After a successful morning in court, I decided to talk a bit about guardianship and conservatorships. I go a bit more in-depth below the video.

We do a lot of good in my practice. A big part of my success centers on my belief that whatever we do, we do it for the right reasons. If I agree to represent you in a divorce it won’t be because you paid me but because I believe that I can help you not just in the courtroom but also help you improve your life and your kids lives. Similarly, in a custody case, I will only represent a parent if I believe I can help that child have a better life, which means that is what my client must want too. We don’t do revenge and we don’t do petty at the Pavlov Law Firm.

However, some of the things we do are specifically designed to help those in need the best interest standard for custody of children shares this mandate, though people’s motivations vary). Guardianships and conservatorships are an example of an area of law that is designed solely to help those in need. Without diving too deeply into the specifics of the law, suffice it to say that the court’s sole focus in any guardianship or conservatorship matter is the protection of a vulnerable person, whether that person be a now grown-up disabled child or an elderly parent dealing with dementia or other health issues.

Here is a common fact pattern to illustrate how this works: A client comes to see me because their elderly father is suffering from dementia and needs help paying bills and arranging medical treatment. The client’s initial thought is to have a Power of Attorney drawn up, but, obviously, the father’s capacity would render the Power of Attorney suspect at a minimum. Further, the power of attorney does not help set the parameters of the client’s acceptable powers (POA’s are broad, which is part of the danger) and it can be revoked. Further, if the client has brothers or sisters, particularly if they lean a bit self-involved, self-righteous, and/or selfish, operating under a POA could lead to very complicated allegations. I also find that ethics can become quite complicated for a person with a POA over their elderly parents. All the work that goes in to helping someone with such needs can be overwhelming and a generous gesture from the parent can quickly be interpreted as overreach or taking advantage by the adult child.

The guardianship and conservatorship solves these issues. The court’s oversight and the process for establishing the guardianship and conservatorship forces transparency. Ultimately, there will be no question over the correctness of the guardianship or conservatorship as the burden of proof is quite high, if easily satisfied based on obvious infirmities. Moreover, the conservator is a fiduciary and therefore holds major responsibilities to the Ward and must act in their best interest, something that is a lot easier to do when you have a black robe reviewing everything. The funds will be properly placed into a conservatorship account and the conservator will have to do an accounting each year. Anyone approved by the court will be able to review the accounting and, of course, the judge will review it. Further, the court will also set budgets when appropriate and approve major expenditures and sales of assets, while providing the conservator enough flexibility to hopefully handle the ward’s affairs without much judicial oversight.. So if the house is sold, well, the court will have had to approve it, but the day to day things will not until the accounting. Any question or concern from any interested party can be brought to the court and transparency is essential so no one should fear these questions. And since this is all pretty much set in stone, most folks have very little interaction with the court after the conservatorship and guardianship is established other than the accountings because the court is not there to make these things harder. The court is there to help the Ward. If there are problems, bring it out in open court and let the black robe make the hard calls.

This does not mean that Guardianship and Conservatorships are easy things. It is a major burden to act as someone’s Guardian and Conservator. It is a selfless thing to do and most people do not get paid for doing it, though there are provisions for pay in some situations and for reimbursement of expenditures made on the Ward’s behalf, including, potentially, the establishment of the guardianship and conservatorship. Further, the court’s feelings about what is best for the Ward may differ from the client’s, but that possibility is inherent in any matter in the chancery court that focuses on best interest. Still, if you are working truly for the best interest of the Ward, the court and the client will ultimately end up on the same page (with good lawyering).

Having previously written about the basics of termination of parental rights in Mississippi, it seems apropos to elucidate on the more subtle realities of a termination of parental rights case in the Chancery Court setting.  Here are ten pragmatic considerations I think everyone should think about whether they intend to pursue terminating someone’s parental rights or their parental rights may be terminated.

1. Effort matters

If you try, sincerely try to be an active part of your child’s life and to get your life in order, the court should not be able to terminate your rights. Even if you have faded out of the child’s life for quite a while, taking action to be a parent makes a huge difference. Similarly, if you are facing other issues (chronic unemployment, alcoholism, drug addiction, early life criminality), taking demonstrable steps to show that you are no longer that person matters a great deal. AA, NA, job pursuit, etc. could make or break the case. Truthfully, it does not take much to stop your rights from being terminated. Just try for real. No gimmicks. No half-measures. Try. The rest of us do it every day.

1. Kids do not have to wait forever for their parents to step up.

Life moves fast and childhood moves even faster.  While a parent struggles with addiction, immaturity, criminality, or whatever it is that keeps them from being a good parent, the child continues to grow up. They move on and often a new adult steps into the parental role. At some point, it is too late. The law sets it at six months/a year, but the reality often takes much longer as the parent fades in and out of the child’s life. Yet, at some point, the kid has waited long enough and the non-custodial parent has for all intents and purposes forfeited their right to be a parent.

1. Intentionally cutting a parent out of the kid’s life on purpose may prevent termination

On the other end of things, if the custodial parent cuts the other parent out unilaterally, blocking them from contacting the children at all, the parent’s whose rights are subject to termination can use that as a defense. You cannot desert a child who you are actively being prevented from seeing or contacting. However, effort still matters. Taking action to enforce your rights through the court system is the appropriate avenue to combat a parent who won’t let you see or talk to your child. Sitting around and waiting is not.

1. Drug Addiction is often fatal to a person’s parental rights, even if you get sober.

One of the most difficult issues facing the Chancery Court centers on what to do about chronic drug addicts. Experience (daily experience) in the court shows how fragile sobriety is and the devastating consequence on children when a parent relapses. Combine this with the length of time the parent has abused drugs while their kid is raised by someone else, and the court may feel that it is not worth experimenting with the child to test your sobriety. That being said, continued drug addiction makes termination a much easier decision for the court.

1. Waiting to terminate someone’s rights may end up preventing an adoption

On the other end of things, not taking action to terminate a parent’s rights gives that parent time to fix their lives. It makes sense not to poke a sleeping bear i.e. if the dangerous parent has simply disappeared from the child’s life, the custodial parent may think it is best to let sleeping dogs lie and just move on, particularly if the initial custody case or relationship was difficult, but people change and at some point they may not be morally unfit anymore and they may sincerely want to support the child, at which point the court may find that even if the grounds existed for a while it is no longer in the child’s best interest to have their parent’s rights terminated. As stated above, effort matters. Getting clean and sober, paying child support, and then suing to reinstate visitation from the get go creates a sort of prima facie case against desertion, moral unfitness, and abandonment.

1. If your rights are on the line, you are entitled to an attorney

If you cannot afford an attorney, the court is obligated to appoint an attorney for you. That is how seriously the state takes termination of parental rights, you are afforded the same right to a free attorney as a person facing incarceration.

1. You can voluntarily agree to have your rights terminated

The law allows for a parent to sign a form voluntarily terminating their rights. A person’s rights are not terminated until the court accepts the voluntary relinquishment of parental rights, but this is the simplest mechanism to have your rights terminated. Often when an absent or deeply troubled parent realizes that they have been displaced by a more active and loving step-parent and the child has adjusted to this new parent, sees them as their real parent, and that new person wants to adopt the child, the non-custodial parent may recognize that the adoption is in the best interest of the child and make the magnanimous decision to let the child move on with his or her life in peace, or they just want to stop paying child support.

1. You cannot unilaterally terminate your own rights

This one should be obvious, but you cannot just waive your parental responsibilities because you do not want to be a parent to your child or to avoid child support. Public policy weighs heavily against such awful behavior. Some lawyers will sue to terminate their own client’s rights, but these suits are borderline bad faith in my opinion and require the other party to agree to the termination.

1. The Guardian ad Litem holds a great deal of sway over the outcome of the lawsuit

The court will assign an independent attorney to conduct an investigation into the allegations and make recommendations as to what he or she believes to be in the child’s best interest. The Guardian ad Litem does not act as anyone’s attorney, but as more of an investigator for the court with the mandate to protect the minor child’s best interest. The GAL gets to go to peoples’ homes, review medical records, speak to witnesses, meet the children, interview the parents and pursue whatever they deem necessary to make a determination as to what is in the child’s best interest. Practically, this means that the Guardian ad Litem receives a much more nuanced view of the situation than the court will get in a day or two of trial. Work with the Guardian ad Litem to help him or her understand what is in the child’s best interest.

1. The Best interest of the child rules all

Amongst all of these issues, one consideration looms large over everything else - the best interest of the child. Regardless of the amount of proof on the grounds for termination, if the court determines that cutting a parent completely out of the child’s life is not in the child’s best interest, the court does not have to terminate the parent’s rights, and, in fact, should not. If the court finds that the parent subject to termination has completely reformed him or herself, but the grounds for termination have been established and the court thinks it is in the child’s best interest for his or her parent’s rights to be terminated, then that remains the appropriate course of action.

These are just a few of the considerations and realities of termination of parental rights cases in the Chancery Court. Each case is different and it is important to speak with an attorney about your situation if you intend to sue someone to terminate their rights or if someone has sued you to terminate your rights.

Termination of parental rights presents one of the most challenging issues that come before our chancery courts. It is also a pre-requisite to most adoptions (absent a deceased parent, of course). Terminating a person’s parental rights means exactly what it sounds like. The court permanently removes all of a person’s rights to their child, including the right to be identified as the child’s parent on his or her birth certificate. It is commonly known as the Death Penalty for Parents. Once a person’s parental rights are terminated, they have as much right to the child as a random person working at a gas station down the street i.e. no rights. In the eyes of the law, that persons has become a stranger to the child.

Parents have a “fundamental liberty interest…in the care, custody and management of their child” that cannot be taken away without clear and convincing evidence of the required statutory grounds for termination of parental rights. As termination of parental rights infringes on a person’s fundamental rights, there is a strong presumption in favor of preserving parental rights. “It is well settled that a parent's right to raise [his] children is of a fundamental nature, and is entitled to great protection, but that parental rights may be terminated when the welfare of the children is threatened. “State statutes providing for the termination of parental rights are subject to strict scrutiny and ‘[c]ourts may not add to the enumerated grounds.”

Considering the extreme and permanent nature of termination of parental rights, the courts and legislature have made clear that a party seeking the termination of a party’s parental rights must produce evidence so clear and convincing that it “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.” Even once the clear and convincing burden has been met, the court must then consider the best interest of the child. The best interest of the child is the polestar consideration of the court.

While all of this sounds complicated and weighty, the day-to-day reality of termination of parental rights cases often end up quite straightforward, obvious even. Due to the serious nature of termination of parental rights and the clear standards for terminating parental rights, termination lawsuits are only brought when things have gone seriously awry in the non-custodial parent’s home. Generally, our courts look to three separate causes justifying the termination of a person’s parental rights: abandonment, desertion, or moral unfitness.

The simplest is abandonment, which generally means the parent has not made contact with their child for one year (six months if the child is under three). If you have not called, tried to call, visited or made a real effort to visit your child in over a year (or six moths), the present parent or acting parent can sue to terminate your rights. Voluntary Relinquishment of Parental Rights will be addressed in a separate post, but it is the easiest method for terminating someone’s parental rights.

Desertion generally means that a parent refuses or has wholly failed to act as a parent, providing for the child, taking care of the child, or  raising the child. The law defines it as (i) Any conduct by the parent over an extended period of time that demonstrates a willful neglect or refusal to provide for the support and maintenance of the child; or (ii) That the parent has not demonstrated, within a reasonable period of time after the birth of the child, a full commitment to the responsibilities of parenthood. If you pop up on occasion demanding the child, preventing a finding of abandonment, but you do nothing for the child, instead using the child selfishly to get back at your ex or to make yourself feel like less of a piece of trash, then the person raising the child can sue for desertion. If the other parent has stopped you from acting as a parent, then you have a defense, but generally the proof is in the pudding.

Moral unfitness trends more towards chronic criminality and addiction issues - things that place the child in danger while in the parent’s care with a history indicating that these dangers are unlikely to resolve. Chronic alcoholics with multiple DUIs, meth heads who refuse to get clean or cannot stay clean, repeat domestic abusers, murderers, convicted thieves, drug dealers, prostitutes all typically fall within this category. Truthfully, drug addiction provides the most complicated situation in termination cases. Even an active pursuit of sobriety may not stop a termination if efforts to stay clean have failed in the past and the children have been impacted adversely by the parent’s drug addiction.

However, even where the custodial parent/grandparent/third party can prove one of the above grounds, he or she must also prove that termination befits the best interest of the child. The best interest of the child always lays at the heart of any custody case. It is the polestar consideration of the chancery court. Though typically if a party can prove one of the above grounds termination is self-evidently in the best interest of the child, there are times when even the sort of bad behavior described above cannot undo the parental bond and courts should not terminate a parent’s rights.

Generally, there are two major factors the courts consider when rejecting a petition for termination where the grounds can be proven: The parent has established a lengthy history of stability and the child desires some sort of relationship with the parent. The first is a pre-requisite for contact of any sort. If the parent remains a danger or woefully unstable then the risk of reunification to the long term well being of the child is just too much. The second recognizes the damage that is done by removing a parent from a child’s life. The child will inevitably feel the loss of the parent, particularly if they have a working memory of the parent - this issue is not as pressing in cases in which the child has little to no working memory of the absent parent. However, if the child remembers their parent before things went wrong, the court should pay closer attention to the negative consequences of removing a parent from the child’s life. In these situations, the court will often require an attempt at reunification counseling. While reunification may or may not work, it at least gives the child a chance to have questions answered and receive some sort of closer.

The point of all of this, of course, is to help the child grow up with as much stability, love and consistency as possible; to protect the child from being placed in dangerous and destructive situations, and to allow the child to have parents worthy of the title. In my mind and in the way I read the law, it is very child focused. Though the rights of the parents are at issue, the parent is an adult and the child is a child. The child comes first.