Stepparent Adoption: Terminating Parental Rights Of An Abandoning or Abusive Parent To Allow for Stepparent Adoption
Terminating Parental Rights To Allow For Stepparent Adoption In Utah
In this article, you will learn…
- Why terminating parental rights to allow a stepparent to adopt may be right for your child;
- What “grounds” a custodial parent must prove in order for their new spouse to adopt their child;
- What the Court will look at when determining whether termination and adoption is in the child’s best interests;
- How to prove the necessary “grounds” and “best interests” factors; and
- How to begin the process of termination and stepparent adoption
Sometimes, after a couple separates, the primary residential parent, also known as the custodial parent, remarries. Simultaneously, the non-custodial parent may significantly damage their relationship with the child. They may do this by…
- Fading out of the picture,
- Not staying connected with their child,
- Abusing or neglecting their child,
- Becoming an unfit parent.
During this time, the child develops a tighter bond with the stepparent than they have with their non-custodial parent. Under those circumstances, in Utah, the custodial parent can petition the court to terminate the other parent’s parental rights so that the stepparent can then adopt the child.
What Does The Primary Residential Parent Have To Prove In Order For Their New Spouse To Be Able To Adopt?
There are two things they have to prove:
- There are grounds for termination of parental rights, and
- From the child’s point of view, it’s in the child’s best interest for the adoption to occur.
What Kinds Of Things Would Satisfy The Grounds To Terminate Requirement? And Then What Kinds Of Grounds Are We Talking About Here?
Ground to terminate can include a number of things, such as…
- The child has been abused,
- The child has been neglected,
- The parent is unfit or incompetent,
- There’s a likelihood that the parent will not be capable of exercising proper and effective care in the near future,
- That only token efforts have been made by the parent to support or communicate with the child if there are mental health issues that cause the parent to be unfit,
- That the parent is incarcerated for lengthy periods of time preventing their ability to be a parent,
- That there are substance abuse issues,
- That the parent is harming the child by physical, emotional, or developmental injury in some way,
- That sexual abuse has occurred, and/or
- That there has been a failure to properly care for the child.
One of the most common grounds for termination of parental rights, though, is abandonment. If a parent simply fades out of the child’s life or doesn’t make necessary efforts to overcome any difficulties that exist in being a part of their child’s life, this can be considered abandonment and be grounds for termination.
What Does It Take To Demonstrate Abandonment?
Abandonment is conduct on the part of a parent that implies a conscious disregard of the obligations that that parent owes to the child, leading to the destruction of a parent-child relationship. A lot of things can do that, such as fading out of the picture for a long period of time or having a lengthy prison sentence.
If a parent has faded out of the picture for six or more months, they have abandoned their child(ren). That can also be true even they are still sending birthday cards or Christmas cards or texting once or twice a year, since those are considered only “token efforts.” Failing to truly maintain a “parent-child” type relationship and can also constitute abandonment.
Let’s Say Someone Has Grounds To Terminate. What Kinds Of Things Would It Take To Show That, From The Child’s Point Of View, It Is In The Best Interest Of The Child To Allow That Termination And Adoption To Occur?
The court looks at the totality of the circumstances when determining what’s in the best interest of the child. That includes the non-custodial parent’s:
- Past conduct,
- Moral character,
- Emotional stability,
- Ability to function as a parent,
- Drug or alcohol abuse,
- Instability in housing,
- Instability in employment, and
- All the things that give rise to the grounds.
They also look at the child(ren)’s:
- Physical needs,
- Educational needs,
- Emotional needs, and
- Special needs, if any.
If a parent has relinquished their parent time or custody in the past, that can also be a factor. The parent’s financial responsibility or lack of responsibility can play into that. The court can also look at how happy and well-adjusted the child is now. If they’re in a good situation, that’s going to play a role. The court’s going to look at the relationship between the child and the unfit parent or the abandoning parent and compare it with the relationship between the child and the stepparent.
When viewing all of those things from the child’s point of view, the court has to be firmly fixed on finding the outcome that secures the child’s well-being in the best possible way. Once grounds for termination are found (even if it’s only one single ground for termination) the constitutional right of that parent to raise their child – the parental presumption – becomes successfully “rebutted.”
Then, at THAT point, the only thing that the court has left to consider is what is in the child’s best interest. The child’s best interest takes precedence over everything, all other considerations. The court has to ask: “Can the child be equally protected and benefited by something other than adoption by the stepparent?” If the answer to that is “no,” then the court’s going to say, “Look, I think it’s in the child’s best interest to terminate and adopt”.
Here is an example of some findings that a court might make when finding that it’s in the child’s best interest to terminate:
The court might say that the non-custodial parent will not be able to establish and maintain a meaningful parent-child type relationship with the minor child within a reasonable time; that although some type of relationship exists between the non-custodial parent and the child, there’s less of a relationship between the child and the non-custodial parent than there is between the stepparent and the child. By way of contrast, the child and the stepparent have a close, warm parent-child type relationship.
The relationship between the child and the non-custodial parent is more of an “uncle-dad” or “aunt-mom” kind of relationship. It is a secondary relationship, and is not as strong of a bond. The court may also state that, should the custodial parent die or become unavailable to parent for any reason, it would be contrary to the children’s best interest for the children to be parented by the non-custodial parent rather than the stepparent. In fact, there would be a high likelihood that the child(ren) will be further traumatized by being removed from the stepparent and would be at significant risk of mental and emotional decompensation to be moved from the stepparent to the non-custodial parent with whom they have a lesser relationship.
Bad consequences could also occur psychologically and developmentally should a child be removed from, say, a half-sibling or a step-sibling. Sothe value of preserving the lesser relationship with the children is outweighed by the value of preserving the parent-child type relationship that had been formed between the child and the stepparent.
The children are currently happy, healthy, thriving, and well cared for not only by the custodial parent but also by the stepparent with whom they have formed a parent-child-type bond. So from the children’s point of view, it’s in the best interest of the children to terminate the non-custodial parent’s parental rights and allow the stepparent to adopt so that that relationship can be safeguarded.
This course of action is necessary and would secure the best outcome for the child long-term. Failing to allow the adoption cannot equally protect or benefit the child.
Those kinds of findings are an example of what one might find in a ruling that it is in the child’s best interest to terminate and adopt.
How Does the Case Get Started?
The case for terminating a non-custodial parent’s parental rights begins with filing a petition and a summons. There’s a particular kind of notice to the non-custodial parent that you have to file and have served to them. If they don’t file an answer or a response to that petition or move to intervene in any way after they’re served with the summons petition, you can then file a motion of default. Typically, they will have 21 to 30 days, depending on whether they are in-state or out-of-state, to file their response before you can file the motion. If they do file their response, you then engage in various methods of proving your case to get ready for trial.
How Does One Go About Proving Grounds To Terminate And Proving That It Is In The Best Interest Of The Child?
You can use a variety of methods to help prove grounds to terminate and that termination of parental rights is in the best interest of the child.
- Create a chronology of events
One thin you can do is build a chronology of events. This is a document that lists the date on left and the event on right. You go through the history of all of the problems that have occurred with the non-custodial parent and how that’s impacted the child’s relationship with that parent. You also describe all of the ways that the child has been benefited by their relationship with the stepparent. Describe that bond. Things that get added to the chronology as exhibits (in addition to what the parent and stepparent can remember) might include important texts, emails, social media posts, recordings, videos, and statements from other witnesses. But even if you don’t have any other data to support the chronology of events, you can rely on just your own memory for this process.
- Witness interviews
Some of the witnesses who may be interviewed during this process can include…
- Friends, or
- Other family members.
These are individuals who have witnessed the same kinds of things as the custodial parent and will be given the opportunity to put their testimony into an affidavit or declaration. Some clients have even recorded conversations and been able to submit transcripts of those conversations. In Utah, it is legal to record a conversation as long as at least one party to the conversation knows its being recorded, whether it’s in-person or over the phone.
- Paper discovery
You can also engage in what I call “paper discovery” to help bolster your case. Paper discovery includes methods by which attorneys can find out information.
One that you might be familiar with as a subpoena. An attorney can subpoena records such as bank records, criminal records, phone records, sometimes even therapy records, medical records, substance abuse records, etc.
You generally get up to ten requests for admissions. Requests for admissions are written in a document that you send out to the other side that basically says, “Please admit X, please admit Y, please admit Z”. The other party has to respond to a request for admission within 28 days. If they fail to respond within the given timeframe, then everything that you’ve asked them to admit becomes truth for purposes of the case.
Examples might include…
- “Please admit that you had no contact with the child between this date and this date.”
- “Please admit that the child’s relationship with the stepparent is a close parent-child type bond.”
- “Please admit that between this date and this date, you only contacted the child three times via text.”
The other party then has 28 days to either admit it or deny it. It forces them to have to show their cards quickly on that issue.
Interrogatories are open-ended questions that you ask in writing and the other party has to respond within 28 days. An interrogatory can include any 10 open-ended questions, such as…
- “Please tell me all the methods by which you have tried to support your child financially for the last two years.”
- “Please tell me all attempts that you’ve made to have contact with your child between this date and this date.”
- “Please tell me all the reasons why you didn’t have contact between this date and this date.”
Also, you generally get 10 requests for production of documents. These are like 10 subpoenas on the other side, and they have to provide the various records that you ask for, such as their text messages with the child, bank records, etc…
Initially only 30% of the answers you receive will be helpful, and 70% or more of the answers that you’re going to get back are going to be unhelpful (objections, attempts to avoid real answers, etc) . When that happens, you can file a motion called a “Statement of Discovery Issues” explaining to the court, “Here was my request, judge, here was their answer. It’s completely insufficient, or they failed to answer this part of the question, or they failed to provide this document. Please force them to do so.” And the court will look at that motion and make a decision. Very often you’ll get much more information after you bring it to the judge’s attention how they’ve attempted to avoid answering X, Y, and Z.
- Expert Discovery
A more powerful form of discovery, though, is expert discovery.
For example, if the child is being treated by a therapist, the therapist can weigh in on the relative bond between the child and the biological parent and compare that with the bond that the child has with the stepparent and discuss any concerns that the child has or damage that’s been done to the child-parent relationship between the child and the non-custodial parent.
There are also “forensic” psychologists that you can hire to do…
- A best interest evaluation,
- A termination/adoption evaluation,
- Psychological testing, and Interviews.
That psychologist is then able to render an opinion to the court as to what is in the best interest of the child.
Using a forensic evaluator can be extremely powerful. If the evaluator looks at the relationships and says, “Here’s what I think is in the child’s best interest.” It’s pretty hard for the other side to overcome that. If a treating therapist also testifies about similar things, that can also be extremely powerful.
Depositions are also an extremely powerful form of discovery that attorneys can use. A deposition is when the other party receives a notice that says that they are required by law to show up at an attorney’s office at this date and time. The notice will indicate that there will be a court report, a stenographer, present at the meeting who will put you under oath to tell the whole truth. The attorney is then allowed to ask questions for up to seven hours. And even if they object to a question, they still have to answer it.
It’s pretty hard to avoid answering questions for seven hours. And even if 70% of their answers are unhelpful or attempts to avoid answering, 30% of a seven-hour deposition is a lot of significant data and answers. It’s a powerful way of getting information to help prove grounds and best interests.
- Once You’re Done With The Discovery And The Deposition, What Do You Do With All That?
All of the data that you gather during the course of discovery can be plugged back into your chronology and used at the deposition. Once the deposition transcript is complete, we’ll highlight the “good stuff.” If there are answers that are helpful to help prove your case, you highlight that stuff and you then provide that information to the forensic evaluator, if there’s a best interest or termination evaluator, which gives them grounds upon which to base their opinion.
You can also give it to the transcript/collateral data therapist to help inform the therapy, so that the therapist’s understanding is not based on mere “self report” of the patient and the parents. This will help the therapist more accurately diagnose and tailor treatment.
Also, the deposition will help you form your trial examination/cross-examination of the other side. Good trial attorneys try not to ask questions they don’t already know the answers to (unless the answer doesn’t matter, because it can be used one way or another). Remember how highlight the “good stuff.” What questions do you ask the other side at trial? The highlighted stuff. That makes your examination or cross-examination powerful. Every question is a “zinger.” And if they deviate from their deposition answer, we can confront them in open court with their deposition transcript and show that they’re a liar.
With the guidance of a skilled attorney for Stepparent Adoption Cases, you can have the peace of mind throughout the process. For more information on Stepparents Adoption Law in Utah and stepparent rights, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.