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September 22, 2020 Adoption

Representing Biological Parents in Contested Termination Proceedings

By Kelsy Miller

We often talk about representing the prospective adoptive parents, but rarely discuss the biological parents. We may be appointed to represent these parties, hired immediately upon their being served, or may be retained to walk them through the surrender process.

We often talk about representing the prospective adoptive parents, but rarely discuss the biological parents.

We often talk about representing the prospective adoptive parents, but rarely discuss the biological parents.

Credit: Pixabay via Pexels


When representing a biological parent in a surrender or uncontested termination of parental rights proceeding, it may seem as if it’s already “a done deal”. But to fail to explain to your client both the consequences and silver linings would be a huge missed opportunity in advocacy and legal representation. This is where you have the chance to assist your client to view a surrender as the selfless act it is.

A primary benefit of a surrender is usually that the proceeding ceases to be, or refrains from becoming, adversarial. It means that everyone is on the same page, and the anxiety that comes along with a lengthy trial in which the faults and actions of your client are analyzed and reduced to findings in a final order is no longer present. The tone of a surrender is much more cordial, as courts understand that the best interest of the child is at the heart of the surrender. These proceedings are private.

There is an increasing trend of post-adoption contact agreements that are permitted via statute. These should not be overlooked, as your client may not even know these are an option. It’s a chance for the bio parents to secure something that they could not otherwise obtain in the event there becomes a contested termination proceeding.

A surrender is also a chance for finality. This is beneficial for a biological parent wishing to surrender, especially one who has secured a post-adoption contact agreement. Your client is no longer subject to court proceedings, and therefore there is also finality for the child’s sake. The finality and security that a child receives by the ultimate adoption, and the extinguishing of unknowns brought by litigation is something that a biological parent can gift the child, when they often are not in a position to give much more.

Your client must also understand the permanency of the surrender once any revocation period has lapsed. This is explained to them as part of the surrender process, but it’s good practice to walk them through all the questions and topics a judge will go over with them.

Contested Trial

There are times, however, when your biological parent client simply does not agree that a surrender and ultimate adoption is in the best interest of the child. If that is their position, then you must fight for it fiercely.

Prepare them for the adversity. Prepare them for the examination on the witness stand and to explain any former lapses in judgment which may have led to contested termination proceedings. Insight is a huge component of what a court needs to see in order to believe that these same lapses in judgment will not be repeated. Ideally, your client would have been on their best behavior throughout the length of litigation. As most of us are well aware, we don’t always have the luxury of a well-behaved, consistent client. Always be honest with them and attempt to manage expectations prior to the trial.

Protect your record for an appeal in the event you do not get the result for which you had hoped. You have to ensure that on appeal, you raised all relevant objections and defenses at the trial level. A constant and thorough review of state appellate opinions regarding contested termination proceedings can often help you reverse-engineer a case outline, a defense. These appellate cases can often point to changes in your state law. Working backwards from case law, and forward from the statutory language, simultaneously, gives you the best chance to recognize holes in the Petitioners’ case, and gives your client the best chance for a successful outcome.

Finally, whether your client wishes to surrender, or wishes to contest a termination proceeding, and you do not believe that their chosen course of action is in their best interest for whatever reason, an option is to write down the reasons why you’ve given the advice you have, and ask that the client sign the document. This is for your file only. Thorough representation in either scenario ensures that the entire adoption proceeding is done correctly, maintains its permanence, and is in the best interest of the child. 

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Kelsy Miller

Esq., Cookeville, TN

Kelsy Austin Miller Family Law

ABA Section of Family Law Adoption Committee Chair