Grounds for Involuntary Termination of Parental Rights - Eastern Band of Cherokee Indians

Grounds for Termination of Parental Rights
Citation: Tribal Code § 7B-1111

The court may terminate the parental rights, as a last resort, upon a finding by clear and convincing evidence that one or more of the following exists:

• The parent has maltreated the child.
• The parent has willfully left the child in foster care or placement outside the home for more than 12 months without making reasonable, consistent, or measurable progress in correcting those conditions that led to the removal of the child.
• The child has been placed in the custody of the Department of Human Services or a foster home, and the parent, for a continuous period of 6 months prior to the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the child, although physically and financially able to do so.
• The noncustodial parent whose parental rights are sought to be terminated has, for a period of 1 year or more, willfully failed without justification to pay for the care, support, and education of the child, as required by a custody agreement, although physically and financially able to do so.
• The father of a child born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights, done any of the following:
  • Filed an affidavit of paternity in a central registry or with the Tribal Child Support Services agency
  • Acknowledged or legitimized the child or filed a petition for this specific purpose
  • Legitimized the child by marriage to the mother of the child
  • Provided substantial or meaningful financial support or consistent care with respect to the child and mother
  • Established paternity through a judicial proceeding
• The parent is incapable of providing for the proper care and supervision of the child, such that the child is a dependent child, and there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, intellectual disability, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable, unavailable, or otherwise incapable of parenting the child, and the parent lacks an appropriate alternative child care arrangement, after reasonable, consistent, and measurable efforts were attempted by the parent or Tribe.
• The parent has willfully abandoned the child for at least 6 consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant for at least 60 consecutive days immediately preceding the filing of the petition or motion.
• The parent has committed any of the following:
  • Murder, voluntary manslaughter, or sexual offense of the child or another child of the parent or other child residing in the home
  • Aided, abetted, attempted, conspired, or solicited to commit murder, voluntary manslaughter, or sexual offense of the child, another child of the parent, or other child residing in the home
  • A felony assault that results in serious bodily injury, substantial emotional harm, or developmental delay to the child, another child of the parent, or other child residing in the home
  • Rape, sexual battery, or other sexual offense, and the victim is the child or another child in the parent's household
  • Rape, sexual battery, or other sexual offense that resulted in the conception of the child
  • A felony of such nature and length that the child will be deprived of the parent and displaced from the home for a period of years
  • Murder or voluntary manslaughter of the other parent of the child
• The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction, and the parent lacks the ability or willingness to establish a safe home.

If the parent has committed the murder or voluntary manslaughter of the other parent of the child, the court shall consider whether the murder or voluntary manslaughter was committed in self-defense or in the defense of others, or whether there was substantial evidence of other justification.

No parental rights shall be terminated for the sole reason that the parents are unable to care for the child on account of their poverty.

Timeframes for Termination Proceedings
Citation: Tribal Code § 7B-1100

The Tribe shall pursue the termination of parental rights only as a last resort and only when it is clear that guardianship or customary adoption with parental visitation is insufficient to meet the needs of the child, and a statutory adoption is feasible and in the best interests of the child.

Exceptions
Citation: Tribal Code § 7B-1110

After an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the child's best interests. In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:

• The age of the child
• The likelihood of adoption of the child
• Whether the termination of parental rights will aid in accomplishing the permanent plan for the child
• The bond between the child and the parent
• The quality of the relationship between the child and the proposed adoptive parent, guardian, custodian, or other permanent placement
• Any other relevant consideration

Irrespective of the existence of one or more circumstances authorizing termination of parental rights, the court may dismiss the petition or deny the motion and shall set forth the facts and conclusions upon which the dismissal or denial is based, including, but not limited to, the following:

• The child is being cared for by a relative.
• The department has documented in the case plan, other report, or assessment, a compelling reason why filing such a petition is not in the best interests of the child.
• A determination that the department has not provided to the family of the child the services needed for the safe return of the child to the child's home.
• Termination of parental rights is not in the best interests of the child.

Should the court determine that circumstances authorizing termination of parental rights do not exist, the court shall dismiss the petition or deny the motion, making appropriate findings of fact and conclusions.

When Parental Rights May Be Reinstated
Citation: Tribal Code § 7B-1200

A child whose parent's rights have been suspended or terminated, the guardian ad litem or attorney advocate, or the department with custody of the child may file a motion to reinstate the parent's rights if all the following conditions are satisfied:

• The child is at least aged 11 or, if the child is younger than 11, the motion alleges extraordinary circumstances requiring consideration of the motion.
• The child does not have a legal parent, is not in an adoptive placement, and is not likely to be adopted within a reasonable period of time.
• The order suspending or terminating parental rights was entered at least 3 years before the filing of the motion unless the court has found or the child's attorney advocate and the department with custody of the child stipulate that the child's permanent plan is no longer adoption.

After a motion has been filed, a preliminary hearing shall be held within 60 days. At least 7 days before the preliminary hearing, the department and the child's guardian ad litem attorney advocate shall provide to the court, the other parties, and the former parent reports that address the factors that will be considered at the hearing, including a home study assessment and comprehensive clinical assessment if the parent's rights were suspended or terminated due to a finding of child maltreatment and a failure to remedy the conditions that led to the suspension or termination of parental rights.

At the preliminary hearing and any subsequent hearing on the motion, the court shall consider information from the department with custody of the child, the child, the child's guardian ad litem attorney advocate, the child's former parent whose parental rights are the subject of the motion, the child's placement provider, and any other person or agency that may aid the court in its review. The court may consider any evidence, including hearsay evidence that the court finds to be relevant, reliable, and necessary to determine the needs of the child and whether reinstatement is in the child's best interests. The court shall consider the following criteria and make written findings regarding the following that are relevant:

• What efforts were made to achieve adoption or another permanent placement
• Whether the parent whose rights the motion seeks to have reinstated has remedied the conditions that led to the child's removal and suspension or termination of the parent's rights
• Whether the child would receive proper love, care, guidance, and supervision in a safe home if placed with the parent
• The age and maturity of the child, and the ability of the child to express the child's preference
• The parent's willingness to resume contact with the child and to have parental rights reinstated
• The child's willingness to resume contact with the parent and to have parental rights reinstated
• Services that would be needed by the child and the family unit if the parent's rights were reinstated
• Any other criteria the court deems necessary

At the conclusion of the preliminary hearing, the court shall either dismiss the motion or order that the child's permanent plan become a reinstatement of parental rights. If the court does not dismiss the motion, the court shall conduct interim hearings at least every 3 months until the motion is granted or dismissed. Interim hearings may be combined with posttermination of parental rights review hearings required by § 7B-907. At each interim hearing, the court shall assess whether the plan of reinstatement of parental rights continues to be in the child's best interests and whether the department has made reasonable, consistent, and measurable efforts to achieve the permanent plan.

At any hearing under this section, after making proper findings of fact and conclusions of law, the court may do one of the following:

• Enter an order for visitation in accordance with § 7B-905
• Order that the child be placed in the former parent's home and supervised by the department, subject to conditions applicable to the former parent as the court may specify based on assessments, reports, case plans, and service contracts developed with the family 

The court shall either dismiss or grant a motion for reinstatement of parental rights within 12 months from the date the motion was filed, unless the court makes written findings why a final determination cannot be made within that time. If the court makes such findings, the court shall specify the time frame in which a final order shall be entered.

An order reinstating parental rights restores all rights, powers, privileges, immunities, duties, and obligations of the parent as to the child, including those relating to custody, control, and support of the child. If a parent's rights are reinstated, the court shall be relieved of the duty to conduct periodic reviews.

A parent whose rights are reinstated pursuant to this section is not liable for child support or the costs of any services provided to the child for the period from the date of the order terminating the parent's rights to the date of the order reinstating the parent's rights.