Parental rights: A right and privilege that can be legally terminated

It's often noted that there's no litmus test and no list of qualifications for one to become a parent. But Pennsylvania law recognizes that not everyone who can become a parent deserves to be one. In order to protect the best interests of the child - the guiding principle in family law - sometimes it becomes necessary to terminate parental custody rights, even against the will of the parent.

This is perhaps one of the more gut-wrenching proceedings in family law, but only because the stakes are so high. The decree to terminate parental rights is irrevocable and permanent.

As part of my practice at Scaringi Law, with offices in Harrisburg, Carlisle and Newport, I work to ensure that no parent is ever stripped of his or her child without just cause and due process.

The following is a look at the agonizing legal steps of an involuntary termination of parental rights - a path no parent wants to tread.

Difficult circumstances

The overwhelming number of cases of involuntary termination of parental rights involve county Children and Youth agencies. Typically, the agency has had some cause to intervene in the family situation. Sometimes there is an addiction issue with the parent, or the child has been deemed the subject of abuse, neglect, juvenile delinquency or dependency. In many cases, the child has been removed from the home, albeit on a temporary basis.

These types of child custody cases move to an involuntary termination of parental rights only after county officials have tried and failed to work with the parent or parents on a reunification plan. This might involve steps such as parental or family counseling, drug treatment and parental classes, to name a few.

The agency's first inclination is typically not to permanently break up a family. But parents are given only so much time to meet the obligations of the reunification plan. If months go by and the parent is not making sufficient progress, the agency can and will seek to terminate parental rights.

At this point, the primary goal becomes the best interests of the child. This means placing the child in a stable and permanent family situation.

Official notice

The court does not take the breakup of a biological family lightly. The mother is given at least 10 days' written notice of the court hearing on the petition to terminate parental rights; the father receives notice as well if he can be identified. If the mother is under 18, her parents also are served notice.

All parties in the case are entitled to an attorney, including the child. Often the court assigns a guardian ad litem ("for the purposes of the legal action only") to represent the child and make sure his or her interests are represented at the hearing and reported to the court.

These court notices should never be ignored. The court gives no protection to parental procrastinators. If a properly notified parent fails to respond, the court is free to hold the hearing without him or her.

A heavy burden

The burden of proof in involuntary termination of parental rights falls squarely on the Children and Youth agency making the petition. In Pennsylvania, there are nine legal grounds for involuntary termination of parental rights. All point toward the legal argument that a termination of parental rights must be squarely in the child's best interests.

These grounds are all legally defined and include such circumstances as continued parental incapacity or child abuse. Also on these grounds, a father of a child conceived through rape or incest can be stripped of his parental rights on this fact alone.

The petitioner may argue more than one of the nine grounds for parental rights termination but need only prove one to be successful. The hearing before a county judge plays out like a regular trial, with testimony and cross examination by counsel to all parties, including the child's representative.

In the end, the judge decides the case on whether the involuntary termination of parental rights is in the best interests of "the child's developmental and physical and emotional needs."

What cannot be the sole basis in involuntary termination of parental rights decisions is what are called "environmental" issues. These are factors such as housing, furnishing and clothing provided by the parent.

This means a parent cannot be stripped of his or her child custody rights simply for lacking the nicest home or the newest clothes. In short, a parent can't be prosecuted for being poor. The judge must separate these two issues: Is the parent unfit, or is he or she doing everything for the child within the family's means on a limited or low income?

At the conclusion of the one-day hearing, the judge will typically issue a ruling from the bench. If the judge finds that the best interests of the child would be better served by a family situation other than that of the child's biological family, the judge issues a decree to this effect. The ruling can be appealed to Superior Court, but this represents an uphill and expensive legal climb.

With that decree comes the death knell of a parent's rights to that child. This is why at Scaringi Law, we believe every parent, despite any past mistakes, deserves aggressive and experienced legal representation when his or her parental rights are on the line.

We will challenge whether the agency has proven grounds for termination of parental rights based on all the facts, testimony and evidence on the record. At the same time, we will argue the positive efforts of the parent to fulfill his or her role. In preparing the case, we will document these attempts with evidence and witnesses.

Yes, parenthood is a right and a privilege. At Scaringi Law, we do everything possible to defend that right in court.

Next time: We follow the legal journey of a loving couple willing to adopt a child.

To learn more about how Scaringi Law attorney Erin K. Komada can help you, call her toll-free at 877-LAW-2555 or email her at info@scaringilaw.com