Terminating Parental Rights in Utah

(a) that the parent has abandoned the child;

(b) that the parent has neglected or abused the child;

(c) that the parent is unfit or incompetent;

(d)(i) that the child is being cared for in an out-of-home placement under the supervision of the court or the division; (ii) that the parent has substantially neglected, willfully refused, or has been unable or unwilling

to remedy the circumstances that cause the child to be in an out-of-home placement; and (iii) that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future;

(e) failure of parental adjustment (as defined by Utah Code 78A-6-502(2));

(f) that only token efforts have been made by the parent:

(i) to support or communicate with the child; (ii) to prevent neglect of the child; (iii) to eliminate the risk of serious harm to the child; or (iv) to avoid being an unfit parent;

(g) (i) that the parent has voluntarily relinquished the parent’s parental rights to the child; and (ii) that termination is in the child’s best interest; (h) that, after a period of trial during which the child was returned to live in the child’s own home,

the parent substantially and continuously or repeatedly refused or failed to give the child proper parental care and protection; or

(i) the terms and conditions of safe relinquishment of a newborn child have been complied with, pursuant to Title 62A, Chapter 4a, Part 8, Safe Relinquishment of a Newborn Child.

As a practical matter, the most common grounds for termination we deal with in practice are (a) abandonment, (b) child abuse and neglect, (c) parental unfitness, and (d) token efforts. I’ll explain what each of these mean and what evidence the court is looking for.

Child abandonment means a parent has consciously disregarded his or her parental obligations leading to the destruction of the parent-child relationship. Abandonment is presumed if a parent goes 6 months or more without communicating or visiting with his/her child. In contested cases courts generally look to letters, e-mail, cell phone logs, text messages, calendars, and other records to determine if abandonment has taken place. Child support logs are also relevant. Commonly the accused parent will claim he or she tried to stay in contact with the child but could not because the custodial parent moved away or was denying access to the child. This can be a viable defense if that is what truly happened and the accused parent was diligent about maintaining contact. Regardless of which side you are on, keeping records of all contact (or lack thereof) can make or break your case.

Child abuse is broadly defined as non-accidental or threatened harm of a child, including sexual abuse of a child. It does not encompass reasonable parental discipline or use of force in self-defense, defense of others, or removing a weapon from a child. To warrant terminating parental rights (the family law equivalent of the death penalty) the level of abuse must generally be significant and/or repetitive, otherwise it may warrant a change in custody and order for supervised visitation but not termination of parental rights. Child molestation or severe physical abuse generally meets this standard. Generally the Division of Child and Family Services (commonly known as DCFS, Utah’s child protective service agency) will investigate claims of child abuse and provide a report on whether it appears genuine. Medical and police reports are often useful in establishing whether abuse took place or not.

Child neglect is broadly defined as encompassing abandonment, lack of proper parental care of a child by reason of the fault or habits of the parent, failure to provide necessary subsistence, education, medical care, or other necessary care, etc. As with abuse, neglect must generally be severe and/or repetitive to rise to the level of terminating parental rights rather than less drastic solutions such as changing custody or requiring supervised visitation for the wayward parent. Chronic drug or alcohol abuse by a parent can meet the definition of neglect. And DCFS will generally investigate claims of neglect and provide a report as to whether they substantiate that claim.

Parental unfitness is a situation where a parent is incapable of providing for a child. This encompasses situations where a parent suffers from severe mental illness or other mental deficiencies that renders them unable to care for a child, is cruel or abusive towards children, habitually abuses drugs or alcohol, repeatedly fails to provide for a child’s needs, will be jailed for at least a year and the child will not have a normal home for more than a year, has a history of violent behavior, or has intentionally exposed a child to pornography or the like.

Token efforts encompasses situations where a parent has not outright abandoned a child but is making such meager “token” efforts to stay involved that the child is better off terminating their rights. For example, a parent who only visits once or twice a year, only sends a letter or makes a phone call twice a year, and is significantly behind in child support may be considered to be making only “token efforts” to stay involved.

Finally, to terminate parental rights you have to prove doing so is in the child’s best interests. More often than not if you prove grounds for termination the conclusion that terminating the offending parent’s rights serves the child’s best interest follows almost automatically. But that is not always the case. The Court has discretion not to terminate parental rights even after finding grounds to do so in situations where (1) there is no adoptive-parent willing to step into the shoes of the parent whose rights are being terminated or (2) it believes the accused parent is capable of reforming him/herself and the child would benefit from an ongoing relationship. For this reason courts are generally reluctant to allow parents to unilaterally sign over their parental rights or allow custodial parents to terminate the rights of absentee noncustodial parents unless the custodial parent has remarried and the new husband or wife wants to do a step-parent adoption or the person seeking termination is a relative who wants to adopt the child (like a grandparent).

Are you looking to terminate parental rights? Are you defending against a lawsuit seeking to terminate your parental rights? If so give the smart, experienced attorneys at Wiser Family Law a call at 855-254-2600.