Termination of Parental Rights and Step Parent Adoption
Our office handles stepparent adoption matters. We had a contested trial this week in a case where we filed a petition for the freedom from parental control or to terminate the parental rights of the biological father. This petition was filed under Family Code, Section 7822(b). The failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents. As I have said many times before, family law has many presumptions and in this case, this is no different. The law says that you have abandoned your child if you fail to communicate or fail to pay support for one year. That is presumptive evidence of abandonment. The burden would then shift to father to prove that he did not intend to abandon the child.
In our case, mother had a little boy age 7. She has remarried and the new husband has retained our office for a step parent adoption. The first step in a step parent adoption matter is to terminate the rights of the other parent. Either the other parent signs a consent to terminate his parental rights or there has to be a contested hearing. In our case, despite not seeing the child in over 3 years, the father contested the petition and refused to sign the consent document. The matter was referred for a recommendation from the probation department about the termination of parental rights. In this case, the recommendation was to terminate the parental rights of the biological father. Father has not participated in the child's life for over three years. It had been over three years since the biological father has seen the child or even spoke to the child. Father has also refused to pay financial support despite court orders to the contrary. Father testified that he did not know where mother was living despite acknowledging on cross examination that she has had the same phone number for the last 10 years. Father at first denied that he knew where maternal grandmother lived but then acknowledged that he in fact used to live there and knows where she lives. She has lived in the same house for over 25 years. In short, father has had a way to get in contact with the mother but simply couldn't be bothered. This is somewhat typical in these types of cases. The father disappears and can't be bothered with the child support and financial obligations until mother files for a termination of parental rights.
In this case, the court granted the freedom from custody and control and terminate the parental rights. This order will now allow the adoption to proceed so step-dad can adopt the child. In this case, it certainly was in the best interest of child to terminate the biological father's rights to allow the step father to proceed with the adoption. This is the father the child has known for the last three to four years because biological father was no where to be found. Father could not rebut the presumption that he failed to communicate and failed to support his child and thus abandoned him.
If you have questions about a step parent adoption matter, contact the Law Offices of H. William Edgar for a free consultation. The issues here will be "did the other parent intend to abandon the child." The code provides a presumption for abandonment but it is a very high standard because you are terminate a fundamental right to parent your child. In fact, because this is a fundamental right, the other parent is entitled to an appointed attorney. In other words, these types of cases are not taken lightly by the court in light of the serious ramifications of the order.