PART VI. 
TERMINATION OF PARENTAL RIGHTS



 



§571-61  Termination of parental rights;
petition.  (a)  Relinquishment.  The parents or either parent or the
surviving parent who desire to relinquish parental rights to any natural or
adopted child and thus make the child available for adoption or readoption, may
petition the family court of the circuit in which they or he or she resides, or
of the circuit in which the child resides, or was born, for the entry of a
judgment of termination of parental rights.  The petition shall be verified and
shall be substantially in such form as may be prescribed by the judge or senior
judge of the family court.  The petition may be filed at any time following the
mother's sixth month of pregnancy; provided that no judgment may be entered
upon a petition concerning an unborn child until after the birth of the child
and in respect to a legal parent or parents until the petitioner or petitioners
have filed in the termination proceeding a written reaffirmation of their
desires as expressed in the petition or in respect to a legal parent or parents
until the petitioner or petitioners have been given not less than ten days'
notice of a proposal for the entry of judgment and an opportunity to be heard
in connection with such proposal.



(b)  Involuntary termination.



(1)  The family courts may terminate the parental
rights in respect to any child as to any legal parent:



(A)  Who has deserted the child without
affording means of identification for a period of at least ninety days;



(B)  Who has voluntarily surrendered the care
and custody of the child to another for a period of at least two years;



(C)  Who, when the child is in the custody of
another, has failed to communicate with the child when able to do so for a
period of at least one year;



(D)  Who, when the child is in the custody of
another, has failed to provide for care and support of the child when able to
do so for a period of at least one year;



(E)  Whose child has been removed from the
parent's physical custody pursuant to legally authorized judicial action under
section 571-11(9), and who is found to be unable to provide now and in the
foreseeable future the care necessary for the well-being of the child;



(F)  Who is found by the court to be mentally
ill or mentally retarded and incapacitated from giving consent to the adoption
of or from providing now and in the foreseeable future the care necessary for
the well-being of the child;



(G)  Who is found not to be the child's natural
or adoptive father.



(2)  The family courts may terminate the parental
rights in respect to any minor of any natural but not legal father who is an
adjudicated, presumed or concerned father under chapter 578, or who is named as
the father on the child's birth certificate:



(A)  Who falls within subparagraph (A), (B),
(C), (D), (E), or (F) of paragraph (1);



(B)  Whose child is sought to be adopted by the
child's stepfather and the stepfather has lived with the child and the child's
legal mother for a period of at least one year;



(C)  Who is only a concerned father who has
failed to file a petition for the adoption of the child or whose petition for
the adoption of the child has been denied; or



(D)  Who is found to be an unfit or improper
parent or to be financially or otherwise unable to give the child a proper home
and education.



(3)  In respect to any proceedings under paragraphs
(1) and (2), the authority to terminate parental rights may be exercised by the
court only when a verified petition, substantially in the form above
prescribed, has been filed by some responsible adult person on behalf of the
child in the family court of the circuit in which the parent resides or the
child resides or was born and the court has conducted a hearing of the
petition.  A copy of the petition, together with notice of the time and place
of the hearing thereof, shall be personally served at least twenty days prior
to the hearing upon the parent whose rights are sought to be terminated.  If
personal service cannot be effected within the State, service of the notice may
be made as provided in section 634-23 or 634-24.



(4)  The family courts may terminate the parental
rights in respect to any child as to any natural father who is not the child's
legal, adjudicated, presumed or concerned father under chapter 578.



Such authority may be exercised under this
chapter only when a verified petition, substantially in the form above
prescribed, has been filed by some responsible adult person on behalf of the
child in the family court of the circuit in which the parent resides or the
child resides or was born, and the court has conducted a hearing of the
petition.



If the mother of the child files with the
petition an affidavit representing that the identity or whereabouts of the
child's father is unknown to her or not ascertainable by her or that other good
cause exists why notice cannot or should not be given to the father, the court
shall conduct a hearing to determine whether notice is required.



If the court finds that good cause exists why
notice cannot or should not be given to the child's father, and that the father
is neither the legal nor adjudicated nor presumed father of the child, nor has
he demonstrated a reasonable degree of interest, concern, or responsibility as
to the existence or welfare of the child, the court may enter an order
authorizing the termination of the father's parental rights and the subsequent
adoption of the child without notice to the father. [L 1965, c 232, pt of §1;
Supp, §333-29; HRS §571-61; am L 1970, c 205, §2; am L 1971, c 46, §1; am L
1973, c 211, §1(h); am L 1974, c 74, §1; am L 1976, c 85, §14; am L 1980, c 55,
§1; am L 1982, c 49, §1; am L 1983, c 171, §4; am L 1993, c 160, §2]



 



Case Notes



 



  No constitutional right of minor mother was violated when
during her absence from hearing she was represented by guardian ad litem.  52
H. 395, 477 P.2d 780.



  In subsection (b)(1)(D):  "Care and support" refers
exclusively to financial support; involuntary termination may not occur absent
finding of purpose to abdicate parental rights; one year period does not refer
solely to the year immediately preceding petition's filing; not
unconstitutionally vague.  64 H. 85, 637 P.2d 760.



  "Foreseeable future" means three years from the
filing date of the petition for termination of parental rights.  8 H. App. 66,
793 P.2d 669.



  Record of child protective services case can be considered in
a case brought under this section.  8 H. App. 161, 795 P.2d 294.



  Father's right to custody was terminated and children were
placed in the custody of foster parents.  8 H. App. 377, 805 P.2d 1215.



  Nothing in subsection (a) or chapter 587 indicates that when
the department of human services and the affected parents settle a termination
proceeding, they may do so only by resorting to a subsection (a) proceeding. 
90 H. 200 (App.), 978 P.2d 166.



  Trial court erred in applying clear and convincing evidence
standard of proof in deciding whether natural father was an unfit parent in a
petition by grandparents for guardianship of the person of their grandson, as a
guardianship of the person of a minor is neither absolute nor irrevocable, and
the heightened standard of proof attendant upon those attributes of a
termination of parental rights did not apply.  106 H. 75 (App.), 101 P.3d 684.