When it comes to child welfare law, few proceedings are as serious — or as life-changing — as a termination of parental rights (TPR). Once parental rights are terminated, the legal relationship between parent and child ends permanently, and the child becomes legally free for adoption.
In New York and across the U.S., agencies like ACS (Administration for Children’s Services) or DFS (Division of Family Services) are governed by the Adoption and Safe Families Act (ASFA), which balances a parent’s right to reunification with a child’s need for permanency and safety.
When Must ACS or DFS File a TPR Petition?
Under ASFA, an agency must file a TPR petition when:
- A child has been in foster care for 15 consecutive months, or
- 15 out of the most recent 22 months,
- Counting from the date the court found neglect or abuse, or 60 days after temporary placement, whichever is sooner.
However, simply being in care for 15 months is not a legal ground to terminate parental rights. It just triggers the agency’s obligation to decide whether to file, unless an exception applies.
Legal Grounds for Termination of Parental Rights
A TPR can only be granted if the agency or petitioner proves at least one statutory ground by clear and convincing evidence:
1️⃣
Abandonment
- The parent has failed to visit or communicate for the most recent six months.
- Occasional or meaningless contact does not defeat a finding of abandonment.
- The agency does not need to prove diligent efforts for reunification in abandonment cases.
2️⃣
Permanent Neglect
- The child has been in care for at least one year, or for 15 of the last 22 months.
- The agency must prove it made diligent efforts to help reunite the family — such as arranging meaningful, bi-weekly visits, referrals for services, and warnings about the consequences of non-compliance.
- The parent must show they addressed the problems that led to placement (e.g., completing treatment, parenting programs, and demonstrating changed behavior).
Tip: The parent’s mere attendance in services is not enough if they refuse to acknowledge or correct the behavior that caused the removal.
3️⃣
Mental Illness or Intellectual Disability
- Must be proven by expert testimony and medical evidence.
- The petitioner must show the condition prevents proper and adequate care now and for the foreseeable future.
- The child must have been in care for at least one year.
4️⃣
Severe or Repeated Abuse
- Examples include murdering a sibling, severe physical injury showing depraved indifference, or sexual abuse that would be criminal if prosecuted.
- Repeated abuse means two or more substantiated incidents within five years.
5️⃣
Previous TPR
- If a parent’s rights were previously terminated for another child, the agency does not have to show reasonable or diligent efforts again.
Exceptions: When ACS or DFS May Decide
Not to File
ASFA and state law allow exceptions if filing a TPR is not in the child’s best interests. Examples include:
✔️ Relative Placement: If the child is placed with a relative in foster care (subsidized kinship guardianship), or paroled to a relative outside foster care, there is usually no TPR requirement.
✔️ Compelling Reason: A therapist, child’s wishes (14 years or older must consent to adoption), or other factors show TPR is not best for the child.
✔️ Incarcerated or Inpatient Parents: If a parent in jail or treatment maintains a meaningful relationship by writing letters, calling, and engaging in services, the agency can decide not to file.
✔️ Failure to Provide Services: If the agency did not offer required reunification services, that can excuse the obligation to file — but caseworkers rarely admit this.
✔️ Underlying Case Still Open: Technically, a court can terminate rights even if the original abuse/neglect case is ongoing, but that can weigh against doing so.
The Role of the Parent’s Attorney
An attorney’s first goal is to prevent a TPR petition from being filed at all. This means showing:
- The parent is engaged in services.
- There is an exception under ASFA.
- The agency has not made adequate diligent efforts.
Once a petition is filed, the attorney must challenge whether the agency has met its burden with clear and convincing evidence, including:
- Proving abandonment, neglect, or other grounds.
- Proving diligent efforts for reunification (if required).
What Does “Diligent Efforts” Mean?
The agency must:
- Arrange quality, consistent visitation (generally bi-weekly in NY).
- Offer services that address the reasons for placement.
- Warn parents about what they must do to regain custody.
- Document every effort clearly.
Failure to show diligent efforts can defeat a TPR for permanent neglect.
Special Notes on Incarceration
- Incarceration alone is NOT a ground to terminate parental rights.
- The agency must help the incarcerated parent find services inside the facility.
- A parent in jail still has a right to visits, unless a court orders otherwise.
- Denying visits may show a lack of diligent efforts.
After a TPR: What About Contact?
A Family Court judge cannot order post-termination contact. However, your attorney can negotiate a conditional surrender — a voluntary termination in exchange for an agreement about post-adoption contact. The court must approve this.
Also, the Domestic Relations Law allows sibling and grandparent visitation after adoption in some cases.
Key Takeaways for Parents
✅ 15 months in care is not a ground for TPR. It only requires the agency to decide whether to file or show an exception.
✅ Being proactive is crucial: Attend services, visit consistently, write to your child if incarcerated, and keep records.
✅ Demand diligent efforts: If the agency fails to do its job, it may not win a TPR.
✅ Get a skilled attorney: Advocacy at every permanency hearing can make or break your family’s future.
Facing a TPR or concerned about your rights? Contact an experienced family law attorney today to protect your relationship with your child.
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