The following is general legal information, provided as a public service by Oregon’s lawyers. The information is not intended to be legal advice regarding your particular problem. Note that changes may occur in this area of the law.
Parents’ rights include the right to the care, custody and control of their child; the right to discipline the child; and the right to control the religious and moral education of the child. Children are under the charge of their parents and are expected to live with them and obey them. Parents also must support their children. Normally, the state cannot interfere with these rights, so long as the parent fulfills his or her obligations to provide for the child’s care and support.
When parents do not support and care for their children, the state may intervene. The state does this to prevent child abuse and neglect and to prosecute parents who do not provide adequately for their children or who are abusing their children. The state also may interfere under the authority of the juvenile court and temporarily or permanently take away the parents’ rights in order to protect the child from neglect and abuse. This is done to protect what is called the “best interests” of the child, meaning that the court considers everything in the child’s life in order to decide where the child should be placed and what kinds of services the child and family need.
Anyone who believes a child is in danger or needs help may call the
juvenile court or the Department of Human Services Child Welfare division.
State laws list certain public officials and private professionals
who must report evidence of physical and mental injuries, sexual abuse
or severe neglect to the police or to DHS. Anyone who makes a report
in good faith and on reasonable grounds is immune from civil and criminal
liability, and in most instances the informant’s name will not
be released to anyone outside DHS.
The police or DHS investigates reports of abuse and neglect. If the
investigation supports the report, DHS can file a petition in the juvenile
court. If the child is in danger, the police or the child welfare division
of DHS may take the child from his or her home immediately. A hearing
will be held the next court day before a judge at the juvenile court.
This hearing decides whether the child should be returned home or held
in shelter care until a full hearing on the facts can take place. The
court must also decide what reasonable efforts have been made to keep
the child in the home and prevent removal of the child. The parents
have the right to be represented by a lawyer at any court hearing.
Depending on the facts, the court may provide a lawyer for a parent
who cannot afford one.
If the judge finds at an initial court hearing that there is sufficient
reason to believe a child has been abused or neglected or placed at
risk of harm, or that the child’s behavior is beyond the parents’ control,
the child may be placed in the temporary legal custody of DHS or a
third party. The child may be left in the parents’ home with
monitoring, or may be removed to foster care. When parents lose legal
custody of the child, their rights to make decisions regarding discipline,
education, medical care and placement are limited. Those responsibilities
then typically fall to DHS, the caregiver and the judge, with input
from other parties including attorneys for the parents. At later hearings,
it is possible the child will be made a ward of the court. This means
the parents can be ordered to engage in services to remedy the situation
that led to wardship, in order to regain physical and/or legal custody
of the child. If the child is in foster care, DHS must try to find
relatives who may be able to care for the child. Grandparents may,
in some circumstances, have the right to intervene in these cases,
although they do not have the right to an attorney at state expense.
While the child is in foster care, a DHS caseworker will work with the parents until the judge is convinced that it is safe to return the child home, or until one year from the initial court hearing has passed. At that time, if the child has not already returned home, the judge will conduct a permanency hearing to make a plan for the child, after reviewing the family’s progress. When the family can be reunified safely, the parents will regain custody. If the judge concludes that reunification cannot occur within a reasonable time after the permanency hearing, he or she may decide that the most appropriate permanent plan for the child should be adoption. In that case, a petition seeking to terminate the parents’ rights to the child will be filed.
A petition may be filed to terminate one or both parent’s rights
to the child in the following situations:
- The parent or parents are not fit to care for the child because there has been one or more incident(s) of extreme conduct toward their child or any child. Examples of extreme conduct include rape, intentional torture and serious physical injury.
- The parent or parents are not fit to care for the child because unsafe conditions at home are not likely to change in the near future, making it impossible for the child to return home. Examples include parents involved in drug abuse, chronic neglect of the child, or untreated mental health problems.
- The child is abandoned, the parents cannot be found, and the parents do not claim the child within three months.
In these situations, the parent has a right to trial
on the petition to terminate his or her parental rights. The trial
judge decides whether one or both of the parents’ rights to the
child should be terminated. If the court decides to terminate the parents’ rights,
the parents may appeal that decision.
Once the parents’ rights are finally terminated, the parents
can never get them back. In the eyes of the law, there is no further
right for the child to inherit from the parents or vice versa, there
is no obligation to support the child and there is no right to control
the discipline or education of the child. Since the child now has no
legal parents, he or she may be adopted by a new parent. It is the
decision of the juvenile court whether the child continues to stay
in foster care, is placed with an adoption agency, or is adopted immediately
by a new parent or parents. Since the original parents’ rights
have been terminated, those parents have no authority to appear in
any of these proceedings.
Legal editors: Judith N. Rosenberg and Robin L. Wolfe, February 2009