Criminal Defense Attorney / Divorce & Family Law Lawyer Austin Burdick's Law Blog

Termination of Parental Rights

3/26/2012

In order to terminate the parental rights of a parent the petitioner (DHR) must show by clear and convincing evidence that (1) the parents are unable or unwilling to discharge the duties of a parent, (2) the parents will be unable or unwilling to discharge their parental duties for the foreseeable future, and (3) that every alternative to terminating parental rights has been exhausted.

"Clear and convincing evidence" is an elevated standard of proof. In most civil cases the standard of proof is that of a "preponderance of evidence." That means in most civil cases where litigants are suing for money damages they must only show that it is more likely than not that they were harmed and are due compensation. In family matters the standard is elevated because we want to be absolutely certain before we infringe upon someone's constitutional rights and interfere with their right to parent their child. In essence, the law is written such that the scales are tipped in favor of a parent who has not previously been shown to be unfit. This places a heavy burden on DHR that must be scrutinized by the court.

Therefore DHR must show, by this elevated standard, that the parent is currently unwilling or unable to care for their children and that the parent will remain so for the foreseeable future. That means if DHR is trying to terminate your parental rights they must show that you have been unfit in the past, that you are unfit today, and that the evidence indicates that you will remain unfit in the future. If they cannot prove unfitness for each of these time periods then they should not succeed in terminating parental rights.

DHR must also show that there is no other alternative to termination of parental rights. If the children could have been placed with a relative, or if there is something else that could have been done to resolve the family's issues then the case is not ripe for termination. If you have had a case where you feel the court has wrongfully terminated your rights then you must act quickly. Your time for appeal is limited to 14 days. You must call an attorney as soon as possible to protect your rights and your family.

40 Comments

Rachel Jones

3/31/2012 03:57:25 pm

every caring parent needs to read this!

Demetrius

4/19/2012 06:15:18 pm

Ive had my rights taking away from me due to previous domestic issues with the mom. They base the case on what went on 2 yrs ago.....then its past the limitation for an appeal. What can I do??

Austin Burdick

4/19/2012 11:56:41 pm

You need to get your file and call me at 205.481.2131. We can review your file and in some cases we may be able to get the judgment set aside, file an appeal or find some other procedural remedy. Don't give up until you have tried everything.

carolyn metcalf

8/2/2012 03:59:12 am

i've had legal custody and guardianship of a brother and sister for five years the biological family has nothing to do with them in any way, i want to adopt them but since the rights of the mother weren't terminated im having a hard time getting help with this. kwestjen(kris) is about to be 7 and jamya is about to be 6 i am the only mom they know and my biological children are the only siblings they know please help me if you can Any suggestions or help would be greatly appreciated

don't know anymore

8/5/2012 03:46:49 am

The mother of my child never allows me to get him during my court ordered visitation. I have filed contempt of court and nothing ever happens to her. My child support is set at an amount I am unable to pay and every time we go to court to modify, nothing changes. She has had me arrested for domestic violence, in which the claims on the police report were completely inconsistent with what actually happened, and now I have been arrested for "non-support".She stated that I have am in arrears for $3000. I have paperwork from the state proving that this is not the case, however, I was arrested anyway. I am now required to post an all cash bond in the amount of $3000. How can I get the amount of bail reduced to the actual amount owed? I also want to voluntarily sign over the rights to my son. How do I go about this, and is it possible? I am just at my wits end. I am never able to see my child and serve only as a paycheck for the mother, an outlet for the her rage.

Austin Burdick

8/5/2012 10:44:25 pm

To try and get your bond reduced you need to hire an attorney to look at the paper work that you have and file a motion to have your bond reduced or have the writ of arrest lifted. As to your intention to terminate your own parental rights you may want to reconsider. In the last two years in Alabama the law has changed such that a parent who loses parental rights does not necessarily also lose their parental obligations such as child support. If the child were to be adopted by someone else then you could terminate your obligations to pay child support. If you would like some help on these issues, call us and set up an appointment. 205.481.2131

can you write my essay link

9/21/2012 09:05:44 pm

Parents' rights advocates claim that many parents' parental rights are unnecessarily terminated, and that children are separated from fathers and mothers and adopted through the actions of family courts and government social service agencies seeking to meet their own targets, rather than looking at the merits of each case. Thanks for sharing.

Sheena Terry

1/13/2013 01:37:42 pm

My child's father wrote me and told me when i have my son he will be happy to sign over all his rights. will that letter be enough to show proof and have him to sign over his rights?

Austin Burdick link

1/14/2013 11:33:24 pm

The short answer is no. Termination of parental rights can only been done by a judicial proceeding. A letter may serve as evidence to be used in a case but there still must be an adjudication on the matter. Courts are typically slow to terminate parental rights unless there is another person standing in the wings ready to take responsibility for the child such as a step parent. If you would like to discuss this further please feel free to call me.

S. Whitehead

2/15/2013 02:54:27 am

My ex signed his rights over to our 2 sons over 3 years ago because he could not afford to pay child support. We went through the courts and the judge signed it and everything. I no longer had to allow him visitation. But I do allow visitation when the children want to see him. I also allow them to talk to him when he calls. I try to do the right thing even though he didn't. He is remarried and has 2 girls with his new wife, I have also recently remarried. My question is this: Does he have grounds to get his rights back, by me allowing him to see the children? Also, if my husband wanted to adopt my sons, would my ex have to allow it or be notified? Thanks

E. B.

2/18/2013 12:39:39 am

My ex and I have been going through child support issues in court. He was just ordered to come up with $1,000 or he would go to jail. That was on the 12. My ex contacted me for the first time in almost a year last night, and I think he wants to terminate his rights. I went through DHR to get the child support order. And I filed contempt when he neglected to pay, and was behind more than $3,000. He has no job, and has been unemployed for at least two years. He has no real reason for being unemployed, and I'm fine with him terminating his paternity rights. Would rather have closure than constant court charades. Is it possible for him to terminate voluntarily? And at this point? Will I have to repay DHR and court fees?

Kit Coronado

4/16/2013 02:34:09 am

My husbands parental rights were terminated 4/18/2012. The court documents show that the courts terminated his rights but he said he signed a paper because his attorney told him that he didn't have a choice. The children were taken from the mothers care and when he went to claim them the DHR worker told him he could not.They did an investigation and he took parenting classes and did everything required by DHR and a couple months before court they reassigned him a different case worker who re-started his case from the beginning. He gave them his parents phone number to call and get them to get the children but his parents said they never received an odd Alabama number on their caller I.D. (They live in Texas.) He didn't tell them that the children were removed from his care because of the fear of offending his fathers culture, but he did question as to whether or not anyone called them frequently. He spoke to the foster parents frequently and went to visitation when he was granted but it was done through a third party and he was not allowed visitation very often. The mother was addicted to drugs for a prolonged period of time and she battled with DHR for a few years. He was never in question of whether he could care for the children until the mothers rights were terminated then they said because he works on the road frequently that he could not care for the children. He had living arrangements for someone, family to the children whom were cleared by DHR, but somehow it was looked upon like he could not care for his children. He still calls per allowance by the foster parents but they don't let him talk to the children very often and we have asked for recent pictures with no response as well as his oldest son asked when he could see him but my husband can not move without permission from the fosters, he is lost without them and I am at a loss for ideas because we don't have $10,000.00 to pay a lawyer because I go to school full time. Any advice would be appreciated.

KNichols

4/21/2013 02:41:04 am

My husband has had care, custody, control & the right to deny visitation of his child since 2003. The birth mother has had no contact in the last 10 years. My husband was awarded child support, finally, but has only been able to collect maybe 6 payments. The custody was awarded in Alabama, but the support was awarded in another state due to my husband being an active duty military member. We would love to have the BM's rights terminated, but it seems like terminating a mother's rights is this side of impossible. Years ago, my uncle's paternal rights were terminated by his son's mother by her taking an ad in the newspaper in the area he was last known to be in & he never contacted or responded. This was 10+ years ago. I was wondering if this is still a viable option for my husband & I now.

crystal

4/29/2013 04:59:48 pm

im doing a research paper concerning terminating parental rights. Is there any statute or case law that outline the process to terminate parental rights?

Amanda

6/1/2013 01:00:48 pm

After my divorce my ex-husband was convicted of child pornography which included my children but my children were not listed as the victim the state was? In the plea agreement it reads he can never come near my children, myself or our property. When he gets out my oldest will be 18. The baby 5 now has never known him he was only 1 year old and only saw him 1 time during our divorce because I was forced to do so. There are a lot not mentioned here. I have been told by several attorney's that the state would still view him as being able to change. I want his parental rights removed! Would this really be that difficult under the circumstances? Thank You

kandace edwards

6/28/2013 03:43:32 am

I was wondering in the state of alabama if your rights are volunteerly signed over by force can fight the system to get your children back??

Melissa Burdick

7/13/2013 09:43:25 pm

It may be possible depending on the facts of your case.

JENNIFER

7/17/2014 05:41:10 am

My ex has not seen our daughter in 6years nor has he paid child support (arrears 62K). He was in prison and in & out of jail for some of that time. My current husband of 5 years has filed a petiton for adoption which was denied over a year ago. We could not prove that my ex had been out of jail for more that 120 consecutinve days at a time within the 6 years. Since then, which has been well over 120 days, we have no idea of my ex's whearabouts and he still is not paying support. He only has supervised visitation (abuse) which he has never acted upon. Would there be any way in the state of Alabama to terminate his rights? What ways should we go about it?

Austin Burdick link

7/17/2014 01:11:50 pm

From the information that you provided you may be better off filing your case in probate as an adoption. You may be able to prove implied consent on the part of the child's father under the Adoption Code. This is not intended as legal advice. Additional information, if known, may change the appropriate course of action. I do advise that you meet with an attorney to discuss your options.

kita south

8/10/2014 04:41:29 am

Just received my final decree yesterday terminating my rights. I had a court appointed lawyer in the matter as I could not afford one. the day of court I told her if it went against me I wanted to file an appeal. the court date was April 8,2014 the day order filed in the clerk's office, may 19,2014 every since the court date I have called the lawyer asking if an order has come down, when I received a reply from her it was always the same she hasn't received anything. it wasn't til after I sent her one expressing my opinion that her, the judge and the other lawyers involve should have to go before an ethics coats and be disbarred for their unwillingness to up hold the law and the legal stance of the case( my children and I lived in tn, my dad filed for custody of 1 of the 4 kids I had in Alabama had papers sent to an empty lot in Alabama and basically lied in orginal petition sayin I abandoned him yet in court stated I was not the one whom left my child with him, my exhusband whom the children were left in the care of while I was out of town working was who did), that was Aug 4 I emailed her the postmark on the order she finally sent was Aug 6. How is that legal? Can I still file the appeal on my own since its obvious the court appointed lawyer did not do as she was asked and once again proving that no one

Austin Burdick link

8/10/2014 11:19:50 pm

Your appeal can still be filed but it will likely be dismissed as being untimely pursuant to the rules of procedure. You will have to make an argument that the rules of juvenile procedure violate equal protection and due process. You would have more time to file a post judgment motion if this were a domestic relations case. However, the rules are different for you in a TPR case though the rights involved are the same. You would likely have to take the matter then to the Alabama Supreme Court and argue that it is a matter of first impression. You can call my office to come in and get some materials to help you draft your brief.

Jenna

9/22/2014 09:28:42 am

my ex husband left two years ago. he abandoned me and our four children and left us with nothing. he took our entire tax return with him to be with some woman he met over the internet. he never sent any financial help, never called, never came to see our children, nothing. I tried to keep the father of my children in their lives but quit after almost two years of nothing from him. he wound up in jail onto be sent to another jail for something else in another state. I won legal and physical custody of my kids when I filed for divorce. I want him to give up his parental rights to my kids because he chose not to be in their lives anymore. can it be done?

Christine Powes

10/8/2014 01:02:26 am

I simply want to sign my rights to my daughter over to hr father. He is in AL with my daughter and I am active duty military stationed overseas. Do I have to go through court proceedings or can I just sign papers a d give them to him?

Austin Burdick

10/8/2014 01:30:40 am

I am not sure that is what you want to do. If you agree to have your rights terminated you will still have the obligation to pay child support without any right to see the child. Termination of rights can only be accomplished by court order.

10/8/2014 02:59:26 am

My husband has had care, custody, control & the right to deny visitation of his child since 2003. The birth mother has had no contact in over 10 years. My husband was awarded child support, finally, but has only been able to collect maybe 6 payments. The custody was awarded in Alabama, but the support was awarded in another state due to my husband being an active duty military member. We would love to have the BM's rights terminated, but it seems like terminating a mother's rights is this side of impossible. Her rights were terminated to an older child, & she has since lost custody of a younger child. 15+ years ago, my uncle's paternal rights were terminated by his son's mother by her taking an ad in the newspaper in the area he was last known to be in & he never contacted or responded. I was wondering if this is still a viable option for my husband & I now.

April

11/8/2014 04:10:03 am

My fiance and I have been together over 2 years, and he has two children (10 & 8) from a previous marriage that he has custody of. Their biological mother hasn't seen them nor made any effort to see them in over 7 years. She lives several states away. She has recently in the last year contacted me via Facebook, and has asked for updates on them, which I have given her. I want to adopt these boys, and am going to ask her to give up her parental rights so I can. If she says no, do I have grounds to take her to court to force her? She walked out over 7 years ago saying she wasnt meant to be a mom.

Brittany Miller

11/30/2014 08:17:16 am

My Husband had his daughter taken away 3 years ago due to being in jail and her getting molested during that time. The mother failed the physiological evaluation and couldn't get her. They told my husband he couldn't have her because of his record. What can we do?

Marion

1/20/2015 10:23:23 pm

I understand that a parent's rights can be terminated involuntarily if they are incarcerated. My ex-DIL has been incarcerated for a couple years of a 10 year sentence. My son has had custody of their 3 kids since 2005 because she was found passed out and kids neglected. Since then she has had multiple parole violations and is now in Tutwiler. My son has leukemia and his prognosis is not good. They have had a new mom for the past 8 years or so and we need to get parental rights terminated so she can adopt them before my son passes. Can this be done without a lawyer or is there a service we can utilize to petition the court?

Tiawanda Grace

5/27/2015 03:57:14 am

I have a question. Can u help moms who live in other states ( Dallas Tx

Rishard Rutledge

7/25/2015 10:18:39 pm

The mother of my son and daughter was murdered in May 2008. Leaving behind my 2 kids, and her younger daughter. The father of the younger daughter murdered the mom and subsequently commited suicide leaving the younger daughter without either parent. Since may of 2008 I've had custody of my son, and the paternal grandmother has had custody of my daughter and her sister to which I did not sign over parental rights to. My daughter has since then told me the grandmother is mentally and physically abused them, she also had drinking and gambling problems and she doesn't work. Her only income are the SS checks. How do I go about obtaining custody of my daughter?

Christina

8/27/2015 11:36:12 pm

My fiance has had full custody of his son, his ex wife was allowed supervised visitation once a month. She went about three years without coming to visit their son. His son has only known me as his mother. All of a sudden she wants to cone around and have unsupervised visits. We would like to terminate her rights because she's not to be trusted. We can't afford all the lawyer fees but we make too much to qualify for free help through dhr. I need advice!

ashley

12/31/2015 06:31:43 pm

I just took custody of my little cousin in October. His mother had him in rehab and dhr put him in foster care for about a month. I got him out till she could get back on her feet . She is not doing nothing the court told her to do. She doesn't even see her son. I have ask her to give rights away and she will not . She is back on drugs . We had court with the GAL on the seventh of Dec in Jefferson county and she still had not done anything. How long will they give her before they take her rights away .

kimberly tyler

1/27/2016 11:46:12 am

My kids father signed his parental rights away. And now he won't leave me or my kids alone. What can I do?

Melissa Burdick

1/28/2016 06:48:49 am

You may have several options. You may need to simply file a police report for harassment. If that does not work you can look at getting a restraining order put in place. It also depends on what you mean by your statement that he has signed over his rights. If his rights have been terminated by a court then the above discussed solution may be best. If he has simply lost visitation or parenting privileges then another approach may be called for. If you would like to discuss this matter further please call 205.565.8909.

Brittany Boler

4/30/2016 06:39:03 pm

I was dealing with Cps and they were going to take my rights away. Instead I signed my rights over to there aunt. Who is there father's sister. I now have no contact with my children. Not by choice either. What can I do? I want to be in my children's life's. I have no idea where to go to even get help. I got pregnant at 17 had him at 18 2 months later was pregnant with my daughter. Can someone please help me. I haven't seen my babies in over a year

Austin Burdick

5/2/2016 06:33:56 am

There may be very little that you can do. I am experience with appeals and undertaking the difficult task of going back and undoing tragedy in the family court system. I would need to see your entire file and have you in my office for a consultation. I would need to look for the smallest detail in the court records to find the kind of error that may make your case viable. I charge for a one hour meeting to review your file. If you want to meet call me at 205.565.8909. You will leave knowing exactly what you can and cannot do from a legal perspective.

Ray

11/11/2016 04:12:12 am

Hi I have a court appointed lawyer & We have file an appeal base on clear& convincing evidence & the court abused its discretion when it made evidentiary errors. There is clearly on recorded evidence that I met my ISP goals @ reunification. My referee judge through out my case at our last hearing even told DHR that she saw no reason to terminate my right but DHR filed TPR anyway & the judge changed but DHR & judge was all friends. My TPR trial lasted 2days 8 hours each day Every goal was made & even YV a contracted company set up by DHR argued on my behalf cause they couldn't understand why DHR wasn't trying to get my daughter home but my rights were still taking away on April 25, 2016. Can I get some advice & can I file A lawsuit???

Burdick

11/11/2016 09:57:04 am

Please call me if you would like to discuss a possible lawsuit. I can be reached at:

Austin Burdick
Burdick Law Firm
1020 9th Ave. SW
Bessemer, Alabama 35022
205.565.8909
austin.burdick@gmail.com
www.austinburdick.com

Kathy

4/3/2018 09:23:47 am

My son has had custody of his daughter for almost 3 years. His daughter will be 3 next month. Her mom has been in and out of jail for the last 3 years. She hasn't seen her daughter either. My son is now engaged and his daughter has only seen his girlfriend as a mother during this time. She is now wanting to adopt her. On top of all of this, they have had to take my grand daughter to counseling and will be doing test to determine if she has Fetal alcohol syndrome. How do we go about getting her rights taken away so that the adoption can take place?

Austin Burdick

4/3/2018 11:48:48 am

Call me to discuss (205.565.8909). You may be able to file for adoption and terminate rights all in one action if you can satisfy the legal burden of consent or implied consent to the adoption. If you call me we can discuss this in more detail.

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Austin Burdick is an experienced appellate and constitutional attorney.

Contact Austin at 205.565.8909

Termination of Parental Rights

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