Termination of Parental Rights in Florida

Author’s Note from Attorney Howard Iken: Parental rights refer to the legal rights of parents to spend time with and make decisions affecting the welfare of their child. However, in certain cases, parental rights can be terminated by a court. This can occur in situations such as written surrender, abandonment, threats to the well-being of the child, incarceration of the parent, and egregious conduct. Termination of parental rights requires specific procedures to be followed, such as filing a petition and holding a hearing. Once a parent’s rights have been terminated, it is usually difficult to obtain them back. Parents who feel their rights are in jeopardy are encouraged to seek immediate help.

Introduction

Courts and legislatures across the country recognize that parents play an extremely important role in the life of their children. Children who grow up without the presence of one or both parents may require therapy or other interventions in order to overcome the pain and trauma of growing up with one or both parents absent from the home. Recognizing this, state laws (including Florida’s statutes) make it difficult for an adult’s parental rights to be terminated. This does not mean that parental rights are guaranteed, however. In certain cases, courts can terminate a person’s parental rights. The circumstances under which this can occur – and the procedures the court must follow when doing so – are explained and set forth in Florida statutes.

What Are Parental Rights?

When a couple has a child, those parents have certain “rights” as parents of that child. These rights include the right to spend time with the child, make decisions affecting the welfare of the child (such as what medical treatment the child should receive, where the child should be sent to school, etc.), and who has access to the child. Both the natural mother of the child – who is easy to identify and is the individual who gave birth to the child – as well as the biological father of the child (who can be more difficult to determine in some cases) are able to exercise these parental rights. While courts generally defer to parents and allow parents to exercise their rights, courts do have the authority to intervene and limit or terminate parental rights.

On What Grounds May Parental Rights Be Terminated?

There are several situations in which parental rights can be terminated. These situations are described by statute and include:

• When a written surrender has been executed by the parent. This typically occurs when placing a child for adoption. The written surrender is a form completed by the parent and executed in front of two witnesses and a notary public. The written surrender is a parent’s way of voluntarily giving up whatever parental rights he or she may have. It is important that a parent carefully consider whether to sign a written surrender because once it is signed, it cannot be withdrawn unless the parent shows that he or she signed it under fraud or duress (that is, someone tricked or threatened the parent into signing the surrender).
• When a parent has abandoned the child. Abandonment has a legal definition and occurs when the parent has made no real effort to establish a positive parent-child relationship with the child and/or has failed to make any substantial contribution to providing for the child’s needs. A parent who drops off his or her child at a relative’s home and then vanishes can be found to have abandoned the child if a sufficient period of time has passed. In addition, a parent who cannot be located for 60 or more days can have his or her parental rights terminated by the court.
• When a parent threatens the well–being of the child. In this case, the threat does not have to necessarily affect the child’s physical health – any action or inaction that threatens the physical, mental, or emotional health of the child can be considered. Generally, though, the action needs to be so serious that it convinces a court that the parent poses a continuing threat to the child’s welfare.
  • For example, suppose that Daniel has a minor child. When Daniel exercises parenting time with his child, he routinely drinks and drives while the child is with him in the car. A court can consider Daniel’s actions to be a course of action that threatens the child’s well-being. Daniel’s parental rights may very well be terminated by this course of conduct.
• When a parent is incarcerated. If a parent is presently incarcerated, a court can determine that terminating parental rights is appropriate. This is likely to occur if the parent will remain incarcerated for a significant portion of the child’s life, has committed certain violent or sexual-related offenses, or has established a pattern of behavior that shows the parent will likely continue to be incarcerated throughout the child’s life.
  • As an example, suppose that Cindy has a minor child who is five years old. Cindy has been sentenced for a serious crime and has received a minimum sentence of fifteen years. A court can find that Cindy will be absent for a significant portion of the child’s childhood (in fact, all of the child’s childhood) and can terminate her parental rights. Even if Cindy is only sentenced to a short period of incarceration, if this is Cindy’s fifth or sixth time being incarcerated in as many years, a court can find that Cindy is not likely to be present for much of the child’s life and terminate her rights.
• When a child has been adjudicated as dependent. If a child is adjudicated dependent and the parents have not complied with the case plan for a period of time, a court can terminate a parent’s rights. A court can find that there is evidence of continuing abuse, that a parent has not made significant progress on the case plan for 12 out of the last 22 months, or that clear and convincing evidence demonstrates that the parent will not be able to substantially comply with the case plan.
• When there has been egregious conduct. Egregious conduct – like abandonment, neglect, abuse or other deplorable, flagrant, or outrageous conduct – that either was committed by the parent or that occurred and the parent did not take action to protect the child can be the basis for a petition to terminate parental rights. The “egregious conduct” does not necessarily need to be committed against the child but can occur to a sibling of the child.
• When a parent has had other children either placed outside the home or had rights involuntarily terminated. If the parent has had other children involuntarily removed from the home or had his or her parental rights terminated as to other children, the court may terminate a parent’s rights.

Where parental rights are to be terminated because of a pending adoption, the court can terminate a parent’s rights where:

• The parent has consented to the adoption and corresponding termination of his or her rights. Much like a surrender, the consent must be signed without fraud or duress and must be signed in the presence of two witnesses and a notary.
• The legal father has executed an affidavit stating that he is not the father of the child.
• The parent has failed to respond to a notice of adoption or appear in court.
• The parent has abandoned the child. If a parent has abandoned the child (as described above), parental rights can be terminated in order to permit adoption.
• The parent is declared to be incapacitated by a court. This will usually occur if the parent is in a coma or otherwise unable to care for him- or herself.

Procedure for Terminating Parental Rights

In order to afford parents every opportunity to preserve their parental rights, Florida law requires certain procedures be followed.

• The process of terminating parental rights begins with the filing of a petition. The petition can be filed by any number of individuals or entities. For instance, a child’s guardian ad litem can file a motion, as can a person who has physical custody of the child. The petition must contain certain facts, including the basis or reason why termination of parental rights is sought. Where the termination of parental rights is sought in connection with an adoption, the petition must set forth facts showing that either the parent’s consent to the adoption was obtained or that the parent’s consent does not need to be obtained.
• The court will hold a hearing on the petition. The purpose of the hearing is to allow the court to receive evidence and testimony in support of the allegations contained in the petition. In cases of a petition brought by the child’s guardian ad litem (in a dependency proceeding), the court is guided ultimately by what is in the manifest best interests of the child. Where termination of parental rights is sought in connection with an adoption, the court must make written findings and find clear and convincing evidence that it is appropriate that the parent’s rights should be terminated.

Help for Struggling Parents

Having one’s parental rights terminated is a serious action that in most cases is permanent and irrevocable. In other words, once a court terminates a parent’s rights, it is very difficult – and in most cases impossible – for that parent to obtain those rights back. It is extremely important that a parent who is either asked to sign a consent or surrender fully understand the document before he or she signs. Once a consent or surrender is signed and properly executed, a parent who wishes to “undo” such a document must produce evidence that his or her signature was obtained through fraud or deceit.

The courts generally want parental rights to remain intact; therefore, a parent who feels his or her parental rights are in jeopardy should reach out immediately for help. If a child has been adjudicated as a dependent, there are typically social services available that can assist parents in preserving their parental rights. If the other parent is seeking to terminate a parent’s rights in order to permit an adoption (such as a step-parent adoption), there are steps that a competent family lawyer can take to preserve the parent’s rights.

In any case where a parent’s rights are at risk, it is important that the parent whose rights are threatened take immediate action. The longer one waits, the more difficult it becomes to protect that parent’s rights.

Conclusion

The parents of a minor child – that is, the natural mother and the biological or legal father – have certain “parental rights” under the law. These rights include the right to spend time with the child, develop a parent-child relationship, and make decisions that affect the health, well-being, and development of the minor child. Florida, like most other states, generally prefers that parents’ parental rights remain intact throughout a minor’s childhood. But a parent’s parental rights are not completely immune: in some cases, a court can and will terminate a parent’s parental rights. Whether a court does so is always a fact-intensive question and requires the court to consider what is in the child’s best interest.

Parental rights can be terminated in connection with a dependency proceeding or in connection with an adoption proceeding. In either case, the individual or entity seeking the termination of a parent’s rights must file a petition with the court that sets forth the reasons why parental rights should be terminated. Parental rights can be terminated by the parent executing a specific document in front of witnesses and a notary. Rights can also be terminated where the parent is a danger to the child, where the parent will not be present for the majority of the child’s life due to the parent’s incarceration, and where a parent is found to have abandoned the child.

Parents who believe their rights may be in jeopardy or who have been asked to surrender their rights are strongly encouraged to seek the assistance of an experienced family law attorney or (in the case of a dependency proceeding) to speak with any state agencies involved in the proceedings. The sooner a parent seeks help and takes action, the greater the likelihood that that parent’s rights will not be terminated.

Even if a parent’s rights have been terminated, there is a small chance that such an action can be undone. A court’s ability to restore parental rights once they have been terminated is very narrow, so it is best to consult with the experienced team at Ayo and Iken to make sure the proper procedure is followed and to ensure that the necessary facts are brought to the court’s attention.