In Arizona, a proceeding to permanently terminate parental rights is called a severance. Permanent termination means just that. A parent will no longer have any rights to raise the child⁽¹⁾Once a severance is complete, the child is free to be adopted.

Because so much is a stake, a parent is entitled to a number of special due process protections.⁽²⁾ The petitioner must prove grounds for severance by clear and convincing evidence rather than by a preponderance of the evidence⁽³⁾. A petitioner must also prove that severance is in the child's best interests. For an Indian child, the standard is even higher -- that is, proof beyond a reasonable doubt.⁽⁴⁾

Who may bring a severance?
In most cases a severance is brought by CPS. However, a severance can be brought privately. There need not be a dependency. But, if there is, the initial procedures may be different from a severance where there is no dependency.

What are the grounds for severance?
There are ten grounds for severance⁽⁵⁾ --several of which are a bit esoteric. The most common grounds encountered by the clinic in a CPS initiated severance are the following:

Subdivision 6 - relinquishment
Subdivision 7 -- what is called "time in care"
Subdivision 3 - mental illness and/or substance abuse
Subdivision 4 - lengthy imprisonment

Subdivision 1 - abandonment and
Subdivision 4 - lengthy imprisonment; and
Subdivision 6 - relinquishment where the adoption by a specific family is pre-arranged.

Relinquishment:
A relinquishment is a voluntary decision by the parent to give up all rights to a child. Parents relinquish under a variety of circumstances - e.g. a very young unwed mother and father who believe it is best to give up their child for adoption; a parent about to go to prison for a very long time; a parent who has problems and is willing to give the child to a relative.

One situation that the Clinic sees fairly frequently is a parent who decides not to contest a severance but wants to "save face" concerning the grounds. In the latter situation, the relinquishment may be voluntary in the same way that a guilty plea is voluntary. There is a certain amount of situational coercion that is accepted by the Court if relinquishment is in the child's best interests.

There are two kinds of relinquishments: General and specific. A general relinquishment is a surrender of all parental rights to the State with no promises about what will happen to the child. The child could be adopted by anybody.

A specific relinquishment is conditioned on the child being placed for adoption with a specific family. The birth parent gets to have some say in where the child ends up. There is a certain amount of comfort to the birth parents in knowing that the child will be taken care of. Often that comfort zone is the catalyst for agreeing to relinquish.

CPS is very reluctant to agree to a specific relinquishment. The Agency does not want to be in a situation where parental rights might have to be restored if the adoption is not completed as planned. They will usually only agree to a specific relinquishment if the child has been placed with the proposed adoptive family for a long time and it is a near certainty that the family will adopt.

One of the advantages to the parent in a specific relinquishment is the possibility of a post adoption visitation agreement - i.e. an agreement that is enforceable in court for the birth parent to visit the child after an adoption.⁽⁶⁾ In practical terms, a post adoption agreement is only possible when the adopting parents are known to the birth parents -- which they would be in a specific relinquishment. A post adoption agreement must be voluntary on the part of the adopting parents; it must be fair; and it must be approved by the Court.

Time in Care:
Subdivision 7 sets out dual grounds referred to as "time in care.⁽⁷⁾" The central theme of subdivision 7 is that it has taken too long for the parents to remedy the problem that caused their child to be removed from the home. The child has been in foster care with no end in sight and it is time to move on and give the child a chance at a new, permanent family.  There are four common elements to time in care:

1. The child is in an out of home placement pursuant to court order.
2. The agency has made diligent efforts to reunify the family.
3. The parent has been not remedied the problem that caused the child to be placed in care.
4. Too much time has passed.

The second type is when fifteen months have passed and the parent has been unable for any reason - regardless of parental efforts - to remedy the underlying problem and it does not look like the parent will be able to come up to speed in "the near future"⁽⁹⁾. Essentially this ground says that, even when parents are trying, we are only going to give them fifteen months to become minimally adequate parents.

The latter type may seem unduly harsh - and from the parent's point of view, it is. Clearly in the latter situation the law has made a policy judgment that parents' rights take second place to the child's need for a permanent home.

Proof of time in care is the most complex of all the grounds. It is incumbent upon the Agency to clearly identify why the child was removed in the first place; to chronicle all the efforts made to assist the family in reunification; to demonstrate that those efforts were reasonable and to show that the parent has not resolved the problem. This will usually involve the use of the expert testimony of psychologists and social workers.

Time in care cases often come down to a trial of reasonableness of the Agency's action. Like the situation in a guardianship, the Agency may be put on trial.

Mental Ilness and Substance Abuse:
Subdivision 3 dealing with mental illness, mental deficiency and substance abuse is related to time in care but slightly different in two key respects. First, the state must prove the condition of mental illness, mental deficiency or substance abuse. But rather than dealing with specific time periods, the state need only prove that "reasonable grounds to believe that the condition will continue for a prolonged indeterminate period."⁽¹⁰⁾

Second, the state need not prove diligent efforts at reunification in order to establish the grounds. Typically, however, the state will try to show the efforts it has made to help the parent deal with the mental health or substance problem because the availability or lack of availability of treatment is a fair consideration in evaluating whether the condition will continue for a prolonged indeterminate period.

Imprisonment:
Lengthy imprisonment is an interesting grounds in that it is largely undefined by the statute. The statute merely states that the grounds exist if the prison "sentence of such parent is of such length that the child will be deprived of a normal home for a period of years." How long is that? Well the Courts have never given us a clear answer.

In a recent Supreme Court decision, Matter of Michael J.⁽¹¹⁾, the Court set out guidelines for determining whether or not the parent's sentence is sufficiently lengthy. The Court stated that the trial court should, at a minimum, look at the following six factors:

"(1) the length and strength of any parent-child relationship existing when incarceration begins, (2) the degree to which the parent-child relationship can be continued and nurtured during the incarceration, (3) the age of the child and the relationship between the child's age and the likelihood that incarceration will deprive the child of a normal home, (4) the length of the sentence, (5) the availability of another parent to provide a normal home life, and (6) the effect of the deprivation of a parental presence on the child at issue."

Abandonment:
Abandonment  means the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment.⁽¹²⁾ Essentially if there is a six month period where the parent has not tried to really be a parent, the grounds for severance grounds will be met.

What are the Child's Best Interests?
Regardless of the grounds established, the petitioner must also prove that severance is in the child's best interests.⁽¹³⁾ The precise meaning of "best interests" is always a case by case determination. Nevertheless, the Courts have given some guidance. In determining best interests in a severance, the Court

"must consider the benefit of severance to the child as against the detriment should severance be denied. The immediate availability of an adoptive placement obviously weighs in favor of severance, while the improbability of adoption, absent other factors, weighs against it. But the availability of adoption is not the sole criterion. As this case clearly shows, continuation of the parent-child relationship may have such negative consequences for the child that severance is warranted even though an adoptive placement is unavailable"⁽¹⁴⁾.

What are the Procedures for a Severance?

Notice and Defaults
If the severance is an outgrowth of a dependency, then the severance is initiated by a simple motion as a continuation of the dependency⁽¹⁵⁾. If there is no dependency, a severance is considered a new proceeding and must be initiated by the filing of a petition.⁽¹⁶⁾

There are three major differences between the two procedures. The first is service of process. If a new petition must be filed, then service of process must be made personally on the responding parent. Service must be made just as if this were the initiation of any other civil case. ⁽¹⁷⁾ In addition to regular service of process, the Clerk of the Court has to send a special notice by registered mail which includes the warning:

"You have a right to appear as a party in this proceeding. The failure of a parent to appear at the initial hearing, the pretrial conference, the status conference or the termination adjudication hearing may result in an adjudication terminating the parent-child relationship of that parent."⁽¹⁸⁾

This downgrading of the notice requirement is especially troublesome if, for some reason, the attorney has lost contact with the parent - a not infrequent occurrence at this stage of the process. The parent is then exposed to a default judgment without ever having received actual notice.

As with a dependency, in a default situation, the Court can rule that the parent has waived his or her rights to a hearing and is deemed to have admitted the allegations in the petition.⁽²⁰⁾ The court can then order the termination of parental rights after assuring itself that the facts support a termination and that it is in the child's best interests.

Request to Change Judge
The second difference between proceeding by motion or initiating a new proceeding is that under a new proceeding a parent would be entitled to a new judge. At the very least, the parent could "affidavit" the judge pursuant to Rule 20.1.⁽²¹⁾ If the severance is deemed a continuation of the dependency, then the parent is not entitled to such a request as a matter of right. From the parent's point of view, it is pretty easy to see why the parent would want a change of judge from the Judge who already found that termination is the appropriate plan.

Informality of the Trial
The adjudication trial will be similar but perhaps more formal than other civil Juvenile Court trials. Obviously the stakes are higher - although from a practical point of view, the permanency planning process may be more significant.

Formerly, Rule 16.1 requiring "informal" hearings for dependencies did not apply to severances. However, under the newer motion practice - where the severance is an continuation of the dependency - that may no longer be true.

Social Study
In all other respects but one, the procedures are the same for a severance adjudication as for a dependency adjudication. That one difference is that the Court must order a report called the social study.⁽²²⁾ The social study is a factual report commissioned by the Court showing the "circumstances of the petition, the social history, the present condition of the child and parent, proposed plans for the child, and such other facts as may be pertinent to the parent-child relationship."⁽²³⁾ The social study must include a recommendation about whether or not the parent-child relationship should be terminated.

The social study is usually prepared at the petitioner's expense. More often than not, therefore, the petitioner will submit a name for the court for its approval. There is certainly the perception of some bias in the fact that one party picks the person or agency making the social study - although there have been social studies which have recommended against severance.

The social study, as a required report, is admissible without objection.⁽²⁴⁾ However, the practice in Pima County is that, prior to the trial, the parties will have the opportunity to object to portions of the social study. The Court will usually sustain objections to unattributed hearsay and to hearsay from persons who will not be present to testify at trial. But for the most part, the study is admissible and greatly influential in the trial process.

What Should I be Considering as the Child's Attorney?
Your role in a severance is the same as that in the dependency. Help your client make informed decisions and then advocate that position. The big difference is that, in a severance decision, the position may be a forever decision. That places a heavy burden on you as attorney and an even heavier burden on the child.

Adding to the mix is the different view of "best interests" for an older child in a severance. It is one thing for a Judge to place a smaller value on the child's position in a temporary protective situation like a dependency. It is quite another when the decision may permanently change the life of the child.

Thus, it is imperative that you spend extra time and make an extra effort to make sure that your client understands all of the ramifications of severance and that you understand your client's stated and unstated wants and needs. It can be a daunting task. You may need some assistance from the professionals involved in the child's life consistent with keeping the child's secrets. You will certainly need to consult with the other members of the Clinic to help your client make good choices.

A sample severance petition and final orders are included in the Appendix.

1. 8-539. "An order terminating the parent-child relationship shall divest the parent and the child of all legal rights, privileges, duties and obligations with respect to each other except the right of the child to inherit and support from the parent. This right of inheritance and support shall only be terminated by a final order of adoption."

2. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982)

3. §8-537(B)

4. See section on the Indian Child Welfare Act

5. ARS §8-533:

"1. That the parent has abandoned the child.
2. That the parent has neglected or wilfully abused a child. This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child.
3. That the parent is unable to discharge the parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period.
4. That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which such parent was convicted is of such nature as to prove the unfitness of such parent to have future custody and control of the child, including murder of another child of the parent, manslaughter of another child of the parent or aiding or abetting or attempting, conspiring or soliciting to commit murder or manslaughter of another child of the parent, or if the sentence of such parent is of such length that the child will be deprived of a normal home for a period of years.
5. That the potential father failed to file a paternity action within thirty days of completion of service of notice prescribed in section 8-106, subsection G.
6. That the parents have relinquished their rights to a child to an agency or have consented to the adoption.
7. That the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services and that either of the following circumstances exists:

(a) The child has been in an out-of-home placement for a cumulative total period of nine months or longer pursuant to court order and the parent has substantially neglected or wilfully refused to remedy the circumstances which cause the child to be in an out-of- home placement.
(b) The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order, the parent has been unable to remedy the circumstances which cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.

8. That the identity of the parent is unknown and continues to be unknown following three months of diligent efforts to identify and locate the parent.
9. That the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause.
10. That all of the following are true:

(a) The child was cared for in an out-of-home placement pursuant to court order.
(b) The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services.
(c) The child, pursuant to court order, was returned to the legal custody of the parent from whom the child had been removed.
(d) Within eighteen months after the child was returned, pursuant to court order, the child was removed from that parent's legal custody, is being cared for in an out-of- home placement under the supervision of the juvenile court, the division or a licensed child welfare agency and the parent is currently unable to discharge parental responsibilities.

6. ARS 8-116.01

7. ARS 8-533(7)

8. ARS 8-533(7)(a)

9. ARS 8-533(7)(b)

10. 8-533(3)

11. 196 Ariz. 246, 319 Ariz. Adv. Rep. 8 (2000)

12. ARS § 8-531.1. see also Matter of Michael J., supra at 995 P.2d 685

13. ARS 8-533(B)

14. Matter of Appeal in Maricopa County Juvenile Action No. JS-500274 167 Ariz. 1, 804 P.2d 730 (1990).

15. §8-533

16. §8-533

17. §8-535(A)

18. Id.

19. §8-862

20. §8-537

21. See procedure to change Judge in Clinical Procedures section

22. §8-536

23. Id.

24. §8-537