Neglect and Abuse Proceedings - Termination of Parental Rights

Termination of parental rights means the complete legal severance of the parent-child relationship, ending all authority, responsibilities, lines of inheritance and rights between the parent and child.

Termination is an extraordinary legal action which is taken only when the welfare of the child demands it: either to protect the child from unpreventable maltreatment or inevitable neglect in the child's own parental environment or to make it possible for the child to become a part of a new family when both biological parents are unwilling or unable to raise the child.

Obtaining termination is deliberately difficult.  The statutes are constructed to assist parents to raise their own children and to discourage the legal creation of orphans and rootless children through statutory manipulation by parents who simply do not want to shoulder their responsibilities.  The rights of this type of parent can be terminated if there is a new family to replace the entire biological one, or in the case of a non-custodial parent, if there is a legally recognized step-parent who has petitioned the court to replace that parent MCL 710.51(6).

Termination may only occur through judicial action and only according to the particular statutory grounds of either the child protection provisions of the Juvenile Code ( MCL 712A.1 et seq.) or the Adoption Code ( MCL 710.21 et seq.).

A.  Termination: The Juvenile Code - Child Protective Proceedings:

The purpose of termination in Protective proceedings is to free the child from a relationship with an unsafe, unfit or disappeared parent.  Adoption by another family is the anticipated and usual next step for a child whose parents' rights have been terminated but adoption is not the reason for termination under this code.

• A petition alleging abuse and/or neglect as defined by MCL 712A.2(b) and the Child Protection Act MCL 722.622(e) and (f) of a child found in this County, must be submitted to and authorized by the Juvenile Division.
• Any person may submit such a petition.
• If authorized (accepted for legal action), the Petition must be proven by a preponderance of the evidence (by admission, no contest, bench or jury trial) for the court to have jurisdiction of a child.  Jurisdiction is a prerequisite to termination; termination does not occur when the court takes jurisdiction.
• Termination may be requested on the initial petition or in a later petition however, the following requirements apply to both petitions.

(a) The court must authorize the petition.
(b) Only the DHS (Department of Human Services), local prosecuting attorney,
        child, guardian, custodian, or foster parent (in certain very restricted circumstances)
        may submit a petition seeking termination. MCL 712A.19b(1)
(c) The petitioner must allege and prove, by clear and convincing evidence, one
        or more of the legal grounds for termination included in MCL 712A.19b(3) and,
(d) The parent must not be able to prove that termination is not in the best interests
        of the child.
(e) There is no right to have a jury decide the issue of termination.
(f) When this "involuntary" termination seems imminent, parent(s) will sometimes
        voluntarily "release" a child to the DHS for the purpose of adoption.  Such
        releases cannot occur unless allowed by the judge presiding in the child
        protective proceeding.

• Although legally permitted, it is highly unusual for a protective petition to be filed against the non-custodial parent alone, because the safety of the child can usually be protected by the custodial parent with or without the assistance of the domestic relations court.
• Although legally permitted, it is rare for the court to terminate the rights of one parent when the child is safely in the legal custody of a non-offending parent. Such an outcome only occurs when the non-custodial parent presents such a danger to the child that the efforts of the custodial parent, the domestic relations court, the criminal court and other legal resources cannot assure the safety of the child.
• A child's natural parent cannot adopt the child if that parent's parental rights are intact.

B. Termination: The Adoption Code

The purpose of termination in the Adoption Code is to make a child legally available for adoption.  Except in the case of step-parent adoptions, all parental rights must be terminated for the child to be available for adoption.  Termination may be achieved by Release, Consent, Disclaimer by a putative father or judicial determination.

• A parent may execute before a judge or a juvenile court referee a voluntary release of a child to the DHS, to a licensed adoption agency or to the Juvenile Division for adoption.
• • Both "legal" parents must release unless:
  • • the rights of the parent(s) has/have otherwise been terminated
    • the child has a guardian
    • the parent(s) has/have a guardian
  • If a child is born or conceived when the mother is not married or fathered by a man other than the mother's husband at the time of conception or birth and the mother does (or intends to) release, consent or is married to the petitioner for adoption, the court must hold hearings to identify and locate the biological father and determine his rights..
  • • If the biological father cannot be identified or located, the rights of the unknown father will be terminated by the court.
    • If the biological father is the legal father (established by legal acknowledgement or prior court decision) or is a putative father who has established a custodial relationship with the child, he may release, consent or, in the case of a putative father deny paternity or an interest in custody.  If such a father contests the termination, his rights could only be terminated after grounds for termination are proved at full legal proceedings under the Juvenile Code.
    • If the biological father is a putative father who has not established a custodial environment with the child, he may deny paternity, deny an interest in the custody of the child and parental rights will be terminated.  If such a person claims he is the father and requests custody of the child, the court must hold a hearing to decide whether the child's best interests are served by being in the custody of the father.  If so, custody is to be awarded to the father and the legal status of the father will be established by the court.  If, after hearing, the court finds that custody should not be awarded to the father, parental rights will be terminated.
  • If a child is 5 years of age or older, the court must specifically find on the record that the release is in the best interests of the child. (This court has ruled several times that, except for cases under the step-parent adoption provision, it is not in the best interests of a child in the custody of one of the parents to terminate the rights of the other parent because the parent does not or will not pay child support, visit the child or is an annoyance to the other parent.  That parent is a potential asset to the child which the court will not eliminate unless there is an identified person immediately able and willing to become the legal parent in place of the non-custodial parent.)
• A parent may execute before a judge or a juvenile court referee, a voluntary "consent" to the adoption of a child by a named person or married couple who meet the following criteria:
• • an unrelated person or married couple having a comprehensive home study completed by a licensed adoption agency, who is approved by the court for placement of the child, or
  • a relative within the 5th degree (and spouse, if any) who is approved by the court for placement of the child following investigation, or
  • the spouse of a custodial parent if a petition for adoption by that spouse has been submitted and authorized by the court.
• Except in cases of step-parent adoption, both parents must consent to this specific adoption unless:
• • Parental rights have already been terminated.
  • A parent has a guardian.
  • The child has a guardian.
• A full guardian of a child MCL 700.424 may consent to the adoption of that child, including consenting to the guardian's own adoption of the child.  The biological parent's rights will be terminated by this consent.

Within 21 days after an order of termination, a parent has a right to rehearing and an appeal of termination of parental rights on a voluntary or involuntary termination.

For more information about termination of parental rights, contact the Juvenile Court.

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