By: Janette Jordan
This blog post will focus primarily on C.R.S. 19-5-105(3.1) which lays out the ways in which the court may find grounds for the termination of parental rights of a parent and a minor child. If you are remarried and find yourself considering a step-parent adoption, it is important to be familiar with the ways in which your new spouse could legally adopt your minor child(ren). In an adoption case, it is possible to seek for a step-parent adoption by first terminating the parental rights of the other parent. Termination occurs when the court severs the legal relationship between a parent and their child. Relinquishment occurs when one parent voluntarily gives up their legal relationship between themself and their child.
Pursuant to C.R.S. 19-5-105(3.1), the court may terminate a birth parent’s parental rights when it finds that (1) it is in the best interests of the child; and (2) there is clear and convincing evidence of one of the following:
- The parent is unfit. To make this determination, the court considers things which render the parent with an inability to care for the needs of the child such as:
- Emotional/mental illness;
- The occurrence of a life-threatening or serious bodily injury/disfigurement to the child;
- Physical or sexual abuse towards a minor child;
- A history of violence including incidents defined in section 19-1-103(96.5) regarding sexual assault;
- Excessive use of alcohol and/or use of controlled substances;
- Neglect of the child;
- Injury of death of another minor child directly due to abuse or neglect;
- Two or more adjudications of the minor child through a dependency or neglect case; and/or
- Another state’s termination of parental rights.
The best interests of the child standard is governed by C.R.S. 14-10-124, which lists out a variety of factors that the court will consider in conjunction with a petition to terminate. It is important to note that while looking over the factors listed above, you may find yourself thinking of past scenarios with the other parent wherein, they used illegal drugs or became heavily intoxicated, etc. The standard to terminate a parent’s relationship to a minor child is extremely high. You will need to provide ample evidence and support of your position if you are the one seeking the termination. You will need to provide witnesses to potentially testify or authenticate evidence, prepare exhibits, and make legal arguments to the court.
- The parent has not established a substantial, positive relationship with the child. The court will consider things such as:
- Whether the parent has maintained meaningful and regular contact with the child;
- Whether the child has lived with the parent for at least 180 days within the year prior to the filing (or in the case of infants, at least half of the child’s life); and
- Whether the parent openly holds the child out as their own.
The most common position to assert under this section is that the parent, whose rights are being contested, has failed to provide meaningful and regular contact. This is fairly open-ended and ambiguous factor that can truly come down to the interpretation by your judicial officer who is presiding over you case. For example, if the parent lives out of state from the minor child, the Judge may find that phone contact multiple times a week is sufficient contact. Or if the parent lives in close proximity and only sees the child twice a year, the Judge may find that is not sufficient regular contact with the minor child. It is best to focus your position on as many applicable fronts as necessary or, in the alternative side of the case, be prepared to defend yourself against multiple allegations pursuant to the statute.
- The parent has not taken substantial responsibility for the child; such as:
- Failing to respond to the petition to terminate;
- Failing to provide regular or reasonable support;
- Failing to substantially assist the mother in medical and hospital expenses related to the pregnancy and birth.
No matter if you feel the petition to adopt or terminate has merit or validity, you cannot ignore the judicial process. Failing to respond and/or attend your hearing may result in your rights being terminated. Further, failing to provide regular support such as child support can be a factor for the court to consider. This does not meant that if you miss one support payment you risk termination. However, if you have failed to financially care for the child in conjunction with some of the other factors, the court may consider these factors together and overlapping.
In the court’s eyes, it is in the best interests of the children to always have a second parent to care for them. This is why, a Petition for Step-Parent Adoption is preceded by the Petition for Termination. Once the minor child becomes eligible for adoption through the termination process, the court can then proceed with legalizing the adoption of the minor child. Again, it should be noted that the burden of proof for any of these statutory bases for termination is high and most courts are going to proceed cautiously, requiring extremely strong evidence. From my perspective, termination often requires a repeated pattern of one of the behaviors set forth above, and over a lengthy period of time.