents has been established. This means that in order to severe parents’ rights in Arizona you must first show: (1) The parent is unfit and; (2) It is in the best interests of the child to sever the parental relationship. In the 2006 case of Kent K. and Sherry K v. Bobby M. and Leeh M., the Arizona Supreme Court ruled that “unfitness” must be proved by clear and convincing evidence, whereas “best interests of the child” need only to be proved by a preponderance of the evidence.
Pursuant to Arizona Revised Statutes §8-533, entitled “Petition; Who May File; Grounds,”
(A) “Any person or agency that has a legitimate interest in the welfare of a child, including but not limited to, a relative, a foster parent, a physician, the department of economic security, or a private licensed child welfare agency, may file a petition for the termination of the parent-child relationship alleging grounds contained in sub-section B of this section.
(B) Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the Court shall also consider the best interest of the child.”
11 Scenarios which Justify Termination of Parental Rights
The statute enumerates eleven (11) different scenarios which justify termination of parental rights for being “unfit.” The following is a list summarizing these factors:
- The parent has abandoned the child.
- The parent has neglected or willfully abused the child (or knowingly put a child in a situation where that could occur).
- The parent is unable to discharge the parental responsibilities because of mental illness, history of chronic abuse of dangerous drugs and / or alcohol, and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period.
- That the parent is convicted of a felony of such in nature as to prove unfitness that parent to have future custody and control of the child, or if the prison sentence of the parent is of such a length that the child will be deprived of a normal home for a period of years;
- The potential father failed to file a Paternity action within the time limits prescribed by statute.
- The putative father failed to file a Notice of Claim of Paternity as prescribed by statute.
- The parents have relinquished their rights to a child to an agency or consented to the adoption [this is the most common scenario in most adoption cases].
- The child is being cared for by a license child welfare agency and they have made diligent efforts to provide appropriate reunification services to the family, and, (a) the child was out of the house for a total period of nine (9) months or longer pursuant to court order or voluntary placement pursuant to statute and the parent has substantially neglected or willfully refused to remedy the circumstances, or (b) the child has been out of the house for a total period of fifteen (15) months or longer pursuant to court order or voluntary placement pursuant to statute, and the parent has been unable to remedy the circumstances and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.
- The identity of the parent is unknown and continues to be unknown following three (3) months of diligent effort to identify and locate the parent.
- The parent has had the parental rights to another child terminated within the preceding two (2) years for the same cause and is currently unable to discharge parental responsibilities due to the same cause.
If the child is cared for in an out-of-home placement pursuant to court order and the agency responsible for the care of the child made diligent efforts to provide appropriate reunification services to which the child (pursuant to court order) was returned to the legal custody of the parent from whom the child had been removed, and within eighteen (18) months after the child was returned, the child was removed again from that parent’s legal custody, and is again being cared for in an out-of-home placement under the supervision of the juvenile court or a licensed welfare agency, and the parent is currently unable to discharge parental responsibilities.
If the State has filed against a parent (i.e. without their consent), then in addition to any of these eleven (11) grounds, the Court will also consider whether there was an availability of reunification services to the parent and whether or not the parent participated in those services. The Court shall not consider the first sixty (60) days of the initial out-of-home placement pursuant to statute in the cumulative time period necessary under factor number eight (8).
If Termination occurs during the Adoption phase (i.e. “an Uncontested Adoption”) then it is probably best to make sure that Paternity has been established (especially in cases involving children that have been in Foster care for years).
Pursuant to Arizona Revised Statute §8-106(G), in order to establish Paternity, each potential father must be served notice which contains the following information:
- An adoption is planned;
- The potential father has a right to consent or withhold consent to the adoption;
- The potential father has a responsibility to initiate paternity proceedings by statute and to serve the mother within thirty (30) days of completion of service;
- The potential father has an absolute responsibility to proceed to judgment in the paternity action;
- The potential father has a right to seek custody;
- The potential father has a responsibility to begin to provide financial support for the child if paternity is established, and;
- The potential father’s failure to file a paternity action pursuant to statute, and failure to serve the mother and proceed to judgment in the paternity action as prescribed by this section, bars the potential father from bringing or maintaining any action to assert any interest in the child in the future.
In addition, Arizona Rules of Procedure for Juvenile Court, Rule 66(d)(2) requires a person seeking Termination of Parental Rights to warn a biological parent that their failure to appear will result in an automatic “default.” This means that once the biological parent fails to appear for the hearing (which is not at all uncommon), then we at The Cantor Law Group will be ready to immediately move for finalization of the proceeding in order to severe their parental rights and establish your right to the child as quickly as possible. If you are seeking to adopt, or if the State has filed a petition against you as a parent seeking to Terminate your Parental Rights in Arizona, then contact The Cantor Law Group immediately in order for us to defend you against these allegations. For a free initial consultation click on “Contact Our Firm,” or call us for an appointment today!