Termination of Parental Rights
Friends and relatives are often left caring for the children of family or loved ones with no legal means to care for them. Depending on the circumstances, a private dependency or guardianship may be the proper legal mechanism to ensure that caregivers have the legal ability to care for a child or children in their care.
A common reason to file a private dependency is when the client believes a child is in danger of abuse or neglect and the client feels that making a report to the Department of Child Safety (“DCS”) has not caused them to step in and take protective action. A private dependency can permit a family member or friend to step in and take protective action for a child or children unable to protect themselves.
We have the expertise and skill necessary to help you decide if a private dependency is the right legal option to help you protect and care for a child or children in need.
Adopting a Child in a Dependency
Dependency cases are a major component of adoption law because they are frequently a precursor to adoptions. Dependency cases are also complex and specialized cases that involve DCS, numerous attorneys, frequent court hearings, and in some instances, trials. We help our clients navigate these confusing and frustrating cases.
A dependency is a case centered on a child who is a ward of the Court and is, therefore, dependent on the State of Arizona for protection because remaining in the care of a parent or guardian would “create a substantial risk of harm to the child’s physical, mental or emotional health or safety.” A.R.S. § 8-861.
Arizona Revised Statutes define a “Dependent Child” as a child who is adjudicated to be:
“In need of proper and effective parental care and control and who has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control.”
“Destitute or who is not provided with the necessities of life, including adequate food, clothing, shelter or medical care.”
“A child whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian or any other person having custody or care of the child.”
Most dependency cases, although not private dependencies, start with an employee of DCS taking temporary custody of a child. The temporary custody statute, A.R.S. § 8-821(A), requires that there are reasonable grounds to believe that temporary custody is necessary to protect the child from abuse or neglect. The standard of evidence for temporary custody hearings is probable cause. A.R.S. § 8-824(F). Although the initial temporary custody finding is granted ex parte, DCS is required to file a dependency petition within 72 hours of taking temporary custody. A.R.S. § 8-821(F).
Most dependency cases are filed by DCS rather than by private petitioners. These cases are the result of a call to the DCS Hotline by a mandatory reporter such as a police officer, a hospital employee, a teacher, or a doctor. But those calls can be made by family, friends, neighbors, or other non-mandatory persons who choose to report something. Less common are dependency petitions from private petitioners. When a private petitioner files it is because that person is concerned that a child (often who is living with them) would be at a substantial risk of abuse or neglect if returned to a parent and the petitioner chooses to take it upon themselves to file a dependency petition.
Although private dependency petitions should not be used unless necessary to protect a child from abuse or neglect, under the right circumstances a private dependency case provides opportunities for creative solutions to complex family-law problems
First, there are two forms of guardianship: Title 14, which are revocable guardianships by consent of the parent, and Title 8, which are more permanent guardianships often resulting from a dependency petition.
At Stuart & Blackwell we have a strong understanding of both forms of guardianships that can be established under Arizona law and we can provide advice and guidance on which form would best suit your needs.
Title 14, Voluntary Guardianships
This can happen in one of two ways. First, the parent or parents can sign a consent to the Guardianship which gets filed with the Court. Second, the petitioner can serve the parent(s) with the Petition and Notice of Hearing. If the parent either chooses not to appear and contest the Guardianship or chooses to appear and consent to it, then the Guardianship can be granted. Even within the Title 14 Guardianship, there are three different types:
- Emergency Temporary Guardianship: This is the most temporary and can be granted without notice to the parents, but the court will set a hearing and will require Notice of the hearing be served on the parents, unless a consent for the Guardianship can be obtained.
- Temporary Guardianship: This Guardianship lasts no longer than 6 months. There are no exceptions. This option should ONLY be used if you are sure the parent(s) will be ready and able to provide the care for their children within that timeframe.
- Permanent Guardianship: This is still voluntary, but will automatically renew each year when the Guardian files an Annual Report with the court. Despite its name, this Guardianship is still temporary in nature because the parents reserve the right to revoke.
In any type of Title 14 Guardianship, the parent(s) reserve the right to revoke the guardianship. To revoke the guardianship the parent must request a hearing and appear before the court. Despite the confusing names, Title 14 guardianships are temporary by design. For grandparents or other family members caring for children on a temporary basis, a Title 14 guardianship provides the caregiver with the ability to enroll a child in school and obtain medical care, health insurance, and public assistance. This type of Guardianship only temporarily infringes on parental rights. This is often a good middle ground for a client (such as grandparent clients) to suggest to their children without alienating them. Another benefit of this option is that the Department of Child Safety (DCS) isn’t involved in the case.
Title 8, Permanent Guardianships
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