What rights does a parent have to his or her child?
A parent has a natural right to the custody of his or her child. That natural right is only taken away in a court case. Terminating a parent’s rights is taken very seriously by courts. Generally, courts think that children should have support from two parents. They don’t want to terminate the rights of a parent unless there is a very good reason.
What does termination of parental rights mean?
Terminating a parent’s rights means that the person’s rights as a parent are taken away. The person is not the child’s legal parent anymore. This means:
- The parent-child relationship no longer exists.
- The parent no longer gets to raise the child.
- The parent usually has no right to visit or talk with the child.
- The parent may not have to pay child support, depending on the situation.
- The parent is removed from the child’s birth certificate.
- The child can be adopted without the parent’s permission
How can a person’s parental rights be terminated?
Parents may not terminate their own parental rights in order to end a child support obligation or break off a parent child relationship. One parent may not terminate the other parent’s parental rights in order to end parenting time or for other reasons.
In West Virginia, a person’s parental rights can only be terminated in a court case. A court can terminate a parent’s parental rights in these two types of cases:
- Abuse and neglect, or
This article will give an overview of these two types of court cases.
Abuse and Neglect
This article provides on overview of the termination of parental rights in Abuse and Neglect cases. For more information about that process, read the article on Child Abuse and Neglect in West Virginia
or Child Abuse and Neglect: How can relatives (other than parents) become involved to held the child?
Who can start the process to terminate a parent’s parental rights in an abuse and neglect case?
There are a few different ways an abuse and neglect case can start. But in most cases, a report of suspected child abuse and neglect is made to Child Protective Services (CPS), which is under the Department of Health and Human Resources (DHHR). Generally, anyone can report child abuse and neglect to DHHR’s Centralized Intake for Abuse and Neglect at 1-800-352-6513. The names of people who call to report are kept confidential.
What is child abuse?
Abuse means that a child’s health and wellbeing is being harmed or threatened. A child’s health and wellbeing can be threatened in several ways:
- Actual or attempted intentional infliction of physical or mental injury upon the child or any child in the home;
- Sexual abuse or exploitation of the child;
- The sale or attempted sale of the child; or
- Domestic violence. (W.Va. Code § 49-1-201.)
What is neglect?
Neglect means that a child’s physical or mental health is harmed or threatened by a parent’s failure, refusal, or inability to provide:
- Medical care, or
But, being low-income or poor are not good enough reasons to alone find neglect. Neglect can also be a result of the child being without these basic necessities because of the absence of the parent (W.Va. Code § 49-1-201).
How does the process to terminate rights start in an abuse and neglect case?
CPS investigates the possible child abuse and neglect.
If CPS investigates and “substantiates” that there is evidence of child abuse and neglect, then a petition is filed in Circuit Court that describes the abuse and neglect that supposedly took place. The county prosecutor usually files an abuse and neglect petition in front of the Circuit Court Judge on behalf of the DHHR. However, if DHHR or the prosecutor refuse to bring an abuse and neglect petition, any person who believes abuse and neglect took place can file an abuse and neglect petition in Circuit Court.
After the Petition is filed, then the circuit court sets a time and date for the hearing (W. Va. Code § 49-4-601(c)). After hearing evidence, if the court finds that termination is necessary, the court will give permanent sole custody of the child to the non-abusing parent if possible. If the child does not have a non-abusing parent, DHHR will try to place the child with relatives. If placement with relatives is not an option, then the child will be placed in foster care.
Child abuse and neglect cases involve many steps in the court process. This article only provides a brief description of the process. For more information about the process, read the article on Child Abuse and Neglect under West Virginia Law. Or if you are a relative that wants to help the child, read the article on Child Abuse and Neglect: How can relatives (other than the parents) become involved to help the child?
What standard does the court use to terminate parental rights through the abuse and neglect process?
The legal standard for abuse and neglect cases is clear and convincing evidence. This means the judge needs to see stronger evidence than the evidence required for family court hearings, but the judge does not need to see evidence that is as strong as the evidence needed in a criminal hearing.
To terminate parental rights, the court must find that:
- there is no reasonable chance that the conditions of neglect or abuse can be substantially corrected in the near future, and
- it is in the best interest of the child to terminate the parent’s rights (W.Va. Code § 49-4-604(b)(6); W.Va. Code § 49-4-604(c)).
Can a parent voluntarily terminate his or her own rights in an abuse and neglect case?
Yes. A parent can choose to give up his or her own parental rights. To voluntarily terminate parental rights, the parent must make the termination in writing. The termination must also be free from duress and fraud (W.Va. Code § 49-4-607). A circuit court hearing may be held to make sure that no duress or fraud was committed when signing the writing.
A voluntary decision to give up parental “rights” in an abuse and neglect case may not get rid of parental “obligations” such as the duty to pay child support. A court can require a parent who has given up “rights” to continue to pay child support. The court system will not allow an irresponsible parent to simply walk away from the child just because that’s what an irresponsible parent wants to do. See the discussion below about child support.
Do I have to pay child support after my parental rights have been terminated in an abuse and neglect case?
Maybe yes, maybe no. That’s a decision the court will make at the time parental rights are terminated. In a case called In Re Ryan B. in 2009 the West Virginia Supreme Court held that except in unusual situations the parent of a child will be required to financially support the child even after parental rights have been terminated.
The court that terminates the parental rights will then decide whether to also end the child support obligation. The court must state in its order specific reason why this case is unusual and child support should be eliminated.
The legal system does not want to make it easy for an irresponsible parent to “skip out” on the child. Even if the other parent is willing to give up the child support, the courts likely will say “No, this parent should still be legally responsible for paying child support.”
Can my parental rights be restored after they have been terminated in an abuse and neglect case?
The child or the DHHR can ask the court to place the child with a parent whose rights have been terminated if the child has not been adopted. The court must find by clear and convincing evidence that:
- A material change in circumstances has taken place for the parent; and
- The placement is in the best interests of the child (W.Va. Code § 49-4-606).
This article provides on overview of ther termination of parental rights in adoption cases. For more information about that process and requirements, read the articles on Adoption
or Stepparent Adoption
How does an adoption terminate a parent’s rights?
An adoption is a legal process in which one or both parents (the adoptive parents) are legally substituted for one or both of the biological parents. When a child is adopted, the rights and duties of one or both of the biological parents end.
How does the adoption process start?
You file a “petition” for adoption with the Circuit Clerk for the county you live in. You need to send a copy of your petition to the child’s birth mother and anyone who claims to be the father (unless a Judge terminated both birth parents’ rights in an abuse and neglect case). You also need to copy any other person who claims legal or physical custody of the child. You need to be able to say that neither birth parent can care for the child because one of the following is true for each birth parent:
1. The birth parent agrees to the adoption, OR
2. The birth parent freely gives up rights to the child, OR
3. A Circuit Court Judge took away the birth parent’s rights, OR
4. The birth parent “abandoned” the child, OR
5. The birth parent is dead.
After you file the adoption paperwork, the Circuit Judge should hold a hearing within 45 days.
What is abandonment?
Abandonment is when a birth parent acts, for six months or longer, as if they will not care for the child. West Virginia law says that:
A parent has legally abandoned a child over six months old, if that parent knows where that child lives, and, for six months or longer:
1. Does not support the child financially and
2. does not visit or stay in touch with the child.
A father has legally abandoned a baby under six months old if the father says he is not the father and he does not support the child financially or stay in touch with the child.
If a parent “abandons” the child with no gaps in time for six months or from the child’s birth if the child is under six months old, then that child is free for adoption.
Can a parent voluntarily terminate his or her own rights in an adoption?
Yes. When birth parents voluntarily agree to an adoption, they are giving “consent.” For an adoption to go forward, West Virginia law requires that both the birth mother and father consent to the adoption unless a Judge cut off their rights or they abandoned the child. If a Judge cut off the rights of one parent or one parent abandoned the child, then only the other parent needs to consent
For consent to be legal, you must give it in writing. You must sign and date the consent in front of a notary public. The following things must be listed on a birth parent consent:
- The birth parent’s current address.
- The name, date of birth, and current address of the child.
- That the birth parent allows the adoptive parent to make decisions about the child’s medical treatment.
- That the adoption cuts off the birth parent’s rights forever;
- Whether the child is from a Native American Indian tribe;
- Whether the child owns any property.
The Circuit Court Judge may agree to an adoption without written consent if the birth parent comes in person to the adoption hearing and gives consent in front of the Judge.
When will the court grant an adoption?
The court will grant an adoption if:
- It determines that no person retains parental rights in the child except for the petitioner and his or her spouse;
- That all applicable provisions have been fulfilled;
- That the petitioner is a fit person to adopt the child; and
- That it is in the best interest of the child to be adopted by the petitioner(s) (W. Va. Code § 48-22-701(a)).
Can my parental rights be restored after they have been terminated in an adoption?
No. Parental rights cannot be restored if a child has been adopted.
When should I contact an attorney?
Termination of parental rights through an abuse and neglect case is a serious issue. In abuse and neglect cases, parents are given court-appointed attorneys because their parental rights are at stake. Sometimes both parents will have the same attorney. Sometimes each parent will have separate lawyers. This usually depends on the living situations of the parents.
The child may also be appointed a Guardian ad Litem (or “GAL”). The GAL speaks for the child’s best interest in the court proceedings.
Third parties such as relatives, foster parents, or potential adoptive parents ARE NOT given a court-appointed lawyer. However, they can hire an attorney or ask for legal advice on their own.
In an adoption, having an attorney will make the process easier for you and increase your chance of success. A lawyer will help you write the forms you need or give you information about the forms you need to file. You can apply for help from Legal Aid. You can also contact other legal resources.