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Termination of Parental Rights & Guardianship: How & Why

I had opportunity to volunteer last night at a free legal clinic.  The beauty of volunteering is that not only do I get to help people, but I also find out where my knowledge of my claimed “specialty” in the law is limited, and then I have something to research to bolster that knowledge.  It’s a win-win.

Last night I consulted with a woman on guardianship of a child.  Her circumstances are such that she’s in a temporary guardianship situation, but because the child’s mother is not making any efforts to become a fit parent, and there is a constant underlying threat that mom is just going to swoop in and try and take the child home with her to “be the mom”, the woman expressed an interest in a more permanent arrangement.  We discussed a few different options, including filing a petition to terminate mom’s rights and then filing for adoption of the child, and a permanent guardianship.

bad parenting

Hopefully this is NOT this kid’s parent…

I am familiar with the statute regarding termination of parental rights, and I’ve read a good chunk of caselaw recently about termination of parental rights, but I could not for the life of me find the statute last night when I was talking to this woman (it’s a little tricky to pull/find/read on a 4 inch iPhone screen, btw.)  SO. Today I found it, on a desktop computer.  Statute that governs parental rights termination is located at Utah Code Title 78A Chapter 6 Part 5.  Any interested party, including a foster parent, can file a petition to terminate rights of a parent (UCA 78A-6-504).  Grounds for termination are located at UCA 78A-6-507.  You’ll note that only ONE of those grounds have to be shown/proven to terminate rights, which include abandonment of the child.  A parent can be found to have abandoned their child if they’ve only had “token” contact or communication with a child.  So if mom hasn’t seen a kid in 2 years, and then suddenly shows up and takes him to McD’s, or sends a card with $5 in it, that doesn’t constitute enough contact or support to prevent a court from finding that the parent has abandoned the child.

The statute spells out what needs to be in the petition to terminate, and also states what the process is (serving the parent, timeframes for having a hearing, etc.) at UCA 78A-6-504 and -505.  While I’m not finding any forms for terminating someone else’s parental rights (NOT voluntary relinquishment of rights–those forms and information are here), the statute is specific enough that one should be able to put together their own petition and get service of process done without them (or with some limited consulting with an attorney.)

Like I said, I’ve read a raft of caselaw recently regarding the process of terminating someone’s parental rights (here are just a few examples:  In re K.W., In re A.J., and In re B.A.).  A parent is entitled to a court appointed/state paid for attorney in termination proceedings if they can’t afford to hire a lawyer, but the parent is not required to have a lawyer–meaning, if the parent is offered but refuses counsel, they can’t come back later and say they were deprived of due process.  And the courts really do only require the showing of ONE of the statute’s grounds for termination.  ONE.  Though quite frankly, all the cases I’ve read where the appellate court affirmed the juvenile court’s decision to terminate rights have had a bucketload of grounds that more than justified termination.  All that said, the court MUST put into findings of fact actual facts that support the court’s decision to terminate rights….and they can’t be terminated just because a parent doesn’t strictly comply with a DCFS family plan.  (For an example/more explanation, see the court case In Re E.A., from May of 2018.)

The whole point behind a parent having rights to their child removed is for the welfare of the child.  This is not something to take lightly, but if you’re looking at a situation where a parent is NOT getting their act together, is consistently behaving in ways that make them an unfit parent (see the statute for what those ways legally are), and this behavior is threatening the ongoing stability of their child, terminating rights may be the best thing to do for the sake of that child.  Terminating parental rights opens up the child for adoption (which you’d file at the same time as the petition to terminate rights, just to cover your bases–but that’s another blog post.)  Adoption generally equals stability, and the chance to grow up better adjusted and more normally.  Best interests of the child are key here.

Family hands

Because family isn’t just about blood…it’s about people who care about each other.

Terminating parental rights is not the only way to get a child in a more secure situation, for the record.  I also discussed with the woman last night the possibility of getting a permanent guardianship in place.  This is more of a middle ground solution–it’s not legally Permanent–it CAN be undone at some point.  When a parent’s rights are terminated, it IS permanent.  Even if they voluntarily relinquish their rights.  There are no “I changed my mind” options.  Guardianship leaves open a way for a parent to get their situation under control, get stable, and eventually, possibly, get their kid back.  The Utah Courts website has a lot of info on getting a guardianship put in place, including forms.  Have a look-see.

To the woman I spoke with last night:  Good on you for caring enough to even look into this.  Legal actions are never convenient, and rarely pleasant, but you CAN do what needs to be done to make sure the child you’re caring for is in a stable place.  I wish you the best.

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Protective Orders: What They’re NOT for

While I’m not in private practice anymore, I do take the occasional one-off type thing: those cases that will have a one time court appearance or are strictly consulting, or are basic estate planning–that sort of thing.  Today I had a hearing defending a client in a motion for a permanent protective order.

I truly believe in protective orders.  When they are needed, one should ABSOLUTELY get one.  That said, I ALSO feel strongly that protective orders should not be abused.  If one is simply trying to control another person, or force a custody order, or simply to “get back” at another person for some perceived slight, getting a protective order is absolutely inappropriate.  Personally, I think people who get ex parte protective orders for the wrong reasons should have to pay the other person’s costs and attorneys fees when the motion and temporary PO are dismissed.  And maybe have some sort of sanction thrown at them by the court, like being ordered to do community service.

My client this morning who I was defending was in a situation where the protective order was being used as a tool to try and control and manipulate him.  The Petitioner in this case, his baby mama, was not in need of protection by the court.  They’re not even Utah residents–they’ve both been living in California up until she took off and came back to Utah, taking their tiny baby daughter with her.  He filed for custody in California a week or so after she left, when it became apparent that she couldn’t be trusted to allow him contact with his child.  And 3 weeks later, after dodging–but finally being served– with the California court papers, Baby Mama filed for a protective order.

Long story short, I won this one.  The protective order motion was denied, and the ex parte/temporary order was dismissed.  The reason I won is because my client was excellent at documenting stuff–he saved all the texts, emails, and Facebook messages the two had exchanged.  And he was totally upfront with his less-than-perfect behaviors.  He had also not been abusive to her–in fact, SHE had assaulted HIM; SHE had been the one threatening HIM. And in the end, we were able to prove that Baby Mama did not meet the requirements to get a protective order against my client.

Gifts from Client 4-19-18

Gifts from my client :).  He was very grateful, and very nice. The best kind of client to have.

I like to win.  A lot.  And when that win can knock down what I see as abuse of  protective orders, and protect a person from losing constitutional rights in a quasi-criminal action, all the better.  I hate people who cry wolf.  They truly degrade the value of the protective order, which hurts everyone out there who honest to God needs one.

From the Archives: February 29, 2012

**I wrote the bit below in 2012, just 2 years after I graduated from law school, a mere 7 years after my divorce was final.  It took a lot of years to get to the point where I wasn’t just continually emotionally ambushed by the most innocuous things.  To all of you who are in that place still, know that there will be an Other Side.  The pain subsides; you will be able to draw breath again without agony.

March

It’s late on Wednesday, and I was just thinking I’d do myself a favor and go to bed early, and passed the calendar in the kitchen and thought, “Well, I’ll just be an over-achiever and change it over to March before it’s like the 5th of March” and I did, and there, on the 16th, written in black sharpie marker in 8-year old handwriting is “Jackson’s B-day.”  And I burst into tears.  Jackson is my baby.  He is 9 on the 16th, and he clearly wanted to make sure I remember :).  I will NEVER forget.

 

Jacks was 2 years old and 1 day when my ex and I signed our stipulated agreement for divorce.  I signed, even though I was signing away my life, even though it was NOT fair at all,  because I needed out before I had to kill myself.  I couldn’t be married to him for one more second.  And he punished me for it to the enth degree.

 

The ex took everything–EVERYTHING.  Including my babies; including my Jacks.  March is a killer month for me.  There is not enough Vitamin D, Omega-3 fatty acids, not enough melatonin or xanax to ease the pain of March.

 

“Beware the Ides of March.”  That’s what my grandma told me when I was pregnant with Jackson–he was due the 15th, the Ides.  Had I known what was in store for me over the course of the years, I would have saved us all some time listening to me bitching and moaning, and all the tears and misery, and swallowed all those sleeping pills like I REALLY wanted to back then.  I didn’t.  Now I can’t.  Just gotta suck it up for one more March….

 

P.S.  I love my baby!  He’s WONDERFUL!  Might be the smartest almost-9 year old on the planet :).

How to NOT Get Divorced: A Love Story

My parents celebrated their 47th wedding anniversary in January of this year.  47 YEARS together.  They have 6 kids.  They have gone through job loss, major moves, a kid with legal problems, kids with personal life issues, and are now raising my 2 young nieces.  Needless to say, their married life has not been all unicorns and butterflies.  And still, they are married.  And by all accounts, they are HAPPY in their marriage.  And how do we know…?

This morning my mom texted to our little family group message these pictures, with the message “Your dad is still a romantic!! we love him!!”

What you’re looking at is Valentines Day at their house, by 6:30 this morning.  My dad goes big on V Day.  That picture on the left is ALL the stuff he got for my mom and nieces; then you see my nieces with their individual gifts.  (M, child in the middle pic there, saw all this in the kitchen when they walked in this morning and said, “Where does he GO at night?!?!” 😉 ).  My dad does this every year.  He has gone big on Valentines Day for my mom for years; he’s added the Littles since they’ve been living with my parents (most of their young lives).  He’s retired now, but he did it when he was still working full time for the post office, and had to leave for work by 6:30 a.m.  He made sure he decorated my mom’s classroom at the school where she taught 5th grade until she retired last year, stealing her keys and getting in there BEFORE he had to leave for work, just so she and all  her students would walk in and see this huge deal being made of my mother by my dad.  He does this, and has done this even when it wasn’t easy or convenient.

Why???

Because My Dad Loves My Mom.  And this is one of the ways he shows her.  No, they don’t always get along.  They irritate each other sometimes, and they argue sometimes.  My dad is a night person; my mom is absolutely a morning person.  And now in their retirement, they have become parents of young children again, which is not how they thought their lives would go.  But they still LIKE each other.  They like spending time together.  They like going on long drives together, just to “see where the road goes.” They are on the same team.  They just like to Be together.

My dad gets Valentines and makes a big deal for my nieces because he wants them to see what it looks like to be treated well by a man.  My dad models being a good husband and father, and what a good relationship looks like to all of us kids.  Which is honestly one of the reasons I knew my first marriage was not okay.  I knew what it was supposed to look like and, more importantly, FEEL like, and mine did not.

Now, does this mean that unless you super go all out for V Day that you’re not a good partner?  Absolutely not.  But this is how MY dad does it.  And he isn’t just a good man on Valentines Day, and my parents don’t just work on being nice to each other on major holidays.  It’s Every. Damn. Day.  Just like anything you want to be good at.  You wanna be a great ball player? You practice.  You wanna be a great spouse?  You practice.

To be clear, doing YOUR best does not mean your marriage will last.  Marriages are made up of two people, and if only one is interested in working every day on it, and making their spouse a priority, that one person can’t carry the whole thing.  Which is really the saddest thing, truly.

But Today, on Valentines Day, here’s an example of how a long marriage can stay happy.  Happy V Day, ya’ll.Keep Trying

An Essay: In honor of my 43rd year of life, a new year, and to try and maintain my sanity insofar as is possible, THESE ARE THE RULES OF OUR HOUSE:

(**A year ago, on my birthday–which happens to be immediately after the New Year–I decided that it was high time that I expressed to my children exactly what was expected of them in our house.  I don’t have a lot of “Rules,” so to speak–Clean up after yourself, help out, be nice, don’t be a jerk…The basics.  By the time I hit my 43rd year, however, I had determined that this lack of actual definition of what the Rules are was being used against me.  And I decided to take action.  The following is a result of that decisionSent via text to those who live and hang out in my house:)Crack that whip

I am not the dishes fairy. If you come into our house and make a snack, get a drink, cook for yourself, etc, you WILL properly take care of the dishes. “Properly take care of dishes” is defined thusly: if you dirty a dish, you wash a dish. You either empty the clean dishes out of the dishwasher and load yours, load yours into an already dirty dishwasher, or RINSE AND NEATLY STACK your dishes ON THE COUNTER. Nasty slimy dishes in the sink is one of my biggest pet peeves, and y’all have lived with me long enough to know this.

You will clean up the counters after you have used the kitchen in any of the aforesaid ways. This means you put away things you got out, properly take care of your dishes (see above for definition), and wipe the counters. You DO NOT leave sticky yack on the counters, or popcorn kernels, popcorn popper, crumbs, any other appliances you may use on the counters.

You WILL properly take care of your dishes that you remove from the kitchen. This means dishes that you may have previously left in other places around the house. (See above for the definition of “properly taking care of your dishes.”)

You WILL clean up your own trash. Wrappers, plastic cups, cup o noodle cups, etc, are to be placed on a proper trash receptacle, NOT left on any surface around the house.

You WILL keep garbage in vehicles cleaned up and in the appropriate garbage sack. When the sack gets full, you WILL take it out of the car, put it into the outside garbage can, and replace the sack. You WILL NOT leave spilled drink yack, dirt, crumbs, etc. in the car after you use it. We are not driving around dumpsters! Every car has wet wipes in it. USE THEM.

Failure to comply with ANY of these rules by ANY person will result in the wifi password being changed, and not given out again until the problem is remediated. So y’all better figure out how to follow the rules PDQ or you’ll spend a lot of time watching basic cable, reading actual books (GASP!), or twiddling your thumbs.

I AM DONE. You WILL act more like responsible adults. I will not let you move off into the world as slobs and assholes who take advantage of those you live with.

Clean house

(The Epilogue:  Things got generally better.  I only changed the wifi password once, however, because as it happens, it’s more of a pain for me than it is for the kids.  Though I did make sure to spread my irritation at the pain to all of them, so they could share in my Joy ;).  And my oldest son moved out and into an apartment with friends last spring.  By December, he was ready to move back in with me…his roommates aren’t the cleanest, and it grosses him out.  Made my mama heart proud :).)

The Advisory Guidelines: Especially at the Holidays

I’ve written a number of blog articles about parent time and the holidays, but in the interest of making sure you are in the right frame of mind, I thought I’d do another one this year.  The holidays can be a really lovely time with your kids, if you and your ex can be grown ups about it.  I’ve mentioned this a few times before as well.  You have a parent time order in place; follow it.  You and your ex have family holiday parties going on that may or may not coincide with your particular parent time schedule; work with each other so your kids can be part of both of their parents’ family fun.

In Utah this aspirational “working together” thing has actually been made part of the statutes.  It’s called the Advisory Guidelines, and they’re found at UCA 30-3-33.  Some specific portions that are important to follow during the holiday season:Treat them as good as you are

(3) Special consideration shall be given by each parent to make the child available to attend family functions including funerals, weddings, family reunions, religious holidays, important ceremonies, and other significant events in the life of the child or in the life of either parent which may inadvertently conflict with the parent-time schedule.

(17) Each parent shall be entitled to an equal division of major religious holidays celebrated by the parents, and the parent who celebrates a religious holiday that the other parent does not celebrate shall have the right to be together with the child on the religious holiday. (emphasis added)

Note the “shall”s in those parts of the statute.  That means that this working together and being nice for the sake of the kids is mandatory.  And you should think it’s mandatory anyway, without having to have the law tell you how to be a good parent. Because honestly, that’s all the advisory guidelines are–the law telling you to be a good parent, not jerk the other parent around, do what you can to make your child’s life and experiences as full and peaceful and normal as possible, even though his/her parents are divorced.  Be a good person.  Communicate about the kids.  Think about how what you’re doing and how you’re interacting with your ex will affect your kids.  These are not hard things.  And if you’re the only parent doing it, STILL DO IT.  Somebody’s gotta be the grown up.  Take it upon yourself to Be the Grown Up.

Let there be peace on earth, and let it begin with me….

 

30 Days of Thankfulness (Condensed Version)

A lot of my friends do the “30 Days of Thankfulness” thing on social media in November.  While I haven’t consistently gotten into that, there is much to be said for stopping for a minute each day and pondering the good in our lives, and what we have to be grateful for.  I don’t do the Write An Essay Every Day thing.  Quite frankly, some days it’s really hard to raise up my head enough to do anything besides keep moving forward and breathing in and out.  I’ve mentioned my struggles with depression and anxiety a bit on this blog before, but just suffice it to say that when we hit the holiday season, those two near constant companions of mine shift into overdrive.  But today, right now, I feel pretty good.  So here are 30 things I am grateful for, in no particular order.  And we’ll call that the condensed version of my 30 Days of Thankfulness.

  1.  My husband.  I have known my husband since we were both in the 6th grade at Harding Gibbs Middle School in Firth, ID.  We were friends, but not Friends.  We ran in different circles entirely going through school.  I saw him just twice in person between our high school graduation in 1991 and May of 2014.  But what a difference a couple of decades+ make!  The timing was awkward, but I don’t regret getting together with him.  I love him to pieces. He makes my life easier.  Which was a totally new concept for me in being in a relationship with someone.  I am ridiculously grateful for him, and I hope I let him know that enough.
  2. TSW
  3. MTW
  4. CMW
  5. JDW….who are
  6. My kids.  I have four sons, and I will tell you right now–they are the reason I have survived as long as I have.
    BoysLawschoolGrad

    My boys with me at my law school graduation

    From the “in honor of” note that I put in my law school graduation program: “IHO…my incredibly gifted and attractive sons.  I would not have come here (to law school) had I not needed to for you.  You are my reason for being.  I love you!!”  The only thing that’s changed since then is I love them more.  They’re pretty incredible young men and adults, and I’m beyond thankful for them… That’s why they get 5 spaces on this list 😉 .

  7. Also from my “in honor of” from my law school grad program: “IHO My phenomenal family and friends: For money deposited regularly (and sometimes surreptitiously) into my checking account; for car maintenance, tires, and tanks of gas; for innumerable pep talks; for cash stuffed into my purse and sent in the mail; for places to stay; for being there for my kids when I couldn’t be; for facilitating me being The Mom to my boys; and for flatly refusing to allow me to quit when it was too hard for me to go on.  I will forever be grateful.”  The only thing that’s not the same as it was then is that my family and friends have given me MORE support over the years.  I am so grateful for them!
  8. Cars that are (currently) running.
  9. Gas prices under $3/gallon.
  10. An actual Job, with direct deposit, paid vacation, paid holidays, and health insurance.  It’s pretty awesome, especially having NOT had one for a really long time.

    Tim&Wyo

    My hubby & Wyoming…a twofer

  11. Wyoming.  Wyoming has been very good to me.  In particular the Bank of Star Valley and the University of Wyoming.  Much kindness has been (and continues to be) poured my way in my difficulties, particularly from the Bank.  Those are awesome, solid people.
  12. Humidifiers to ease a cough at night.
  13. Bathtubs and epsom salts soaks.
  14. My nail lady and her fantastically long-lasting shellac nails that are so lovely and so inexpensive that I can afford to look at my hands and see pretty things 🙂 .
  15. My stepchildren.  I have 5 of them.  They’re good kids, and I’m learning a lot about being a better person from them.  So thanks, guys 😉 .
  16. Wide calf knee boots.
  17. Spandex in jeans.
  18. Air conditioning and central heat.
  19. Smartphones.  What did we do without smartphones???
  20. My cats.  They’re weirdos, for sure, and they shed like mad, the one is a diva, another is kind of a jerk sometimes, and the third is downright Odd, but they really do make my life better, and I’m very glad I get to share my home with them.
  21. Prisms and rainbows.  I’ve gotten a little obsessed with them…

    View from the front porche 2015

    The view from the front porch…with mountains.

  22. My home.  My husband and I moved into our house in July of 2015.  At the time we found it, it was for sale, but we didn’t qualify for a home loan.  So we talked the owners into doing a lease purchase agreement on it; we closed on September 30, 2016.  My dad co-signed on the mortgage for me.  I love my house.
  23. My piano.  I just recently inherited this from my mother, as she has just inherited HER mother’s piano.  It’s 111 years old, and it’s seen better days, but it’s been a fixture in every Home that has ever felt like Home in my life.  I love it.

    MyPiano

    My piano

  24. My family in law.  My husband’s family has welcomed me into their world with open arms and a little bit of sarcasm to boot.  They’re fantastic.  I’m grateful for them all.
  25. Facebook and Instagram.  Social media can definitely be a double-edged sword, but it’s how I keep in touch with people I wouldn’t otherwise ever see.  I love that I can share in my brother’s life, even though he lives in Malaysia, on a day-to-day basis.  And I’ve met some fantastic people in the far-flung reaches of the country that I love getting to have friendships with, that I otherwise would never have met.  I’ve reunited with old friends, and truly appreciate the circle of support that comes with social media.  So with all its many flaws, I’m grateful for it.
  26. The Bloggess, aka Jenny Lawson.  She has a blog that has been a huge boon in the lives of thousands of people.  My first experience with her writing was a post about a giant metal chicken named Beyonce.  Her books have made me laugh my tail off, and cry my eyes out.  She is an asset to all of us who have dealt with the Invisible illnesses.  I’m thankful for her. (You can read that first post that hooked me here ).
  27. My garden, especially homegrown tomatoes and basil.
  28. My washer and dryer.
  29. Electricity.
  30. Mountains.  For most of my life I have lived near mountains.  They are grounding and settling and orienting, and they give me peace.  Thank God for mountains.

Yeah, that was a pretty random list.  But life is random, and I am grateful for so many Random things.  I will use this list to help me maintain my personal peace as this holiday season crashes in on me….there is much to be grateful for.  Weirdo cats and all.

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