Brief Summary Of Statutory Law Governing The Termination of Parental Rights In California
This is a brief summary of the basic statutory law regarding the termination of parental rights in California, which I have adapted from a Petition I recently submitted on behalf of a client seeking to terminate the parental rights of her son's absentee father. I am posting it here in a Q&A format because I found very little on the termination of parental rights outside of the adoption context, and the Clerk's office was also disturbingly unfamiliar with the statutorily authorized process outside of that context.
Who is statutorily authorized to file a petition to terminate parental rights?
The California Family Code authorizes an “interested person" – defined as “one who has a direct interest in the action" – to file without fee, a petition for a proceeding to be brought for the purpose of freeing a child from the custody and control of either or both parents, in the county in which the child resides or is found, or in which the acts giving rise to the proceeding are alleged to have occurred. (See Family Code §§ 7841, 7802; 7806, 7820, 7845).
What costs is the Petitioner statutorily required to pay?
The Petitioner’s liability for costs incurred in connection with the termination of parental rights, including but not limited to investigation costs, shall not exceed $900.00, and “[t]he court may defer, waive, or reduce the costs when the payment would cause an economic hardship which would be detrimental to the welfare of the child." (See Family Code § 7851.5).
Does the statute entitle the parents to be appointed counsel?
“If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel, unless that representation is knowingly and intelligently waived." Private counsel thus appointed shall be paid a reasonable sum for compensation and expenses, either by the real parties in interest other than the child, or if the court finds that the real parties in interest are unable to afford counsel, out of the general fund of the county. (See Family Code § 7863).
Does the statute require the Court to consider the wishes of the child?
The Court “shall consider the wishes of the child, bearing in mind the age of the child, and shall act in the best interest of the child." (See Family Code § 7890).
Does the statute authorize the taking of the child’s testimony?
“The testimony of the child may be taken in chambers and outside of the presence of the child’s parent or parents if the child’s parent or parents are represented by counsel, the counsel is present," and certain other enumerated circumstances exist. (See Family Code § 7892).
Does the statute establish what must be proven with regard to an absentee parent?
“A declaration of freedom from parental custody and control … terminates all parental rights and responsibilities with regard to the child," if the evidence clearly and convincingly demonstrates that the child comes within any one of several statutorily defined categories, including, in particular, when one parent leaves the child “in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child." (See Family Code §§ 7803; 7821, 7822(a)(3), 7892(c)). The “failure to provide support" and/or “the failure to communicate" with the child “is presumptive evidence of the intent to abandon," and “the Court may declare the child abandoned by the parent" if the parent has made “only token efforts to support or communicate with the child." (See Family Code §§ 7822(b)).
Does the statute specify who is bound by an order/judgment freeing a child from parental custody/control?
“An order and judgment of the court declaring a child free from the custody and control of a parent or parents […] is conclusive and binding upon the child, upon the parent or parents, and upon all other persons who have been served with citations by publication or otherwise" as provided by law. (See Family Code § 7894).