Questions and Answers About Terminating Parental Rights
by: Iowa Legal Aid
What Are "Parental Rights?"
The easiest way to understand parental rights is to look at what happens when your parental rights to a child are terminated. When your parental rights to a child are terminated you stop being that child's parent in the eyes of the law. You no longer have the right to say where the child will live, or what kind of education or medical care the child will get, or what religion the child will be brought up in. You no longer have the right to get information about the child, such as school or medical records, child abuse reports, and information from law enforcement agencies and the courts. You cannot even have contact with the child unless the child's legal guardians say you can. There is a saying in the law that a parent whose rights to a child are terminated becomes a "stranger" to that child.
Why Are Parental Rights Terminated?
Only a judge can terminate someone's parental rights. In most cases, judges are asked to terminate a parent's parental rights by the state, or by whoever has been taking care of the child, usually the child?s other parent.
The state is represented in the court system by the county attorney. When a county attorney believes that a child in that county is in danger because his/her parents are not taking care of the child properly, the county attorney may file a special kind of case called a CINA, which stands for Child In Need of Assistance. If a judge decides the child does need assistance, then the Department of Human Services will try to help the parents take better care of the child. Sometimes this works, and the parents are able to go on raising their child. Sometimes the county attorney decides that the child is not going to be safe unless the child is taken away from his/her parents permanently. Then the county attorney will ask the judge to terminate the parents' parental rights.
It is also possible for someone who is not the county attorney to ask a judge to terminate someone's parental rights. Sometimes the parents live apart, and the child lives with one parent. The parent with whom the child lives is called the custodial parent. If the custodial parent gets married again, his or her new wife or husband may want to adopt the child. Before this can happen, the custodial parent will have to ask the court to terminate the other parent's parental rights (the other parent is called the non-custodial parent).
Sometimes the child is not living with either parent, but is being taken care of by a family member (such as a grandparent) or even a non-relative (such as a friend of the family). People like these can ask a judge to terminate the parents? parental rights too. They do this so that they can adopt the child themselves.
Whoever asks the court to terminate a parent's rights to a child, the court will not do it unless the person asking for the termination can show that the parent has abandoned the child or is a danger to the child.
How Are Parental Rights Terminated?
As we have seen, your parental rights can only be terminated by a judge, and only when somebody asks the judge to do it. You cannot ?give up? your parental rights, although if somebody asks the court to terminate your parental rights you can consent (agree) to the termination.
If you don't want your parental rights terminated, you have the right to a trial. It will be a "bench trial," which mean there will not be a jury. The judge will hear the evidence and make the decision. At your trial you have the right to present witnesses and other evidence. You also have the right to question the other side's witnesses and examine any other evidence they present.
Do I Have The Right To A Lawyer?
You always have the right to a lawyer in Iowa. The trouble is, in most cases you have to pay for one. There are a couple of exceptions: in a criminal case where the court could sentence you to jail or prison time, you have the right to a lawyer who is paid by the court if you cannot afford to pay one yourself.
Although parental rights terminations are civil, not "criminal" cases, you also have the right to a court-appointed attorney in these cases, so long as you can prove to the judge that you cannot afford your own attorney. "Court appointed attorney" is another way of saying an attorney whose fee is paid by the court.
It was not always this way. Until last year, you could only get a court-appointed attorney if the state was trying to terminate your parental rights. If the case was filed by someone else, like the child's other parent, you had to pay for your own lawyer or do without one.
That changed when a young woman we will call Amber (not her real name) applied for help at the Iowa City Regional Office of Iowa Legal Aid. Amber had given birth to a baby girl about two years before. This girl is known only by her initials, S.A.J.B., because Iowa law protects the identities of minors in the court system. Shortly after S.A.J.B. was born, Amber went to prison. When she got out, S.A.J.B.?s father asked the court to terminate Amber's parental rights. Amber asked the court for an attorney, but the court refused to provide her with one because her parental rights were not being terminated by the state. With the help of her Iowa Legal Aid attorney, Amber appealed this decision to the Iowa Supreme Court. Amber argued that it was not fair to give court-appointed attorneys to some people and not others simply because of who was asking the court to terminate their parental rights. Amber argued that this violated the Iowa Constitution, which says that the laws must apply equally to everybody. The Supreme Court agreed, and said that, from now on, the courts must provide an attorney to anybody who is facing the termination of his or her parental rights.
What To Do If You Are Facing Termination Of Your Parental Rights
Make sure you ask the court for an attorney immediately. Usually the clerk of court's office has a form you will need to fill out. Go to the clerk's office and get one. You will have to put down how much money you make, how much property you own, and other information about your household finances. Remember, you are only entitled to a court-appointed attorney if the judge decides you can't afford to pay for an attorney.
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