The general grounds for termination of parental rights in all states are as follows. Abandonment is a prime case of abandonment can be established after six months of conscious disregard of any form of parental obligations by a parent, including support, maintenance, love and care. The conduct must be intentional and normally must involve a lack of support plus a failure to communicate. Neglect must be serious and continuing and involve serious mental, physical or moral harm to the child. Poverty or disreputable lifestyle, absent such harm, is not adequate grounds for termination. Abuse requires serious physical or emotional harm, or sexual misconduct. A likelihood of future abuse must also be established, since termination is not intended to be a punishment to the biological parent. A mental illness, deficiency, or substance abuse problem must result in an inability to parent, and must continue for a long and indeterminate period of time in order to be viable grounds to terminate parental rights. In addition to demonstrating a conviction and current incarceration, most states laws require a showing that the crime demonstrates unfitness or that the sentence be of an exceedingly long length. In evaluating the length of the sentence, the court will balance the prior parental relationship existing between the parent and the child, the age of the child, the potential of the parent to care for the child post-incarceration, and the potential for contact with the child during incarceration.

Parental rights can also be severed predicated upon a valid relinquishment of the rights to a child. The rights inheritance and support continue until finalization of the adoption. If a child is in out-of-home care, termination of parental rights can be based upon nine months of willful refusal or substantial neglect by a biological parent, or eighteen months of the demonstrated inability to remedy the problem by the biological parent with a substantial likelihood that the situation will continue. In these circumstances, if a plan for adoption exists, termination of parental rights may be considered.

The United States Supreme Court has recognized in several cases that a father's constitutional right to raise his child is not absolute. The Courts have held that a father's relationship with his child is entitled to constitutional protection only after he establishes a substantial and committed relationship with his child. The standards applied by state courts in determining whether they will terminate an unwed biological father's rights are: 1) whether his actions constitute abandonment of the child, 2) whether it is in the best interests of the child that the father's parental rights be terminated, and 3) whether the nature of the relationship between the father and his child is worthy of constitutional protection.

The Courts have consistently held that there is a presumptive preference for biological parents to assume the custody and care of children and that the state must show a sufficient cause for any intervention with this presumption. In the case of illegitimate children, the state has an interest in placing children in stable homes while fathers have an interest in parenting their children.

The Courts have attempted to balance these competing interests, and courts have held that a state does not violate a father's right to due process if it shows a compelling reason to terminate his parental rights.

In Pena v. Mattox, the biological father argued that his due process rights were violated when his parental rights were terminated by the adoption of his child.

The mother had given birth to the child while the father was incarcerated for statutory rape. As part of his sentence, he was ordered to have no contact with the mother or her family. As a result, he was not informed of the birth of the child and did not consent to the adoption of the child. However, the court held that his due process rights were not violated when the child was adopted without his consent because he failed to take advantage of steps available to him to form a relationship with his child. Accordingly, if a father fails to develop a substantial relationship with his child, due process does not demand a hearing prior to the termination...

The Courts have defined abandoned as a situation in which the parent, although able to, makes no provision for the child's support and makes no effort to communicate with the child. These actions are sufficient to evince a willful rejection of parental obligations. In Doe v. Roe, a biological father claimed that the court violated his constitutional rights when it permitted the adoption of his child without his consent. However, an examination of the facts revealed that the father had urged the mother to have an abortion because he was not ready to commit to marriage, felt financial pressure, and was troubled by the whole idea of marriage. After the adoption papers were signed, the father proposed marriage that wanted to keep the baby. The trial court determined that he had abandoned the child and therefore his consent to the adoption was not necessary. The Supreme Court of Florida upheld the trial court's decision, reiterating that a court may examine a father's prebirth actions in determining whether he has abandoned the child.
The Courts generally will not permit termination of the rights of a father who comes forward and demonstrates a full commitment to his parental responsibilities. In Adoption of Michael H., the biological father suggested that the unwed biological mother have an abortion, which she refused and instead made adoption arrangements. During the pregnancy, the father was arrested for aggravated assault on the mother, but agreed to the planned adoption of the child. After the child was born, the adoptive parents and the mother learned that the father had decided not to place the child up for adoption. The Supreme Court of California scrutinized the father's actions prior to the birth of the child, and awarded custody to the adoptive parents.

Some courts allow a finding of abandonment on the basis of a father's prebirth conduct, considering such factors as the father's attitude towards the pregnancy and towards any arrangements for the subsequent placement of the child. Many courts also apply the "best interests of the child" standard, often resulting in varying decisions with outcomes based on justification of the child's interests. The factors courts consider in analyzing what is in the best interests of the child are as follows: 1) the length of time the child has been away from the biological parent; 2) the age of the child when care was assumed by the third party; 3) the possible emotional effect on the child of a change of custody; 4) the period of time which elapsed before the parent sought to reclaim the child; 5) the nature and strength of the ties between the child and the third party custodian; 6) the intensity and genuineness of the parent's desire to have the child; and 7) the stability and certainty as to the child's future in the custody of the parent.

California Courts & Adoption Law

California courts utilize the best interests of the child standard by considering whether the biological father presents a substantial risk of detriment to the child's well-being.

Other California courts have argued that the best interests of the child standard should no longer be the primary consideration in the determination of whether the court should terminate an unwed biological father's rights. The discrepancy regarding the applicable standard even within the same jurisdiction exemplifies the unpredictability involved in these decisions. The various best interests of the child standards and their varied application further demonstrate the great degree of uncertainty plaguing adoptions involving an unwed biological father and also illustrate the urgent need for resolution.

In response to the uncertainty regarding the rights and responsibilities of unwed biological fathers, several states enacted legislation aimed specifically at clarifying these issues. California passed legislation that specifies the particular instances when and the precise parties who may bring an action to determine whether a father and child relationship exists. The California Family Code provides that a man presumed to be the child's biological father may bring an action as follows: 1) at any time for the purpose of declaring the existence of the father and child relationship; 2) for the purpose of declaring the nonexistence of the father and child relationship only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.

Reacting in part to what happened in the DeBoer case, the California legislature proposed and enacted changes to California's adoption laws. None of these legislative changes, however, directly addressed the issue of biological fathers who seek to assert their parental rights upon finding out about their children months, or even years, after adoption proceedings have begun or…