If you are parent who is reading this blog today, the odds are good that you are concerned about your relationship to your children. The reasons for that concern could be many and unfortunately I don’t know exactly what they are. As a result, your specific circumstances are unique to you and we can’t predict exactly what will happen with your relationship to your children. However, in general, parents are afforded a great deal of latitude under the law in Texas to make decisions for their children as long as those decision are in the best interests of that child.
Being an unfit parent is obviously an opinion that can be held by a person or group of people. I hope that nobody ever considers you to be an unfit parent. Most people’s opinions are just that- an opinion. Opinions don’t necessarily matter until a person comes around whose opinion can impact the relationship that you and your child share. At that point we are talking about more than just emotions. We are getting down to the legal aspects of your relationship to your child.
It may not seem like it but you and your child share a legal relationship. Nobody thinks about that on a day to day basis. It would be weird to look at your son and think of him as your little dependent or as yourself as his conservator rather than as his mom or dad. However, the reality is that you are a conservator, caretaker and custodian of your child. These legal terms assume that you are making decisions that positively impact your child’s well-being. They assume that you are acting in their best interest and keeping them from being exposed to behavior that is harmful.
What were to happen if you did expose your child to something that was harmful to his emotional development or physical health. Or worse yet, what if you did something to your child that was harmful in those ways? Could you go from being mom or dad to being unfit as a parent to then having your legal relationship to your child terminated? These are scary questions to ask yourself but are justified in certain circumstances.
Let’s take some time to discuss termination of parental rights as it pertains to Texas parents and children, just like you and your family. I believe that once we look at what the reality is in these situations you will be able to make better decisions for yourself and your family moving forward
When can your parental rights be terminated?
In a Suit Affecting the Parent Child Relationship (SAPCR), a party can move to have your parental rights terminated. Parental rights can be terminated in relation to all of your children, some or just one of them. Keep in mind that Child Protective Services (CPS) or any other party cannot terminate your parental rights on their own. There is a legal process that they have to follow in order to have that done. Unless and until you appear in court and a judge tells you that your parental rights have been terminated, your rights remain intact.
There are two types of parental termination situations in Texas. The first is an involuntary termination. This occurs most frequently when CPS files a petition to terminate your parental rights after they have conducted an investigation into you and your family. It is called an involuntary termination because you have not consented to your rights being terminated and you are contesting that termination attempt in court.
The other type of termination case is a voluntary termination. You may agree to have your parental rights terminated for a number of reasons. The way you would get this process started is to file an affidavit of voluntary relinquishment once the termination lawsuit has begun. At that stage, it is up to the judge in your court to decide whether or not to grant your relinquishment attempt. What the judge needs to weigh is whether or not your relinquishing your parental rights is in your child’s best interests or not.
How many different people can file a termination case against you?
At this stage you may be asking yourself just how many people out there can file a termination lawsuit against you. For starters, either you or your child’s other parent can file a termination lawsuit. Otherwise, nonparents can also file termination lawsuits if that person is someone who currently has court ordered visitation with the child (such as a grandparent), a foster parent of your child (if your child is in state custody), an adoptive parent or a family member if either you or your child’s other parent has died and the remaining parent agrees to the termination.
Importantly, and most commonly, CPS will also have the right to file a termination lawsuit against you. This will typically happen after they have taken custody of your child, gone to court and won a temporary managing conservatorship over him and will then file this lawsuit. All the while, your child would be removed from your home and placed in foster care. That process may be against your will or you may have consented to it if you believe that you are in a position to properly care for your child.
When can you file a termination lawsuit in court?
Once your child is born you or any of the above parties can file a termination lawsuit. There are some qualifications on this, however. For instance, if you been judged to be the legal father of a child you must bring a termination lawsuit within two years after you find out that you are not the biological father of the child in question. If you wait any longer the court would refuse to terminate your parental rights. Practically speaking for you, this means that you could be ordered to pay child support for a child who is not your biological kin.
Can you file a termination lawsuit on your own?
In short, yes, you can file a family lawsuit without the assistance of an attorney. However, it is always wise to consult with a lawyer first. You likely know very little about the legal process in family law (beyond what you’ve read on this blog) and have responsibilities that will take you away from being able to focus on this lawsuit. When your legal relationship to your child is at stake you want the matter at hand to have your undivided attention. The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week if you are interested in talking to an attorney immediately.
Otherwise, if you are attempting to terminate your parental rights or the parental rights of another person you would be wise to hire an attorney, especially if the case is contested. Termination cases are difficult. Judges, understandably, do not want to terminate a person’s parental rights without just cause. You really need to knock the judge’s socks off with evidence as to why the termination is warranted. Bearing this all in mind, having an attorney by your side to represent your case and advocate on your behalf is a very smart thing to do.
What all happens in a termination lawsuit?
While the ultimate result of a termination lawsuit would be to decide whether or not your parental rights are terminated, a lot of other issues are determined along the way that will impact your relationship to your child.
First off, your termination case may begin by naming a party the managing conservator of your child, or multiple parties as joint managing conservators of your child. For instance, a family member of yours may be in a position to act as a managing conservator of your child along with CPS while you are working on steps to get your child back in your home with you. Working the safety plan created by you and CPS can take time so any person or entity named a conservator must be able to meet the responsibilities of raising a child.
On what basis can your parental rights be terminated involuntarily?
If you do not agree to the termination of your parental rights, the termination can eventually occur against your will. For instance, you could have abandoned your child for more than six months without the intention to return to care for your child wherever you left him or her. We see this happen when you may leave your child with your mother or father while you leave Texas to look for work in another state. Once your child has been in the possession of your parent for six months or longer, he or she may file a termination lawsuit and even seek child support payments from you.
Next, we would look to a situation where you have endangered your child. This is a pretty broad set of circumstances that could fall within this example. If you physically hurt your child, used drugs in front of your child, allowed other people into your home who abused your child, etc. Think about issues related to neglect, as well. Going to work one day and leaving your kids home alone to fend for themselves is a situation that could lead to potential parental rights termination. Those would all be reasons why your parental rights could be terminated.
Finally, the Texas Family Code says that an otherwise unfit parent can have their parental rights terminated. If this sounds really vague to you, that’s because it is really vague. Family court judges are given a wide amount of discretion under the law to make decisions about the best interests of a child. If the judge weighs all the evidence and decides that terminating your parental rights is in your child’s best interests then that is what he or she will do.
It is not easy to have your parental rights terminated
For better or worse, it takes a great deal of effort and evidence to have your parental rights terminated. The evidence presented must be clear and convincing in nature to justify a termination. This is a very high legal burden that the moving party must meet. In a civil case (torts, contracts, property, etc.) a preponderance of the evidence must be presented to win a motion. This means that the evidence must show that something is more likely than not to be one way or the other. Next, in a criminal case there must be evidence beyond a reasonable doubt in order to convict a person. Clear and convincing evidence is not as high a standard as beyond a reasonable doubt but it is still very, very high.
What are the factors that a court must look to when deciding whether or not to terminate your parental rights. Otherwise known as the Holley factors (named after a Texas Supreme Court case from years ago), a judge is guided by these factors when deciding whether or not to terminate your parental rights:
-the parental abilities of the party seeking custody
-the desires of your child (what he or she wants)
-the emotional needs of your child
-any degree of danger that you presented to your child through your acts or omissions
These are just a few of the factors a court would utilize to determine whether or not to terminate your parental rights.