TERMINATING PARENTAL RIGHTS
There are only two ways to terminate parental rights: adoption and DHS dependency/neglect determination. A parent may not of his or her own accord or in agreement with the other parent terminate the parent-child relationship. The courts are generally not going to bastardize a child. An adoption terminates a parent's rights by substituting one or two parties to replace one or both parents. Under the law, the adopted child will be as if it is a child of the same blood as the adoptive parent(s). However, this does not alter anything occurring before the adoption, such as an arrearage of back child support would still be owed by the biological parent(s) who had his or her parental rights terminated. If DHS institutes a dependency/neglect case and find the parent or parents unfit, then DHS may terminate that parent or both parents rights.
ARKANSAS CODE OF
TITLE 9. FAMILY LAW
SUBTITLE 2. DOMESTIC RELATIONS
CHAPTER 9. ADOPTION
SUBCHAPTER 2. REVISED UNIFORM ADOPTION ACT
Arkansas Code Annotated Section 9-9-220: Relinquishment and Termination of Parent and Child Relationship.
With the exception of the duty to pay child support, the rights of a parent with
reference to a child, including parental right to control the child or to
withhold consent to an adoption, may be relinquished and the relationship of
parent and child terminated in or prior to an adoption proceeding as provided in
this section. The duty of a parent to pay child support shall continue until an
interlocutory decree of adoption is entered.
(b) All rights of a parent with reference to a child, including the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of parent and child terminated by a writing, signed by an adult parent, subject to the court's approval. If the parent is a minor, the writing shall be signed by a guardian ad litem who is appointed to appear on behalf of the minor parent for the purpose of executing such a writing. The signing shall occur in the presence of a representative of an agency taking custody of the child, or in the presence of a notary public, whether the agency is within or without the state, or in the presence and with the approval of a judge of a court of record of this state or any other state in which the minor was present at the time it was signed. The relinquishment shall be executed in the same manner as for a consent to adopt under § 9-9-208.
(1) (A) The relinquishment may be withdrawn within ten (10) calendar days after it is signed or the child is born, whichever is later.
(i) Notice of withdrawal shall be given by filing an affidavit with the clerk of the probate court in the county designated by the writing as the county in which the guardianship petition will be filed, if there is a guardianship, or where the petition for adoption will be filed, if there is no guardianship. If the ten-day period ends on a weekend or legal holiday, the person may file the affidavit the next working day.
(ii) No fee shall be charged for the filing of the affidavit.
(B) The relinquishment shall state that the parent has this right of withdrawal, and shall provide the address of the probate court clerk of the county in which the guardianship will be filed, if there is a guardianship, or where the petition for adoption will be filed, if there is no guardianship; or
(2) In any other situation, if notice of the adoption proceeding has been given to the parent and the court finds, after considering the circumstances of the relinquishment and the continued custody by the petitioner, that the best interest of the child requires the granting of the adoption.
(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:
(A) A child support order shall provide notice to the non-custodial parent that failure to pay child support or to visit the child for at least one (1) year shall provide the custodial parent with the right to initiate proceedings to terminate the parental rights of the non-custodial parent.
(B) If the notification clause required by subdivision (c)(1)(A) is not in the child support order, the custodial parent, prior to termination of parental rights, shall notify the non-custodial parent that he or she intends to petition the court to terminate parental rights.
(C) (1) The non-custodial parent shall have three (3) months from the filing of the petition to pay a substantial amount of past due payments owed and to establish a relationship with his or her child or children.
(2) Once the requirements under subdivision (c)(1)(C)(1) are met, the custodial parent shall not be permitted to proceed with the adoption nor the termination of parental rights of the non-custodial parent.
(3) The court may terminate parental rights of the non-custodial parent upon a showing that:
(i) Child support payments have not been made for one (1) year or the non-custodial parent has not visited the child in the preceding year and the non-custodial parent has not fulfilled the requirements of subdivision (c)(1)(C)(1); and
(ii) It would be in the best interest of the child to terminate the parental relationship.
(2) Neglect or abuse, when the court finds the causes are irremediable or will not be remedied by the parent.
(A) If the parents have failed to make reasonable efforts to remedy the causes and such failure has occurred for twelve (12) months, such failure shall raise the rebuttable presumption that the causes will not be remedied.
(B) If the parents have attempted to remedy the causes but have failed to do so within twelve (12) months, and the court finds there is no reasonable likelihood the causes will be remedied by the eighteenth month, the failures shall raise the rebuttable presumption that the causes will not be remedied.
(3) That in the case of a parent not having custody of a child, his consent is being unreasonably withheld contrary to the best interest of the child.
(d) For the purpose of proceeding under this subchapter, a decree terminating all rights of a parent with reference to a child or the relationship of parent and child issued by a court of competent jurisdiction in this or any other state dispenses with the consent to adoption proceedings of a parent whose rights or parent and child relationship are terminated by the decree and with any required notice of an adoption proceeding other than as provided in this section.
(e) A petition for termination of the relationships of parent and child made in connection with an adoption proceeding may be made by:
(1) Either parent if termination of the relationship is sought with respect to the other parent;
(2) The petitioner for adoption, the guardian of the person, the legal custodian of the child, or the individual standing in parental relationship to the child or the attorney ad litem for the child;
(3) An agency; or
(4) Any other person having a legitimate interest in the matter.
(f) (1) The petition shall be filed and service obtained according to the Arkansas Rules of Civil Procedure.
(2) Before the petition is heard, notice of the hearing and the opportunity to be heard shall be given the parents of the child, the guardian of the child, the person having legal custody of the child, a person appointed to represent any party in this proceeding, and any person granted rights of care, control, or visitation by a court of competent jurisdiction.
(g) Notwithstanding the provisions of subsection (b), a relinquishment of parental rights with respect to a child executed under this section may be withdrawn by the parent, and a decree of a court terminating the parent-child relationship under this section may be vacated by the court upon motion of the parent if the child is not on placement for adoption and the person having custody of the child consents in writing to the withdrawal or vacation of the decree.
Arkansas Code Annotated Section 9-9-223: Termination of Rights of Nonparental Relatives.
Except as provided in this subchapter with regard to parental rights, any rights to a child which a nonparental relative may derive through a parent or by court order may, if the best interests of the child so require, be terminated in connection with a proceeding for adoption or for termination of parental rights.
Arkansas Code Annotated Section 9-9-215: Effect of Decree of Adoption.
A final decree of adoption and an interlocutory decree of adoption which has
become final, whether issued by a court of this state or of any other place,
have the following effect as to matters within the jurisdiction or before a
court of this state:
(1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the natural parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and his natural relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes. This includes inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship. However, in cases where a natural or adoptive parent dies before a petition for adoption has been filed by a step-parent of the minor to be adopted the Court may grant visitation rights to the parents of the deceased natural or adoptive parent of the child if such parents of the deceased natural or adoptive parent had a close relationship with the child prior to the filing of a petition for step-parent adoption, and if such visitation rights are in best interests of the child. The foregoing provision shall not apply to the parents of a deceased putative father who has not legally established his paternity prior to the filing of a petition for adoption by a step-parent. For the purposes of this section, "step-parent" means an individual who is the spouse or surviving spouse of the natural or adoptive parent of a child but who is not a natural or adoptive parent of the child.
(2) To create the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted individual from their operation or effect.
(b) An interlocutory decree of adoption, while it is in force, has the same legal effect as a final decree of adoption. If an interlocutory decree of adoption is vacated, it shall be as though void from its issuance, and the rights, liabilities, and status of all affected persons which have not become vested shall be governed accordingly.
ARKANSAS CODE OF
TITLE 9. FAMILY LAW
SUBTITLE 2. DOMESTIC RELATIONS
CHAPTER 27. JUVENILE COURTS AND PROCEEDINGS
SUBCHAPTER 3. JUVENILE CODE
Arkansas Code Annotated Section 9-27-341: Termination of Parental Rights.
(1) (A) This section shall be a remedy available only to the
Department of Human Services or a court-appointed attorney ad litem.
(B) It shall not be available for private litigants or other agencies.
(2) It shall be used only in such cases when the department is attempting to clear a juvenile for permanent placement.
(3) The intent of this section is to provide permanency in a juvenile's life in all instances where the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective.
(b) (1) The court may consider a petition to terminate parental rights if there is an appropriate permanency placement plan for the juvenile.
(2) The petitioner shall provide the parent, parents, or putative parent or parents actual or constructive notice of a petition to terminate parental rights.
(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents;
(B) Of one (1) or more of the following grounds:
(i) (a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.
(b) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(i) of this section immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months;
(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile.
(b) To find willful failure to maintain meaningful contact, it must be shown that the parent was not prevented from visiting or having contact with the juvenile by the juvenile's custodian or any other person, taking into consideration the distance of the juvenile's placement from the parent's home.
(c) Material support consists of either financial contributions or food, shelter, clothing, or other necessities where such contribution has been requested by the juvenile's custodian or ordered by a court of competent jurisdiction.
(d) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(ii) of this section immediately precede the filing of the petition for termination of parental rights, or that it be for twelve (12) consecutive months;
(iii) The presumptive legal father is not the biological father of the juvenile and the welfare of the juvenile can best be served by terminating the parental rights of such presumptive legal father;
(iv) A parent has abandoned the juvenile;
(v) A parent has executed consent to termination of parental rights or adoption of the juvenile, subject to the court's approval;
(vi)(a) The juvenile court has found the juvenile victim dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, and which was perpetrated by the juvenile's parent or parents.
(b) Such findings by the juvenile court shall constitute grounds for immediate termination of the parental rights of one (1) or both of the parents;
(vii)(a) That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances which prevent return of the juvenile to the family home.
(b) Provided, however, that the department shall make reasonable accommodations in accordance with the Americans with Disabilities Act to parents with disabilities in order to allow them meaningful access to reunification and family preservation services.
(c) For purposes of subdivision (b)(3)(B)(vii) of this section, said inability or incapacity to remedy or rehabilitate includes, but is not limited to, mental illness, emotional illness, or mental deficiencies;
(viii)(a) The parent is sentenced in a criminal proceeding for a period of time which would constitute a substantial period of the juvenile's life and the conditions in subdivision (b)(3)(B)(i) or (b)(3)(B)(ii) of this section have also been established.
(b) For purposes of subdivision (b)(3)(B)(viii) of this section, "substantial period" means a sentence, and not time actually served, of no less than fifteen (15) years, none of which has been suspended;
(ix) (a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
(1) Have committed murder or voluntary manslaughter of any child or to have aided or abetted, attempted, conspired, or solicited to commit the murder or voluntary manslaughter;
(2) Have committed a felony battery or assault that results in serious bodily injury to any child;
(3) Have subjected the child to aggravated circumstances;
(4) Have had his parental rights involuntarily terminated as to a sibling of the child; or
(5) Have abandoned an infant, as defined at § 9-27-303(2).
(b) Nothing in this chapter shall be construed to require reunification of a surviving child with a parent who has been found guilty of any of the offenses listed in subdivision (b)(3)(B)(ix)(a) of this section.
(c) (1) An order terminating the relationship between parent and juvenile divests the parent and the juvenile of all legal rights, powers, and obligations with respect to each other, including the right to withhold consent to adoption, except the right of the juvenile to inherit from the parent which is terminated only by a final order of adoption.
(2) (A) (i) Termination of the relationship between a juvenile and one (1) parent shall not affect the relationship between the juvenile and the other parent if those rights are legally established.
(ii) If no legal rights have been established, a putative parent must prove that significant contacts existed with the juvenile in order for the putative parent's rights to attach.
(B) (i) When the petitioner has actual knowledge that an individual is claiming to be or is named as the putative parent of the juvenile and the paternity of the juvenile has not been judicially determined, the individual is entitled to notice of the petition to terminate parental rights.
(ii) The notice shall identify the rights sought to be terminated and those which may be terminated.
(iii) The notice shall further specify that the putative parent must prove that significant contacts existed with the juvenile for the putative parent's rights to attach.
(3) An order terminating parental rights under this section may authorize the Department of Human Services to consent to adoption of the juvenile.
(4) An order terminating parental rights under this section does not preclude adoptive parents from allowing contact between an adopted child and the birth sibling or other birth family members.
(d) The court shall conduct and complete a termination of parental rights hearing within ninety (90) days from the date the petition for termination of parental rights is filed unless continued for good cause as articulated in the written order of the court.
(e) A written order shall be filed by the court or by a party or party's counsel as designated by the court within thirty (30) days of the date of the termination hearing or before the next hearing, whichever is sooner.
(f) After an order of termination of parental rights is filed, the court shall review the case at least every three (3) months when the goal is adoption and, in other cases, every six (6) months until permanency is achieved for that juvenile.
(g) (1) (A) A parent may withdraw consent to termination of parental rights within ten (10) calendar days after it was signed by filing an affidavit with the clerk of the juvenile court in the county designated by the consent as the county in which the termination of parental rights will be filed.
(B) If the ten-day period ends on a weekend or legal holiday, the person may file the affidavit the next working day.
(C) No fee shall be charged for the filing of the affidavit.
(2) The consent to terminate parental rights shall state that the person has the right of withdrawal of consent and shall provide the address of the juvenile court clerk of the county in which the termination of parental rights will be filed.
See also Hudson v. Kyle, 101 S.W.3d 202 (Ark. 2003). Arkansas Supreme Court case ruling that right to terminate parental rights only exists in adoption proceedings and for DHS.
Last Updated: August 13, 2003