The Utah Legislature's Competing Goals and Termination of Parental Rights

The Utah legislature wants to both protect parents' constitutional rights and protect children. This is post is about how the Utah Adoption Act is the Utah legislature's attempt to fulfill both important goals.

On one hand:

1. Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent's children. A fundamentally fair process must be provided to parents if the state moves to challenge or interfere with parental rights. A governmental entity must support any actions or allegations made in opposition to the rights and desires of a parent regarding the parent's child by sufficient evidence to satisfy a parent's constitutional entitlement to heightened protection against government interference with the parent's fundamental rights and liberty interests and, concomitantly, the right of the child to be reared by the child's natural parent.

2. The fundamental liberty interest of a parent concerning the care, custody, and management of the parent's child is recognized, protected, and does not cease to exist simply because a parent may fail to be a model parent or because the parent's child is placed in the temporary custody of the state. At all times, a parent retains a vital interest in preventing the irretrievable destruction of family life. Before an adjudication of unfitness, government action in relation to a parent and the parent's child may not exceed the least restrictive means or alternatives available to accomplish a compelling state interest. Until the state proves parental unfitness, and the child suffers, or is substantially likely to suffer, serious detriment as a result, the child and the child's parent share a vital interest in preventing erroneous termination of their natural relationship and the state cannot presume that a child and the child's parent are adversaries.

3. It is in the best interest and welfare of a child to be raised under the care and supervision of the child's natural parents. A child's need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child's natural parents. Additionally, the integrity of the family unit and the right of a parent to conceive and raise the parent's child are constitutionally protected. The right of a fit, competent parent to raise the parent's child without undue government interference is a fundamental liberty interest that has long been protected by the laws and Constitution and is a fundamental public policy of this state.

4. The state recognizes that: a parent has the right, obligation, responsibility, and authority to raise, manage, train, educate, provide and care for, and reasonably discipline the parent's child; and the state's role is secondary and supportive to the primary role of a parent.

5. It is the public policy of this state that:

--a parent retains the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of the parent's child;

--a parent retains the right to have contact with the parent's child when the child is placed outside of the parent's home, and parent-time should be ordered by a court so long as the contact is not contrary to the best interest of the child; and

--a child has the right to have contact with the child's sibling when the child is placed outside of the home and apart from the child's sibling, and sibling visits should be ordered by a court unless the contact would be contrary to the safety or well-being of the child.

Citation: U.C.A. 80-4-104

On the other hand:

1. The State (meaning we the people acting through our elected officials) has the power of "parens patriae." This is Latin for "parent of the nation" or "parent of the country" and means the Government has parental power when it wants to exercise such. For example, when parents neglect the medical needs of their children, the State can seek a judicial order for medical treatment to be given to the child. This is the authority underlying the power of DCFS to take temporary custody of a child and then get judicial approval for placing the child in state-sponsored foster care.

2. If a parent is found, by reason of the parent's conduct or condition, to be unfit or incompetent based upon any of the grounds for termination described in this part, the juvenile court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.

3. Subject to certain rules, if the juvenile court finds termination of parental rights, from the child's point of view, is strictly necessary, the juvenile court may terminate all parental rights with respect to the parent if the juvenile court finds any one of the following:

(a) that the parent has abandoned the child;

(b) that the parent has neglected or abused the child;

(c) that the parent is unfit or incompetent;

(d) that the child is in State custody and the parent has been unable or unwilling to remedy the

problem underlying the child's removal;

(e) failure of parental adjustment; or

(f) that only token efforts have been made by the parent to communicate with the child.

Citation: U.C.A. 80-4-301

If you are interested in browsing actual court opinions, you can go to the Utah Courts webpage and search for your keywords such as "parens patriae" or "token efforts to communicate."

At the Utah Adoption Law Center, we help parents who want to adopt explore the evidentiary and legal landscape to determine if they want to go forward with a petition for termination of parental rights and adoption. We come up with a strategy. Sometimes, parents decide to go forward, and other times they decide to put things on hold for a while. If you have questions, you can schedule a consultation with a UALC attorney by calling or texting 385-200-1972 or 435-592-1235. Or, send us an email at info@utahadoptionlawcenter.com. We look forward to serving you!