Can Parental Rights be Terminated When a Parent is Incarcerated?

When can a parent’s rights over their child be terminated by the state?  The government may not take a child away from a parent simply because they do not agree with the parent’s decisions.  The state must show that the parent is unfit and that severing the relationship is in the best interests of the child.  One of the ways a court may find a parent is unfit is if they abandoned their child.  If a parent is incarcerated can that be considered the same as child abandonment?


In Arkansas, if a parent is incarcerated “for a period of time which would constitute a substantial period of the juvenile's life” the Department of Human Services may petition the court to terminate the parent’s rights.  The court must decide if the parent’s prison sentence is substantially long enough to warrant severing their parental rights, the most drastic step the court can take.  If a child is less than a year old though what is a substantial period of their life?

Lindemood v. DHS

Last summer in Lindemood v. Department of Human Services the Department petitioned the court to terminate a father's rights because he had been in jail for the entirety of his 1 year old son’s life and the child was “99.99% likely to be adopted”.  In adoption proceedings parents have the right to object and their rights usually must be terminated in the adoption order if the court allows the adoption.

Last week the Department’s request was denied by the Arkansas Court of Appeals.  The court ruled that the Department’s standard for determining the level of parental involvement in the child’s life was faulty.  The Department should look at the child’s age and what a parent can do to be in their child’s life during that time period.  The court ruled that DHS held Lindemood to the same standard that a parent of an older child would be subjected to, when it should have held him to a standard of a parent of a 1 year old child.

Acting as a Parent

The court recognized that since his son was an infant during his incarceration there was little that Lindemood could do to establish a parental relationship with him; his child could not read letters from him, understand the meaning of a gift, or participate in a phone call with his dad.  The court ruled that Lindemood’s attempts to make contact with his son’s maternal grandparents, and both the Department and the court to fight the termination were enough actions to indicate he wanted to be involved in his son’s life.

Because our society has always placed a high priority on not interfering with a parent’s upbringing of their children, the Supreme Court has ruled that parents have an implied constitutional right to be left alone by the government. In Arkansas, the state Supreme Court has ruled this right requires “clear and convincing evidence” before a parent is found unfit.  This case shows that the right to be a parent to your child is so fundamental that even an incarcerated parent, who has already lost many rights, may still retain that right.


for more information about parental rights, contact a family lawyer today.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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