Termination in the Best Interest

July 23, 2013 § Leave a comment

The COA case of In Re: Adoption of H.H.O.W., decided March 12, 2013, illustrates the important principle at work in termination-of-parental-rights cases that it is the best interest of the child, and not mechanical application of the termination statutes, that will dictate the result.

In this case, the unmarried parents, Gavin and Brigit, had left their nine-month-old son, Henry, in the care of the father’s sister and her husband for more than three years, during which they had limited contact with the infant. When the caretakers filed to terminate parental rights of the parents and for adoption, a contest ensued and the chancellor ultimately found that the failure of the parents to visit the child had caused a “substantial erosion” of the parent-child relationship. The COA affirmed:

¶9. Relevant to the case at hand, section 93-15-103(3) provides:

Grounds for termination of parental rights shall be based on one or more of the following factors:

….

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

. . . .

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .

The chancellor’s decision was grounded in subsection (3)(f), a finding of “substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s prolonged and unreasonable absence [and] unreasonable failure to visit.” This was supported by the uncontested fact that Brigit and Gavin failed to visit Henry for approximately three years, beginning when the child was only nine months of age. In response, Gavin and Brigit point to evidence of communication – they called approximately every two or three weeks – but there was also significant evidence showing that these attempts had been ineffective in preserving the parent/child relationship. We note that the statute provides that the erosion may be a result of either “prolonged and unreasonable absence” or “unreasonable failure to visit”; the law recognizes that communication in and of itself is not necessarily sufficient to preserve the parent/child relationship. Moreover, Gavin admitted in his testimony that, until Henry learned to talk, they did not speak directly with him on the phone, but instead Gavin spoke with Alexis about Henry …

The chancellor found it more credible that the caretakers had not withheld or alienated the child, and that the natural parents had been derelict in maintaining the relationship. This segment of the chancellor’s bench opinion was telling:

[Gavin and Brigit] wanted me to watch . . . [a video recording of some of their visits with Henry] . . . . [W]hat I see is a little boy playing with a man. What I see is a little boy . . . playing with another little girl. I don’t see a father and son relationship. It just could not possibly exist. That bond could not have been formed . . . [even if, i]ntellectually, [Henry] may understand that [Gavin] is his father . . . .

It’s easy to fall into the belief that one must simply prove one or more of the statutory grounds, such as failure to support for the prescribed period, or failure to maintain contact for the presecribed period, or any of the other elements, before the court may grant a termination of parental rights. This case points out an important point beyond mere mechanical application of the statute: that it is the impact of the parental conduct that matters more than simply ticking off the requirements of the statute. Where the parental behavior has caused the destruction of the relationship, the requirement of the statute has been satisfied.

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