CASE MANAGEMENT

CS 067P Termination of Parental Rights and Adoption

12/24/03 Revised 11/01/05 Training Completed 11/15/05

UCA 78-3a-413 and 78-30-11

 

Statutory Authority

 

Utah Code Annotated (UCA) governs the termination of parental rights and explains the effect of such an action in 78-3a-413(1): 

“Effect of decree.
     (1) An order for the termination of the parent-child legal relationship divests the child and the parents of all legal rights, powers, immunities, duties, and obligations with respect to each other, except the right of the child to inherit from the parent.”  (Emphasis added.)

 

UCA 78-30-11 governs the effects of an adoption action on parental obligations as follows:

“Birth parents' rights and duties dissolved.
     The birth parents of an adopted child are, from the time the final decree of adoption is entered, released from all parental duties toward and all responsibilities for the adopted child, and have no further rights with regard to that child.”  (Emphasis added.)

 

If arrears are not specifically preserved in a termination of parental rights order, an adoption order or a sum-certain judgment and the custodial parent (CP) wishes to collect them, s/he may attempt to do so through private counsel and the court, but the Office of Recovery Services/Child Support Services (ORS/CSS) will not attempt to collect them.  The agency is not taking the position that the money is no longer owed, only that CSS will not attempt to collect it once a termination order or an adoption order has been issued if the arrears are not specifically preserved in the order.

 

NOTE:  The following procedures apply only to CSS cases.  ORS/CIC may have different procedures for state custody cases.

 

Procedures for Final Termination of Rights or Adoption Orders Received

 

If you receive an order that terminates the parental rights of the non-custodial parent (NCP) or an adoption order, take the following actions. 

 

NOTE:  Since adoption orders are sealed, it may be necessary to rely on verbal notice from the CP or on PACMIS narratives (“CAAL notes”) that the adoption is final.  Although you will request a copy of the adoption order from the parent, if they do not or cannot provide it, proceed as directed below and assume that the arrears are not preserved.

 

1.                  End the ongoing support debt as of the effective date of the termination or adoption order. 

 

NOTE:  If the termination of rights or adoption order only affects one or some of the children included in a support order, the Attorney General’s Office (AGO) has advised that it is usually preferable to obtain a new support order to address the remaining children, but it may not always be necessary.  Review these cases and orders with your manager and the AGO to choose the best approach to take on a case-by-case basis.   

 

2.                  Review the termination or adoption order to see if the arrears debt is specifically preserved.  If the language in the order is vague or confusing, and there are Non-IV-A debts in question, consult with your management chain (Manager, Associate Regional Director, Regional Director, and CSS Director) and the AGO as needed.

 

NOTE:  If the termination or adoption order was issued in another state, the laws of that state control whether or not arrears are still owed.  If the arrears are not clearly preserved and you do not have information about the other state’s laws, ask the parties to provide evidence as to the status of the arrears (i.e. additional legal documents, an agreement signed by the parties, or a copy of the other state’s law.)

a.                   No, the order does not preserve the arrears debt: 

i.                     end all of the debts;

ii.                   adjust the arrears balances to zero;

iii.                  manually withdraw the lien;

iv.                 pend the case for closure;

v.                   send the “60-day Closure Notice:”

vi.                 create a case-level narrative documenting information about the order, including which parent’s rights were terminated, the date of the order, no provision to preserve the arrears, the adjustment code reason, and the pending closure; and,

vii.                refer the case to the team manager to approve the closure. 

 

NOTE:  If you find cases where CSS has been collecting arrears that accrued prior to a termination of parental rights or adoption order, but those arrears were not specifically preserved in the order, follow the above steps when you find the case.  If the CP contacts you about the closure, inform them that CSS no longer provides services under those circumstances, but that they may pursue collection privately.

b.                  Yes, the order preserves the arrears debt:  If the order contains specific language stating that the arrears are still owed or contains a specific dollar amount for past-due support, take the following steps, depending on what type of debts remain on the CSS case:

i.                     IV-A arrears debts only:  Although the order has specifically preserved the arrears due, CSS will not attempt to collect any IV-A arrears once a termination order or an adoption order has been issued.   

ii.                   Non-IV-A arrears only: 

A.                 Verify that the Non-IV-A arrears debt on ORSIS matches the dollar amount specified in the order (if any).  Make any adjustments necessary.

B.                 Continue all appropriate enforcement/collection actions to collect the remaining debt.

iii.                  Mixed IV-A and Non-IV-A arrears: 

A.                 End the AFDC debts.

B.                 Continue all appropriate enforcement/collection actions to collect the remaining Non-IV-A debt.

 

NOTE:  If the applicant provides a copy of a termination or adoption order from Utah’s Juvenile courts when applying for CSS services (IV-A or Non-IV-A), and the order does not specifically preserve the arrears, CSS will not attempt to collect any alleged arrears that may have accrued prior to the termination/adoption order.  Intake will open a case as required when an application is received, create a case-level narrative documenting the pertinent information about the termination or adoption order, and then pend the case for closure.  The CP may still attempt to collect the balance through private counsel or the courts. 

 

Procedures – Arrears Preserved with a Sum-Certain Judgment

 

The CP may obtain a sum-certain judgment to preserve arrears that accrued prior to the termination of parental rights or an adoption.  The judgment may be obtained in conjunction with the termination or adoption order, or obtained as a separate sum-certain judgment at a later date.

 

If the former CP provides you with a copy of a sum-certain judgment that preserves arrears, open (or reinstate) a case to collect this Non-IV-A arrears only debt.  Use all appropriate enforcement and collection actions to collect the Non-IV-A debt.

 

Procedures for Termination of Rights Actions in Progress

 

If you are made aware that a termination of rights action is in progress, the steps you’ll take will depend on where the action is filed, what types of debts are involved, and if the action is supported by the CP or Department of Child and Family Services (DCFS).

 

1.                  Where is the termination action filed? 

a.                   District Court:  If we have an open CSS case with current support due (IV-A or Non-IV-A), refer the case to the AGO to object to the action on the basis of jurisdiction.  The action should be filed in the Juvenile Court and handled in that venue.

b.                  Juvenile Court:  Go to the next question.

 

2.                  Does DCFS support the termination action?  (IV-A or Non-IV-A case).

a.                   Yes.  CSS will support the DCFS position, as they are proceeding based on the best interests of the child.  Do not take any steps to preserve the arrears balance or object to the termination.  Once the termination order is issued, follow the steps in the Procedures for Termination of Rights Orders Received section above.

b.                  No or DCFS is not involved in the termination action.  Go to the next step.

 

3.                  Send the “Termination of Parental Rights Pending—Custodial Parent” to the CP.  Include the subform “Termination of Parental Rights or Adoption Pending, Custodial Parent Statement.”

 

4.                  Monitor for the “Termination of Parental Rights or Adoption Pending, Custodial Parent Statement” from the CP.  If the CP fails to respond, begin the appropriate non-cooperation sanction for a IV-A case or closure for a Non-IV-A case process.

 

5.                  Does the CP support the termination action?  Based on the information provided in the signed statement/response from the CP and the type of current support debt on the case, take the following actions. 

a.                   Yes, CP supports termination action.

i.                     Open IV-A case:  Refer the case to the AGO to object on the basis of the state’s interest due to the Assignment of Support Rights.  When opposing the action, the only issue that the AGO can address is the child support obligation.  If there is evidence that it is in the best interest of the child for CSS not to oppose the termination (i.e. there is a guardian ad litem for the child who supports the termination) then CSS will not oppose the action. 

ii.                   Open Non-IV-A case:  Pend the case for closure because the CP’s position in supporting the termination of the NCP’s rights is inconsistent with the application for services for CSS to collect, enforce, etc. from the NCP.

b.                  No, CP does not support termination action.

i.                     Open IV-A case:  Refer the case to the AGO to object on the basis of the state’s interest due to the Assignment of Support Rights.  When opposing the action, the only issue that the AGO can address is the child support obligation.  If there is evidence that it is in the best interest of the child for CSS not to oppose the termination (i.e. there is a guardian ad litem for the child who supports the termination) then CSS will not oppose the action.

ii.                   Open Non-IV-A case:  Refer the case to the AGO to oppose the termination action.  The CP’s position is consistent with the application for services for CSS to collect, enforce, etc. from the NCP.  When opposing the action, the only issue that the AGO can address is the child support obligation. 

 

Procedures for Adoption Actions in Progress

 

CSS will never oppose a pending adoption action.  A pending action is an action that has been filed in court.  Do not refer a case to the AGO to oppose an adoption action.  Do not take any steps to legally preserve the arrears.

 

If the adoption action is pending on a IV-A case, continue enforcement until you confirm that the adoption order is final.

 

If the adoption action is pending on a Non-IV-A case, send the “Termination of Parental Rights Pending—Custodial Parent” and the “Termination of Parental Rights or Adoption Pending, Custodial Parent Statement” to the CP to confirm the pending (filed) adoption.  If the CP confirms the pending adoption action, pend the case for closure because the CP’s position in supporting the termination of the NCP’s rights for the adoption is inconsistent with the application for services for CSS to collect, enforce, etc. from the NCP.  If the CP fails to respond, pend the case for closure. 

 

CIC (Foster Care/Youth Corrections) Cases

 

CIC will still collect arrears that accrued prior to the termination of parental rights even though CSS does not pursue comparable arrears on its cases.  The CSS policy is based on the statutory requirement that states when parental rights are terminated, the termination “divests the child and the parents of all legal rights, powers, immunities, duties, and obligations with respect to each other …” (UCA 78-3a-413(1) emphasis added). 

 

After consultation with other divisions related to this issue, a decision was made for ORS/CIC to collect on any arrears that accrued on a CIC case prior to parental rights being terminated.  The decision was based on the rationale that once a child is placed in the custody or care of the state, the support obligation is between the parent and the state.  In addition, the divisions felt that these arrears should be collected as they are frequently the result of abuse or neglect on the part of the obligor parent.  CIC administrative rule (R495-8821) clarifies the collection of these arrears.

 

If you have a case in common with CIC, and parental rights have been terminated, do not instruct the parties that ORS will not collect the CIC debt.  Refer any questions or inquiries to the responsible CIC agent.