Father is in Prison, can I terminate his parental rights?

[ceara19]

YOU can not petition to terminate his rights. Indiana is very circumspect in the list of person that have to ability to do so. A parent is NOT one of them.

http://www.ssw.umich.edu/icwtp/legalIssues/d-grounds.pdf

That refers to the law that prohibits a parent from initiating action to terminate their OWN parental rights. There's nothing to prohibit one parent from initiating an action to terminate the OTHER parents rights under the circumstances listed.

 

[ceara19]

Well, the story goes as so.... He didn't actually beat the child to death, so he says. He was very distraught when the child passed. Very emotional, but no one was there but him and the child. The girlfriend was on her way to meet me to drop the kids off. He said he sat the baby on the counter and went to run a bath for him. The child fell off the counter. But the reports say "Blunt force trauma to the head". I'm not a doctor, but I did speak with the welfare department and they told me what the hospital said. He had a hemorrhage in his eye, and no brain function when he arrived at the hospital along with a lot of other things I won't go into detail about. To disturbing. Here's the kicker. My ex WAS an EMT. I don't know. You think you know a person. We were together for almost 9 yrs.

I spoke with an attorney that informed me i should wait till the appeal process is over before I pursue termination, but he thought that I would not have any problem with the termination as long as my husband wanted to adopt.

That would still be negligence, which is one of the valid reasons for pursuing termination of his parental rights. It doesn't take much sense to know that you don't put a baby on a COUNTER and walk away. As a parent and an EMT he has no excuse for his action (IF his "story" is even true).

 

[krischris]

That would still be negligence, which is one of the valid reasons for pursuing termination of his parental rights. It doesn't take much sense to know that you don't put a baby on a COUNTER and walk away. As a parent and an EMT he has no excuse for his action (IF his "story" is even true).

I understand that. He actually recanted. That was not his original story. That was the
2nd story he gave. It all just seemed odd to me. I have read up on termination and adoption by step-parent. I'm not going into this with no understanding of the law. The thing is, is that I'm not an attorney and this is one thing that I can't do on my own. Unlike the modification papers, I can't do these by myself.

 

[krischris]

It's not just about the termination. I'll tell you how greedy these people (him and his mother) are. When I filed for the modification the judge asked me at the hearing if I wanted the tax exemption for 2006. I told him that in our original divorce decree, I agreed for him to be able to claim the children so long as I didn't have to pay support. That was the arrangement. I provided all of the transportation, 50+ miles one way, all of the time, and I bought most of the school supplies and clothing. Anyways, he hasn't worked at all in 2006, they yanked his license, and I told the judge that because I had the girls for 4 months straight and my overnights the rest of the year, and he didn't provide any of the transportation, that I wanted to exemption. The judge said OK, you can have it. It adds up to me having the girls for over 6 mths of the year. He won't be filing a tax return, and even if he did the state would take it. So what does he do, his mother files a reconsideration, using the same attorney he had for the trial (who by the way was my attorney for a separate custody issue when we were married) and the judge denies her request. Then he files the same papers, he just signs his name instead, and the judge sets it for hearing and blocks me from filing my taxes until the hearing is over. I called the attorney's office and told them I was going to be sure and bring it up that he represented me while we were married and I think there is a conflict of interest and he should remove himself from the custody case. He can represent him on the appeal process, I don't care, he didn't do him any good the first go around, I don't think this time will be any better.

There may be no clear conflict of interest, but on a moral issue, he shouldn't have represented him in the custody issue. That's just bad practice on his part.

 

[ceara19]

There may be no clear conflict of interest, but on a moral issue, he shouldn't have represented him in the custody issue. That's just bad practice on his part.

It's a pretty clear conflict from my point of view as a neutral 3rd party. Are his parents still married?

 

[krischris]

Yes, his parents are still married. I don't know why, they haven't slept in the same room for over 30 yrs.

 

[fairisfair]

That refers to the law that prohibits a parent from initiating action to terminate their OWN parental rights. There's nothing to prohibit one parent from initiating an action to terminate the OTHER parents rights under the circumstances listed.

Ind. Code Ann. § 31-35-3-4 (Michie 1997)

If an individual is convicted of murder, causing suicide, voluntary manslaughter, involuntary manslaughter, rape, criminal deviate conduct, child molesting, child exploitation, sexual misconduct with a minor, or incest; and the victim of the offense was less than 16 years of age at the time of the offense, is the individual's biological or adoptive child, or the child of a spouse of the individual who has committed the offense; then the prosecuting attorney, the attorney for the county office of family and children, the child's guardian ad litem, or the court appointed special advocate may file a petition with the juvenile or probate court to terminate the parent-child relationship of the individual who has committed the offense with the victim of the offense, the victim's siblings, or any biological or adoptive child of that individual.

 

[LdiJ]

Ind. Code Ann. § 31-35-3-4 (Michie 1997)

If an individual is convicted of murder, causing suicide, voluntary manslaughter, involuntary manslaughter, rape, criminal deviate conduct, child molesting, child exploitation, sexual misconduct with a minor, or incest; and the victim of the offense was less than 16 years of age at the time of the offense, is the individual's biological or adoptive child, or the child of a spouse of the individual who has committed the offense; then the prosecuting attorney, the attorney for the county office of family and children, the child's guardian ad litem, or the court appointed special advocate may file a petition with the juvenile or probate court to terminate the parent-child relationship of the individual who has committed the offense with the victim of the offense, the victim's siblings, or any biological or adoptive child of that individual.

That doesn't mean that the other parent may not also petition for the same. That simply lists the third parties that may do so.

 

[fairisfair]

That doesn't mean that the other parent may not also petition for the same. That simply lists the third parties that may do so.

I have not been able to find anywhere in Indiana Law that gives that right to a parent. If you can provide the link, please do. I more than agree that this lady should be able to terminate his parental rights. that is NOT my point.

 

[krischris]

This is from a website for an attorney here in Indiana:

Consent of the Non-Custodial Parent
In most cases, the divorced parent must obtain the consent of the biological father or mother before a stepparent can adopt a child. However, this is not always necessary. Indiana adoption law has provisions by which a stepparent can adopt a child without the consent of the non-custodial, biological parent. Steve and Joel Kirsh can provide guidance on how to best accomplish a stepparent adoption.

No consent is necessary in a stepparent adoption if any one of the following four circumstances apply:

The non-custodial parent has abandoned the child for more than six months.
The non-custodial parent has failed to support the child for more than one year or failed to make court-ordered, child support payments.
The non-custodial parent has failed to significantly communicate with the child for more than one year.
The non-custodial parent is unfit to parent the child, issues such as drug abuse, mental illness, or imprisonment may indicate unfitness.

http://www.kirsh.com/PracticeAreas/Stepparent-Adoptions.asp

But it doesn't say anything about the termination. I guess maybe they go hand in hand. I know that both proceedings can be done at the same time. Termination and adoption that is.

 

[LdiJ]

I have not been able to find anywhere in Indiana Law that gives that right to a parent. If you can provide the link, please do. I more than agree that this lady should be able to terminate his parental rights. that is NOT my point.

There are not laws that outline every single right that a parent has. You are assuming that if you can't find a law that says that a parent can do something, that they automatically cannot. In all reality its the opposite. Unless there is a law that says a parent CANNOT do something, then they can.

I am telling you that I have been directly involved with people and cases where a parent petitioned to have the other parent's parental rights involuntarily terminated, specifically in cases where the other parent was in prision, and were able to do so. I also know of MANY involuntary terminations connected to stepparent adoptions....in Indiana.

 

[fairisfair]

There are not laws that outline every single right that a parent has. You are assuming that if you can't find a law that says that a parent can do something, that they automatically cannot. In all reality its the opposite. Unless there is a law that says a parent CANNOT do something, then they can.

I am telling you that I have been directly involved with people and cases where a parent petitioned to have the other parent's parental rights involuntarily terminated, specifically in cases where the other parent was in prision, and were able to do so. I also know of MANY involuntary terminations connected to stepparent adoptions....in Indiana.

No actually, I am assuming that if I find a law that says they cannot, that they cannot, until I find a law that says that they can.

I am telling you that I am a fairy princess . I have no doubt that people's parental rights are being terminated in Indiana, my question is with regard to the process.

 

[LdiJ]

No actually, I am assuming that if I find a law that says they cannot, that they cannot, until I find a law that says that they can.

I am telling you that I am a fairy princess . I have no doubt that people's parental rights are being terminated in Indiana, my question is with regard to the process.

What law have you found that says they cannot? Because nothing you have posted here says that a parent cannot petition to have the other parent's rights terminated involuntarily.

You have found laws that are silent on the subject of parents doing so, but nothing that says they cannot.

 

[ceara19]

No actually, I am assuming that if I find a law that says they cannot, that they cannot, until I find a law that says that they can.

I am telling you that I am a fairy princess . I have no doubt that people's parental rights are being terminated in Indiana, my question is with regard to the process.

There is an absence of law on this matter. The law states that a parent cannot initiate actions to terminate THEIR OWN rights. There is NOTHING concerning one parent taking action to terminate the rights of the OTHER parent.

 

[ceara19]

Yes, his parents are still married. I don't know why, they haven't slept in the same room for over 30 yrs.

Then you may want to proceed with caution as far as the relationship between the child and the grandfather is concerned. Because grandma lives in the same home, allowing regular visitation with grandpa at his home may open the door for GRANDMA to petition for visitation rights after grandpa passes away and you stop the visits. You are creating a regular, ongoing relationship between the child and the grandparents.