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Asad Rahman
Asad Rahman, Lawyer
Category: Family Law
Satisfied Customers: 1739
Experience:  Practicing Attorney with 10 years experience
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What does it take to sever parental rights from a mentally

Customer Question

What does it take to sever parental rights from a mentally incapacitated parent in Missouri?
The parent shot themselves in the head with a 45 caliber pistol...but lived through it. The injured parent has very, very limited mental capacity and cannot care for themselves and hasn't had contact with the 6 year child since they were 3 months old.
The mother of the incapacitated party has paid child support out of the parent's disability income.
Submitted: 11 months ago.
Category: Family Law
Expert:  Asad Rahman replied 11 months ago.

Generally, Missouri courts will use a two-pronged analysis to determine if a parent's rights should be terminated. First, since a parent-child relationship is presumed to be beneficial for the child, the ground stated for termination of parental rights must be proven "by clear, cogent and convincing evidence."

However, just meeting this legal standard alone is not enough for the court to terminate a parent's rights. Secondly, the termination of parental rights must also be found to be in the best interests of the child by a "preponderance of the evidence."

In Missouri there are three ways that a parent's rights may be terminated:

  1. The parent consents to voluntarily terminate his or her rights
  2. A termination petition is mandatorily filed
  3. A termination petition is discretionarily filed

The first situation is self-explanatory. There are only certain situations in which a termination petition must or can be filed, many of which have to do with child neglect or abuse allegations , including:

  • A court determines a child to be an abandoned infant
  • The child has been abandoned
  • The child has been in foster care for a minimum of 15 of the last 22 months
  • The child was conceived and born as a result of a forcible rape
  • The parent aided, abetted, attempted, conspired to or committed murder another of his or her children
  • The parent committed a felony assault against the child or another of the parent's children
  • The parent commits certain types of abuse against the child
  • The parent is guilty of committing a sexual offense or incest against the child or another of the parent's children

It should be noted that there are certain situations or exceptions to the termination of parental rights. Meaning that a parent's rights do not need to be terminated automatically, including if the child is living with a relative or if the termination of parental rights would not be in the child's best interest.

There are other situations in which a person's parental rights may be terminated. Speak with a family law attorney if you are facing termination of your parental rights or child neglect or abuse allegations.

Expert:  Asad Rahman replied 11 months ago.

Missouri also allows for termination when a parent no longer has the mental capacity.

Customer: replied 11 months ago.
Are there any cases in Missouri (similar to this one) that supports the severing of parental rights?
Customer: replied 11 months ago.
Did you get my last question?
Expert:  Asad Rahman replied 11 months ago.

Yea Missouri law statute V.A.M.S. 211.477 allows for the termination if the parent is incapacitated. You have to file for it in the court where the custody order came from.

Customer: replied 11 months ago.
I'm having trouble finding the "incapacitated" language in that Statute, can you help me?
Customer: replied 11 months ago.
I think I found what you are referencing, but it appears to be guidelines for juvenile officers. Does the same statute apply if the state is not involved?
Expert:  Asad Rahman replied 11 months ago.

Look at paragraph 5 about mental capacity http://www.moga.mo.gov/mostatutes/stathtml/21100004471.html

Expert:  Asad Rahman replied 11 months ago.

(a) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;

Customer: replied 11 months ago.
Is this statute limited to juvenile court "...-juvenile court may terminate parental rights..."? That's in the title of the statute,
Customer: replied 11 months ago.
Can see statute be applied outside of the state system?
Expert:  Asad Rahman replied 11 months ago.

No they are talking about a juvenile officer of the court. You can do it with a private attorney.

Expert:  Asad Rahman replied 11 months ago.

It looks to me that Missouri requires that you go through the juvenile courts to do this. I will tell you though I am not experienced in Missouri law but I do have considerable experience in family law. However, my reading of the statute that mental incapacity is a basis to terminating the rights.

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