Can Parental Rights be Terminated without Adoption?

Some people ask whether a biological parent's rights can be terminated without adoption--in a standalone case.  This is a great question.

Here’s the story:  Mom and Dad had a child out of wedlock and Dad’s name was put on the birth certificate.  He thus has a right to be notified of an adoption. But Mom is not remarried so adoption by a stepfather is not an option right now.  Rather, Mom wants to have Dad’s parental rights terminated because he has not been paying child support, he’s been in and out of jail, and he has not had any significant contact with the child for several years. The child has no real bond with Dad.  So, Mom wants a court to terminate Dad's parental rights terminated so she need not worry about him ever seeking custody. She essentially wants a “legal divorce” between the father and the child. 

This is a somewhat common question, the answer to which needs a little explaining.  Courts are generally reluctant to grant a termination of parental rights petition for a few reasons:  Utah law states that the “best interest of the child” is a pre-requisite for termination of parental rights.  Due to her legal relationship with the Dad, the child has a right to inherit from Dad's estate upon his death. That right could be worth thousands and thousands of dollars. (What if the father wins the lottery a week before he dies, and thus dies a millionaire?) Terminating the child's rights might not in her best interest because it would erase her right to inherit from her father.

Often, a birth mother is worried that the birth father will get custody of the child if the mother develops an incapacitating health problem or dies. Realistically, if the birth mother becomes incapacitated or dies, another relative (probably on the mother's side) would petition the court for guardianship of the child. If the biological father is a stranger (or emotional danger) to the child, a court will be very careful about immediately putting the child in Dad's custody. Rather, a guardianship would likely be preferred. Under a guardianship, "[a] parent of a minor for whom a guardian is appointed retains residual parental rights and duties." U.C.A. 75-5-209(5). Those residual parental duties are outlined in the Utah Juvenile Code and include "the responsibility for support." U.C.A. 80-1-102(71)(a). A guardian is not required to spend his or her own money to support the child (ward). Specifically, Utah Code 75-5-209(4)(a) provides that a guardian is not "legally obligated to provide from the guardian's own funds for the ward." In short, the child can be safe with a guardian and have (perhaps) financial security from her biological father. Courts are often reluctant to leave a child financially vulnerable through terminating a parent's rights where the child may have a biological parent with plenty of money to provide for that child.

So what can the concerned birth mother do? A few options include:

(1) fostering strong relationships with other adults (grandparents or others) who could step in and raise the child if the mother passes,

(2) nominating a guardian for the child in the mother's Last Will & Testament, and

(3) signing a separate "Nominating of Guardian" using a form from the Utah Courts website. These options increase the chances of the child going into the safe care and custody of a guardian while retaining the child's right to inherit and receive child support (perhaps with ORS assistance) from her biological father.

At Utah Adoption Law Center, we love providing tailored guidance to our clients to help them achieve their goals. Please call us at either (385) 200-1972 or (435) 592-1235 for help with your questions about adoption and/or terminating parental rights. We're here to help!