When considering Adoption in Arizona, one main topic to discuss is 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 laws and adoption process in Arizona, 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 adopting a child in Arizona or terminating parental rights. Whether in the Phoenix metro area or elsewhere in Arizona, feel free to contact the Cantor Law Group or call us at (602) 254-8880 at your convenience to schedule a Free Consultation with a Phoenix Adoption Lawyer!
David Cantor explains the Adoption Process and Termination of Parental Rights in Arizona:
Adoption is very personal decision for prospective parents to make, and each decision is personal to that parent. The adoption process is an exciting time, but it can also be stressful and while families prepare for a new addition and still attempt to navigate the Arizona adoption laws. A skilled and experienced adoption attorney is necessary to ensure the adoption is completed correctly and will be final and binding. Our team has extensive adoption experience and can help you navigate this complicated process.
As an initial hurdle to adoption, before a child can be adopted in Arizona, the biological parent’s right to the child must be terminated, either by consent of the parent, or through a judge’s decision.
The Cantor Law Group and our Phoenix Adoption Attorneys 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.
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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 which can be voluntary or involuntary. This process is governed by Arizona Revised Statute / ARS §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.”
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.
Additional Scenarios regarding Termination of Parental Rights
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).
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According to Arizona Revised Statute §8-106(G), to establish paternity, a potential father must be given notice of the following…
- Adoption of the child is planned
- That the potential father can consent to the adoption or withhold consent
- It is the potential father’s responsibility to establish paternity by statute and to serve the mother within 30 days of completion of service
- In the paternity action, it is the potential father’s responsibility to proceed to judgment
- It is the potential father’s right to seek custody
- If paternity is established, it is the potential father’s responsibility to start providing financial support
- If the potential father fails to file for paternity or serve the mother before attending judgment, he will be barred from future interests of the child pursuant to statute.
Pursuant to ARS §8-106(G), in order to establish Paternity, each potential father must be served notice which contains the following information:
- The parent abandoned the child
- The parent has neglected or willfully abused a child, or failed to protect the child from neglect or abuse. This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should’ve known that a person was abusing or neglecting a child.
- The parent cannot discharge parental responsibilities due to mental illness or mental deficiency and there are reasonable grounds to believe their mental illness and/or deficiency will continue for an unknown period of time.
- The parent cannot discharge responsibilities due to chronic drug or alcohol abuse and there are reasonable grounds to believe their substance abuse will continue for an unknown period of time.
- The parent has been convicted of a felony that proves they are unfit to care for a child in their custody or their sentence is so long (a period of years) that the child will not have a normal life under their care.
- The prospective father did not file for paternity within the given time limits after service of notice.
- The potential father has neglected to file a Notice of Claim of Paternity in accordance with the statute.
- Within the past two years, the parents’ rights were revoked for another child due to the same reasons, and the parent is currently unable to discharge parental responsibilities for the same reasons.
- The parents have previously consented to the adoption or surrendered their parental rights to an agency (the most common).
- After three months of trying to locate and identify the parent diligently, the parents’ identity remains to be unknown.
- The parent had a prior dependency case, in which the child was placed in out of home care, within the last eighteen months of the current dependency case where the child is currently in out of home care and the parent is currently unable to discharge parental responsibilities.
- The child is being cared for in an out-of-home placement (licensed foster home, group home, or kinship placement) under the supervision of the juvenile court or a licensed child welfare agency and the agency responsible for the care of the child has made every attempt to reunify the family and:
- The child is under three years of age and was out of the home for at least six months, by court order, and the parent has substantially neglected or willfully refused to remedy the circumstances causing the child to be in an out of home placement, including refusing to participate in reunification services.
- The child was out of the home for at least nine months by court order or by voluntary placement that is pursuant to the statute, and the parent has substantially neglected or willfully refused to rectify the circumstances.
- The child was out of the home for at least 15 months by court order or by voluntary placement that is pursuant to the statute, and not only did the parent fail to rectify the circumstances, but there is also evidence that the parent is incapable of caring for the child properly in the future.
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Any person who seeks the revocation of parental rights must warn the biological parents that their failure to appear in court will result in default automatically, meaning you can proceed in their absence.
Natural parents often do not to show up at the hearing. If this happens, an experienced adoption attorney can move to finalize the proceeding immediately, terminate the parental rights correctly, and initiate the right to adopt.
If you are in Arizona and considering adoption or your parental rights are threatened, contact us immediately for assistance. Our experienced adoption attorneys are well versed all laws pertaining to adoption in Arizona and can help resolve any adoption issues you may have. However, we can’t help if you don’t call us. Contact the Cantor Law Group anytime at (602) 254-8880 for a free consultation where you can sit down with one of our top Arizona adoption attorneys and discuss your situation so that we can find the right solution in your favor.
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