TERMINATION OF PARENTAL RIGHTS

On April 18, 2016, Governor Phil Bryant signed into law  HB1240SG which adopted the new Mississippi Termination of Parental Rights Law.  That act repealed former Mississippi law dealing with Termination of the Parental Rights of Unfit Parents found in Title 93, Chapter 15, Miss. Code Ann. as well as that portion of Title 93, Chapter 17, Miss. Code Ann. which concerned termination of the parental rights of natural parents whose children were being adopted. This is brand new law which is still under development at this time.  Please consult the new Termination of Parental Rights Law before filing a TPR action as the law contains many changes from prior practice.  Even so, the theories and principles espoused in the article below published with reference to the old law generally remain in effect in the Second Chancery Court District.  Please see the FORMS page for a written Voluntary Release of Parental Rights which complies with the new act.

My take on the new law is encompassed in my response to an inquiry from an attorney:

We [Chancellors] have been told that there is no longer any difference between a contested and an uncontested adoption in so far as TPR is concerned. We are required to appoint a GAL even in grandparent or step-parent adoptions where natural father signs up and agrees. The consent to adoption and surrender of parental rights must comply with the requirements of the new statute. Of course, there must also be a waiver of process but now, under this new statute, there is no longer a requirement that the waiver be signed on a day following the filing of the petition as is required under MRCP 4. In fact, the waiver of process can be signed up to 90 days before the date of the filing of the action. I can only hope that the Supreme Court will be of the opinion that MRCP 81(a)(9) resolves this conflict and that the statute does indeed control the issue. I see this as a potential trap for some attorney to walk into if the Court sees it differently. Personally, I would use a joinder instead of a waiver, just in case the Supreme Court has some notion about following its rule 4(e). [The statute does provide: “a written waiver of service of process and a consent to be voluntarily joined as a co-petitioner.” I think that is what the Supreme Court will go with; that plus 81(a)(9).] Once the natural parent has signed the voluntary surrender and the joinder, you will then petition the court to accept the natural parent’s voluntary surrender of rights and the court will have a hearing on that issue, which could be on the same day the underlying adoption is heard. Following the hearing, the court may accept the voluntary surrender and allow you to proceed with your adoption if the court makes certain findings required by the new law. If not, no TPR; no adoption.

Based upon what I have been told, the newly adopted policy behind this change is, as I understand it, that TRP is a very serious matter and the courts need to be sure that natural parents fully understands all relevant legal issues affected by his/her voluntary surrender of parental rights because they are not capable of doing that without the guidance and protection of the court. Succinctly, all natural parents need the State to protect them.  Although I vehemently disagree, that is apparently the new state policy.

Apparently, it’s a new world as far as adoptions are concerned. Good luck.

HDCII
Chancellor

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From time to time, mothers of a minor child or children [hereinafter child] have appeared before the Court seeking to terminate the parental rights of the father of the child, but no adoption of the child is pending, or even contemplated. In some situations, the father has joined in the petitions or has signed and filed a waiver of process and joinder, also asking that the Court terminate his parental rights and thus, his obligation of support, thus, leaving the child without a father. In such circumstances, at least two issues are presented.

First, there are two different statutory schemes which address the jurisdiction of the Chancery Court to terminate parental rights:

  • Title 93, Chapter 17, Miss. Code Ann. is titled, and concerns, Adoption, Change of Name, and Legitimation of Children. More specifically, Miss. Code Ann. §93-17-7 concerns the granting on an adoption of a child over the objection of the natural parent, and enumerates how the parental rights of a natural parent may be terminated in an adoption proceeding. These sections specifically address adoption proceedings. Thus, they have no applicability to the scenario referenced  above.
  •  Title 93, Chapter 15, Miss. Code Ann. is titled, and concerns Termination of Rights of Unfit Parents . This is the section most often cited to the Court in the  scenario above referenced. Miss. Code Ann. §93-15-103(1) provides:

(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds  to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in anygiven case. [emphasis added]

The Mississippi Court of Appeals addressed this very issue in LePori v Welch, 93 So.3d 66 (Miss.App. 2012), wherein Justice Maxwell, speaking for a unanimous Court, held:

¶ 6. It is clear from the plain language of section 93–15–103—as well as the cases that have applied this section— the concern of the statute is when a parent’s rights may be terminated in order for the child to be adopted. [emphasis in original] Thus, it is clear that §93-15-103 applies only situations where the parental rights of a parent are being terminated in order to allow for a subsequent adoption.

Thus, in the opinion of this Court, there is no cause of action in Mississippi Courts for termination of parental rights of a parent unless that termination is in contemplation of a pending or impending adoption proceeding. It should not be
forgotten, however, that no Petition for Certiorari was filed with the Mississippi Supreme Court in the LePori case.

Second, even if the Chancery Courts of Mississippi had jurisdiction to terminate parental rights of a parent outside the context of an adoption, there is, as always, the issue of the best interest of the child. Thus, the question must be asked by the Court: Is it in the best interest of the minor child that the parental rights of their father be terminated?1

a. In most situations, the mother alleges, and sometimes the fathers agree, that the father has not visited with the child, has not developed a relationship with the child, has not supported the child and is, in general, just a bad person. Even if
true, that, in and of itself, does not answer the question. The issue is what is in the best interest of the child. If the father refuses to visit, terminating his parental rights rectifies nothing. If the child is afraid of the father and does not want to
visit, Chancery Courts have the authority to suspend or even terminate visitation in appropriate, extreme cases. In other words, if the father is truly a “bad person,” and the bad relationship between the child and the father is the fault of the father, the Court can tell him to stay away. The Court has methods and means with which to protect the child. It is not always necessary to terminate a father’s obligation to support a child in order to protect the child. They are two distinct
issues.

b. The law recognizes that a parent has a legal and moral obligation to support his/her child. That obligation should not be relinquished nor terminated lightly. It is easy to see why a father, who does not want to be a father and does not want a
relationship with his child, would want to terminate his obligation to support the child. It is more difficult to understand why it is in the best interest of a child to give up the right to be supported by a parent. If a parent has the ability to support the child and just refuse to do so, there are remedies. Also, don’t forget, the father might be run over by the train. Would the child’s cause of action for wrongful death be adversely affected by a termination of the father’s parental rights?

1 In order to sever the rights of a natural parent, the burden is upon the petitioner to show by clear and convincing evidence [ see De La Oliva v. Lowndes County Dept. of Pub. Wel., 423 So.2d 1328 (Miss.1983) ] that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child. Once that has been established, the best interest of the child is to be considered. See Ford v. Litton, 211 So.2d 871 (Miss.1968). Lauderdale County Dept. of Human Services by Barnett v. T.H.G., 614 So.2d 377 (Miss.,1992). [emphasis added]