Wednesday, February 28, 2007

Terminating Parental Rights in Indiana

About once a year someone asks how to terminate the non-custodial parent's parental rights. The reasons seem to fall into some variant of the other parent being a bad person, the other parent has nothing to do with the child, the mother wants the other parent to have nothing to do with the child, or the custodial parent will not let the other parent visit the child.

The Indiana Code devotes an entire Article of the Family Code to terminating the parent-child relationship. None of the grounds I listed in the first paragraph suffice for terminating the parent-child relationship under IC 31-35. Even more to the point, nothing in IC 31-35 permits the unilateral termination of parental rights by one parent.

The parents can agree to a state agency or a private adoption agency taking the child and putting the child up for adoption. That cuts off the parental rights of both parents. That is the only voluntary termination allowed by the Indiana Code.

If the child is determined to be a child in need of services (CHINS) or a delinquent child, the Indiana Code provides a procedure for terminating parental rights. Only the the attorney for the county office of family and children, the prosecuting attorney, the child's court appointed special advocate, or the child's guardian ad litem can file a petition under this statute. The statute has very specific grounds for terminating parental rights. Again, the statute cuts off the parental rights of both parents.

A similar
procedure to the second one exists where one parent commits one of the following crimes against the child:

(A) murder (IC 35-42-1-1);
(B) causing suicide (
IC 35-42-1-2);
(C) voluntary manslaughter (
IC 35-42-1-3);
(D) involuntary manslaughter (
IC 35-42-1-4);
(E) rape (
IC 35-42-4-1);
(F) criminal deviate conduct (
IC 35-42-4-2);
(G) child molesting (
IC 35-42-4-3);
(H) child exploitation (
IC 35-42-4-4);
(I) sexual misconduct with a minor (
IC 35-42-4-9); or
(J) incest (
IC 35-46-1-3)
The child needs to have been less than 16 years old. Again, the other parent has no standing to bring this type of termination.

Outside of IC 31-35 exists one other means of terminating a non-custodial parent's parental rights. That is IC 31-19-15-2 - a stepparent adoption.
(a) If the adoptive parent of a child is married to a biological parent of the child, the parent-child relationship of the biological parent is not affected by the adoption.
Unless the non-custodial parent has not supported the child or had significant communication with the child for 1 year, then the non-custodial parent's consent is required for the adoption.

This information generally results in an unhappy client interview.

Yes, there are judges who will sign off on agreements submitted to them which purport to terminate parental rights. I never advise my clients to sign these agreements. The reasoning is quite simple:
  1. Indiana clearly states that child support is money held in trust by the custodial parent for the child.
  2. The custodial parent cannot voluntarily forgo child support (which is borne out by the Child Support Guidelines requiring a written explanation for any deviation from the Guidelines).
  3. Indiana law specifies the ways that a parent-child relationship can be terminated.
Upon these premises comes the conclusion that a voluntary, one-sided termination of parental rights is actually unenforceable. To be extremely technical, any such agreement is void as against public policy. Now to put a point to this exercise: the non-custodial parent could easily become responsible for child support at a later date, long after the non-custodial parent thought they were from any such obligation. So, I do not advise my clients to ever sign anything from the custodial parent purporting to terminate their parental rights.


Anonymous said...

in your blog you wrote" Unless the non-custodial parent has not supported the child or had significant communication with the child for 1 year, then the non-custodial parent's consent is required for the adoption." am I understanding correctly that after one year of the non-custodial parent not having contact and not paying child support that the custodial parent would not need to have the non-custodial parents signature to let a new spouse adopt the child(ren) in question?

Sam Hasler said...

This is the statute:
IC 31-19-9-8
Consent to adoption not required; written denial of paternity precludes challenge to adoption
Sec. 8. (a) Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following:
(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.

Anonymous said...

Does this apply to a non-custodial parent in prison? My ex won't pay child support and won't visit, but is now currently incarcerated in the IDOC until spring of next year. Would I be able to have my husband now adopt my daughter without her bio dad's consent? (She calls my husband her father because she has no recollection of her bio dad) I just want to make sure I understand.

Sam Hasler said...

Please notice my disclaimer above - I cannot and will not give answers to specific legal questions.

I would say you have a grasp of the idea but have not read the statutes. The adoption statute speaks of a lack of significant communication. That is different from visitation. I have a link to the statutes so that they can be read.

CC said...

Is it possible to terminate parental rights to a child that I signed paternity for 10 years ago? I have strongly suspected now for several years that this is not my biological child but have not been able to find the resources to do anything about it. I have not had visitation for several years but have maintained child support throughout.

Sam Hasler said...

I laid out the grounds for termination in the original post. If you look under the archives labeled paternity you will find some articles on setting aside a paternity case.

Answer is generally: no.

Anonymous said...

My sons biological father is willing to sign over his parental rights and my ex husband that has been in my sons life since he was 10 months old is wanting to adopt him! How would I go about doing that?

happilyeverafter said...

My ex husband has not paid through the courts for over 4 years, has not sent anything for 1 year and has not seen my daughter for two years, the last time being for a 3 day visit when a protective order was granted. She calls my husband dad and has said that she wants her last name to be the same as ours. Her bio dad calls infequently and is sometimes drunk and or clearly on some kind of drug. How easily can i revoke his rights?

Sam Hasler said...

I cannot answer specific legal questions on this blog - see the disclaimer on the right hand side of the blog.

I suggest that you contact a lawyer about an adoption.

Anonymous said...

If I am understanding this correctly then a non-custodial parent cannot terminate his rights in order to get out of paying child support in the state of Indiana?

Sam Hasler said...

I think that pretty much sums what the statute says.