Prospective adoptive parents may want to adopt a child before the biological parent’s parental rights are terminated. In Iowa, this is almost always impossible. The parental rights of both parents will need to be terminated prior to filing a petition for adoption. This article will talk about:
- Can an adoption petition be filed before parental rights are terminated?
- If the parents’ rights were not terminated, but I want to adopt the child, what should I do?
- For what reasons could someone ask for a parents’ rights to be terminated?
- What is a release of custody?
- When has a parent abandoned their child?
- Is there a hearing on termination?
Can an adoption petition be filed before parental rights are terminated?
An adoption case begins when someone files an adoption petition. Generally, this petition cannot be filed until the parental rights of the child’s biological parents are terminated. Termination of parental rights means the court orders that the parent and child, for legal purposes, become strangers. The parent has no rights to visit or make decisions for the child.
The only times a person may file an adoption petition without the parents’ parental rights being terminated are if the person to be adopted is an adult, if the petitioner is a step-parent and the other biological parent consents, or it is a standby adoption (a special kind of adoption where a terminally ill parent consents to termination of parental rights and an adoption to be effective upon the date of death or request of the parent, if the other parent has also died or their rights were terminated).
If the parents’ rights were not terminated, but I want to adopt the child, what should I do?
Only a court can terminate a parent’s parental rights. Termination of parental rights cases often arise out of Child in Need of Assistance (CINA) cases, initiated by the state in conjunction with the Department of Human Services (DHS). If DHS has found that the parent’s home is unsafe after having gone through the CINA case, the state may ask that the parents’ parental rights be terminated. The court will then set a trial on the termination issue.
However, there are other ways to terminate someone’s parental rights. Certain persons may file a petition with the juvenile court for termination of parental rights. Persons allowed to file these petitions include the child’s parents, prospective parents, and guardians of the child. The petition should include the facts of the case and reasons why the parent-child relationship should be terminated.
For what reasons could someone request the parents’ rights be terminated?
The following are some of the reasons someone may request a biological parent’s parental rights be terminated:
- A parent has signed a release of custody (discussed below) and has not revoked it.
- A parent has petitioned for their own termination
- The parent has abandoned the child (discussed below)
- A parent has been ordered to contribute to the support of the child or financially support the mother during her pregnancy and birth and has failed to do so without a good reason.
- A parent does not object to the termination after having been given proper notice and opportunity to object
- The parent has a substance abuse disorder, and has committed at least two domestic abuse assaults; and the parent has abducted the child, improperly removed the from the person entitled to custody, or kept the child too long after a visit
- The parent is imprisoned for a crime against the child, one of the child’s siblings, or another child in the household; or it appears the parent will be imprisoned at least five years.
- The parent committed a sex offense against a minor, and the parent is divorced from or never married to the minor’s other parent, and the parent is serving a minimum sentence of at least five years for that offense.
- There is clear and convincing evidence the child was conceived as the result of a sexual abuse, and the other parent requests the termination of the offender’s parental rights.
The easiest way to accomplish the termination is for the biological parent to agree as they can file a petition on their own behalf to have their parental rights terminated.
What is a release of custody?
A release of custody is a document signed by the biological parents within 72 hours of the child’s birth, which transfers custody of the child to an adoption service provider. If only one parent is present, the other parent must identify the other biological parent. If they intentionally identify someone who is not the minor parent, they are guilty of a simple misdemeanor crime.
The release of custody states that that a petition for termination of parental rights will be filed if they agree to sign. The parents may ask the juvenile court to revoke the release of custody at any point prior to an order terminating parental rights. If the parents revoke the release of custody within 96 hours (4 days), the court is required to allow the parent to revoke the release of custody. If 96 hours has passed, then the court can only order the release revoked for good cause, such as the release being obtained by fraud.
When has a parent abandoned a child?
There are different requirements for whether a parent has abandoned the child, depending on the child’s age.
If the child is less than six months old when the termination hearing is held, the court will find the parent has abandoned the child, unless the parent has done all of the following:
- Demonstrated a willingness to assume custody of the child
- Taken “prompt” action to establish a parental relationship with the child
- Demonstrated, through actions, a commitment to the child
When viewing if all these things exist, the court can consider the ability of the parent to take custody of the child, including whether the parent has helped with the child’s expenses. If paternity has not been established, the court will consider wither someone claiming to be the father has acknowledged or publicly held himself out to be the father during the six months prior to the termination hearing. The court will also consider whether the person claiming to be the father has helped financially according to his means for medical expenses or helped emotionally support the mother, and any other relevant factors.
If the child is over six months old at the time of the termination hearing, the parent will be found to have abandoned the child unless the parent has had significant and repeated contact with the child. This is shown through financial contribution of a reasonable amount, and by considering whether the parent has:
- Visited the child at least monthly when able to do so, and when not prevented from doing so by the person having lawful custody of the child
- Regular communication with the child or person having custody of the child, when otherwise unable to physically visit the child
- Living with the child for a period of six months within a one-year period immediately preceding the termination of parental rights during that period, holding himself or herself out to be the parent of the child.
Is there a hearing on termination?
The law says any necessary party must be served with notice prior to the hearing on termination. Necessary parties include parents, the child, guardian, custodians, guardians ad litem, any putative father who has filed a declaration of paternity. A guardian ad litem will be appointed for the child, if one does not already exist. A parent whose rights may be terminated has a right to counsel in the matter.
At the hearing, the parents whose rights are in question will need to argue that they do not meet any of the grounds for termination of parental rights.
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