Terminating Parental Rights - new case

From Indiana's Court of Appeals came a new case on terminating parental rights, due process, and local rules, and attorneys withdrawing from a case. Termination of Parental Rights of D.A., D.A., D.A.; Herman Andrews v. Monroe County Department of Child Services is a 20-page opinion in PDF format but worth the time.

Terminating Parental Rights - a follow up

In an earlier post, I wrote that an agreement by the parents to voluntarily terminate parental rights was against the law (the technical term for any other lawyers reading this - void as being against public policy). I had to do some research last week while in Indianapolis and I noticed a citation to In re the Matter of Hambright. In Hambright, Indiana's Supreme Court wrote the following:

It has long been held that “the right to support lies exclusively with the child, and that a parent holds the child support payments in trust for the child’s benefit.” Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind. Ct. App. 1997), trans. denied. The custodial parent acts as a trustee of the payments and is to use them for the benefit of the child. Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind. 1994). As the constructive trustee, the custodial parent may not contract away the benefits of the constructive trust, and neither the parents nor the child may informally effect a modification or annulment of accrued benefits. Cf. Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997).

I added the emphasis above. I see no difference between contracting away benefits and signing an agreement with the other parent to give up parental rights. Since that termination cannot be done, the parent paying support remains obligated for that support. I do not think that the payor suckered into this kind of an agreement can argue waiver against the custodial parent - the custodial parent acts as a trustee for the children and the children did not agree to
terminate the parental rights and their child support.

All this did get me thinking down a line of argument that I never considered before. I wonder if the making of such an offer does give the non-custodial parent (assuming the custodial parent makes the offer and if not, then is argument lacks any application) grounds for modification of custody? By making this offer, the custodial parent is not thinking of the children's best interests or upholding the fiduciary duty of a trustee.

One might want to think on the following from Mariga v. Flint, 822 N.E.2d 620 (Ind. Ct. App. 2005):

...Whether a parent is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations, and duties. That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children’s other parent. To the contrary, of key importance is the relationship between parent and children, not between parent and parent. What we must focus on is the duties owed by a parent to her children, and those duties do not evaporate along with the relationship between the parents—indeed, those duties do not evaporate even if the relationship between parent and children deteriorates.

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.