Termination of parental rights can be either voluntary or involuntary. Parents may voluntarily give up their parental rights by placing their child for adoption. In cases where they are involuntarily terminated, the court believes it is in the best interest of the child to do so. The Courts will determine that parental responsibilities are not being upheld by the parent(s). Either way it is a very serious matter, because parental rights regarding the ability to see or contact the child and the right to have a say in how the child is raised will be forfeited. Whether or not you are voluntarily or involuntarily terminating your rights, it is important for you to understand exactly what this entails.

The state of Arkansas does not have a state statute that explicitly defines and protects parental rights as fundamental rights, but various court case outcomes clearly reflect what is determined to be the best interest of the child and each cases is determined by unique facts and evidence pertaining to it. Here are two examples:  

Coffee v. Zolliecoffer, 216 S.W.3d 636 (Ark. Ct. App. 2005): The best interest of a child was determined to be with her grandparents that she had lived with for 12 years, although her biological mother was involved in her life and declared a fit mother. “The law prefers a parent over a grandparent or other third person, unless the parent is proved to be incompetent or unfit.” Id. at 641. However, “the ‘polestar’ and paramount consideration is at all times the best interest of the child, which can overcome the parental preference when a child is left in the care of a non-parent for a substantial period of time,” id. at 642, even when the parent is perfectly fit (emphasis added).

re Guardianship of S.H., ___S.W.3d___(Ark. 2012). A mother petitioned the court for custody of a child that was approximately three years old at the time that she had placed under the guardianship of the paternal grandparents due to her unstable life, drug abuse and inability to properly care for the child. When the child was 10 years old, the biological mother filed an appeal to the order of the Arkansas County Circuit Court denying her petition to terminate guardianship on the basis that it was unconstitutional because it negatively impacted “her fundamental liberty interest with respect to the care, control, and custody of her child…” It was found that the application of Ark. Code Ann. § 28-65-401 violated the mother’s constitutional right because she was never deemed unfit and by giving guardianship during her unstable time she was acting in the best interest of the child. The Court held that a “natural parent who has not been deemed unfit is entitled to the presumption that he or she is acting in the child’s best interest, even after consenting to a guardianship.”

Based on these two cases and many others, one can make the assumption that every case is different and the courts try to consider the child’s best interest as well as parental rights when determining before making a final decision in the matter.

There are specific circumstances to be considered when it is deemed that it is unsafe for a child to be returned home safely because of risk or harm by a parent or the inability of the parent to provide for the child’s basic needs. The most common grounds for determining parental unfitness include, but are not limited to:

• Severe or chronic abuse or neglect
• Sexual abuse
• Abuse or neglect of other children living in the household
• Abandonment of the child including failure to support or maintain contact with the child
• Long-term mental illness of the parent(s)
• Long-term substance abuse inducing incapacity of the parent(s)
• Involuntary termination of the rights of the parent to another child

The state will intervene to try to aid the parent in correcting the conditions and/or parental behaviors, but if that is unsuccessful, it will become the responsibility of the state to provide services to prevent further harm to the child, which can include termination of parental rights.

Even if the state deems it the best interest of the child to terminate parental rights, the Court will have to determine:

• By clear and convincing evidence, that the parent(s) is unfit.
• Whether severing the parent-child relationship is in the child’s best interest.

Even in cases where a parent chooses to relinquish parental rights, a judge is still required to approve as well as the child’s other parent.  

If you are dealing with a parental rights situation, Kevin Hickey Law Partners can help you determine the best course of action. Call our office today to schedule an appointment.