Parental Termination: Do you have a case?

by | Mar 21, 2022

Terminating parental rights can be a challenging procedure. It is important to find an attorney to help you form a legal strategy and navigate through the litigation. When an absent parent does not want to be involved with the children, he or she may voluntarily terminate his or her own rights by signing an affidavit of voluntary relinquishment. If the court finds that termination is in the best interest of the child, it can order termination and effectively cut off the terminating parent’s legal responsibility and connection with the child. When termination is not agreed, the party seeking to terminate the other party’s rights has the burden of proving that the involuntary termination is in the best interest of the child. Whether you are dealing with voluntary or involuntary termination, a court still has the final say and can only terminate the parent-child relationship with a court order.

How to Involuntary Terminate the Parent-Child Relationship?

To the start the termination process, you must first file a petition with the court in the county that you reside in. The petition does not require you to specify the underlying facts that warrant the termination as long as the petition alleges, in statutory language, the ground for termination and that the termination is in the best interest of the child. After filing the petition, you must have the other parent served with the petition to notify the other parent about the suit and provide that parent with a chance to respond to the suit. Before we address the statutory grounds for termination, it is important to note that courts heavily favor children having both parents in their lives. The stakes for termination are high. The court takes this request very seriously. For a court to terminate a parent-child relationship, Family Law Code Sec. 161.001(b) provides that the parent facing termination must have committed one of the following acts:

  1. The parent has voluntarily left the child alone or in possession of another non-parent and does not have an intent to return.
  2. The parent has voluntarily left the child alone or in possession of another non-parent without expressing the intent to return, without providing support for the child, and has remained away for at least three months.
  3. The parent has voluntarily left the child alone or in the possession of another without providing support for the child and has remained away for at least six months.
  4. The parent has knowingly placed or allowed the child to remain in conditions which endanger the physical/emotional well-being of the child.
  5. The person has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical/emotional well-being of the child.
  6. The parent has failed to support the child in accordance with his or her ability for one year and ending within six months of the date of filing of the petition.
  7. The parent has abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained.
  8. The parent has voluntarily and with knowledge of a pregnancy abandoned the mother of the child during pregnancy and through birth, failed to provide support or medical care for the mother, and remained apart from the child or failed to support the child since birth.
  9. The parent has refused to submit to a reasonable and lawful order of a court. (add more)
  10. The parent has been the cause of failure of the child to be enrolled in a school and has been the cause of child’s absence from the child’s home without consent of the other parent with no intent to return.
  11. The parent has executed an unrevoked and irrevocable affidavit of relinquishment of parental rights.
  12. The parent has been convicted or been placed on community supervision for being criminally responsible for the death or serious injury of a child, or adjudicated for conduct causing the death or serious injury of a child that would constitute a violation of one of the following: murder, capital murder, manslaughter, indecency with a child, assault, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, elderly or disabled, abandoning or endangering a child, prohibited sexual conduct, sexual performance by the child, possession or promotion of child pornography, continuous sexual abuse of a young child or disabled person, trafficking of persons, and compelling prostitution.
  13. The parent had the parent-child relationship terminated with respect to another child.
  14. The parent constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the DFPS for not less than six months.
  15. The parent failed to comply with provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the DFPS for not less than nine months as a result of the child’s removal from the parent for abuse or neglect.
  16. The parent used a controlled substance in a manner that endangered the health and safety of the child and failed to complete a court-ordered substance abuse treatment program or continued to abuse a controlled substance.
  17. The parent knowingly engaged in criminal conduct that has resulted in the parent’s conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of filing petition.
  18. The parent has been the cause of the child being born addicted to alcohol or controlled substance.
  19. The parent has voluntarily delivered the child to a designated infant care provider.
  20. The parent has been convicted of murder of the other parent, criminal attempt, criminal solicitation, or sexual assault of the other parent.
  21. The parent has been placed on community supervision for being criminally responsible for sexual assault of the other parent.

Meeting more than one of these factors is helpful, however, only one factor is required. In addition to establishing that one of the factors above exists in your case, the court must find that termination is in the best interest of the child. One reason terminating parental rights is so difficult is because the courts have a high standard, making the party seeking termination show that the other party’s rights should be terminated by clear and convincing evidence. Basically, you must be able to show termination is necessary with concrete facts. Alleging conclusory statements with little to no factual specificity will likely not lead to parental termination.

What is the Best Interest of the Child?

While courts heavily favor that a child have both parents in his or her life, if there is clear and convincing evidence that termination is necessary, a court will order it so long as it is in the best interest of the child. In determining whether termination of the parent-child relationship is in the child’s best interest, courts apply the Holley factors, as outlined in the 1976 case Holley v. Adams, to shape their analysis. To determine the best interest of a child, courts will analyze:

  1. The desires of the child,
  2. The emotional and physical needs of the child now and in the future,
  3. The emotional and physical danger to the child now and in the future,
  4. The parental responsibilities of the individuals seeking custody,
  5. The programs available to assist these individuals to promote the best interest of the child,
  6. The plans for the child by these individuals or by the agency seeking custody.
  7. The stability of the home or proposed placement,
  8. The acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and
  9. Any excuse for the acts or omissions of the parent.

Holley v. Adams, 533 S.W.2d 367, 371-72 (Tex. 1976). Prompt and permanent placement of the child in a safe environment is presumed to be in the best interest of the child. If you are the parent that is providing that safe environment while the other parent fails to do the same, you have a strong case for termination. A court can measure a parent’s future conduct by his or her past conduct in determining whether termination would be in the child’s best interest.

Termination Typically Requires an Attorney Ad Litem for the Child

While you and the other parent may be represented by an attorney in a termination proceeding, the court typically requires that the child be appointed an Attorney Ad Litem. An Attorney Ad Litem is an attorney who is appointed to provide legal services to a child who is the subject of a termination proceeding. Courts want to ensure that the child’s interests are adequately represented in court. Because a termination can involve litigation between two parents, arguably, a child’s interests are not accurately represented by either party. While one party may desire termination, it is sometimes not best for the child. In rare instances, the Court will find that an Attorney Ad Litem is not necessary. Family Law Code Sec. 107.021(a-1) provides that the court will appoint either an amicus attorney or an attorney ad litem to a child unless the court finds that the interest of the child will be represented adequately by a party to the suit whose interests are not in conflict with the child’s interest. The court will consider the ability of you and the party to pay reasonable fees to the appointee and balance the child’s interests against the cost to you and the other party that would result from an appointment. Previous court decisions have heavily favored attorney ad litem for children because they benefit the child and seek to accurately represent the child’s needs and interests. It is likely that in your case courts will require one as well.

Don’t Give UpMajda Mustedanagic, an attorney licensed to practice law in the State of Texas, with dark hair, wearing a red top and smiling at the camera.

If a court denies a request for termination the first time, it does not mean that that the decision is final and that you cannot try again in the future because circumstances change, people change, and the needs of the child change. The court may terminate a parent-child relationship if the petition is filed after the date the order denying termination has been rendered, the circumstances of the child, parent, sole managing conservator, possessory conservator or other party affected by order have materially and substantially changed since the date the order was rendered, the parent committed an act under Section 161.001 of the Family Law Code before the date the order was rendered, and the termination is in the best interest of the child. It is important to contact a family law attorney to help guide you through this difficult and emotional process. Ilarraza Law, P.C. has a team of attorneys who focus exclusively on family law and who are happy to assist you with your case. Call us today at (214) 646-3253 for as consultation to discuss your case.

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