The adoption journey can be long and complicated, and it can be full of surprises. For example, you might meet with an expectant mom, connect, and make an adoption plan for her baby once the child is born. As the weeks pass, you get to know her and begin to feel excited — and then you hear that she has gone to jail and will be there on her due date. As you process the information and figure out how best to help her, you have to be wondering — can you adopt if the biological parent is incarcerated?
The short answer: yes. It is possible to adopt a child in Arkansas when a biological parent is incarcerated, but several specific legal requirements must be satisfied before the adoption can proceed. The court’s priority in every adoption case in Arkansas, including those involving an incarcerated parent, is the child’s best interests. Adoption cannot legally move forward until the parental rights of the incarcerated parent are voluntarily surrendered or involuntarily terminated. It’s essential that the process rigorously follows state law. Don’t even think about trying to do this without an experienced adoption lawyer.
Parental rights and adoption law in Arkansas
In Arkansas, a biological parent’s consent or lack of parental rights is central to whether an adoption can happen, no matter what the parent’s circumstances may be. Parental rights are a constitutional safeguard: they cannot be terminated without due process. While the fact that a parent is incarcerated is likely to be a factor in the decision, it does not automatically terminate parental rights or make a child available for adoption.
For an adoption to proceed, one of the following must occur:
- The biological parent voluntarily consents to the adoption.
- Their parental rights are legally terminated by the court.
Incarceration by itself does not satisfy either condition.
Voluntary consent
In the hypothetical example we started with, the mom found herself incarcerated after the adoption plan was already in place. She plans to consent, and the circumstances may not change the outcome at all. If we think of another example in which the dad is the one in prison, he may or may not be willing to consent, but he must still be notified and asked for his consent.
Whether it’s the mom or the dad, the following requirements must be met:
- Consent must be in writing. A written document signed by the parent is required.
- Consent must be voluntary and informed. The incarcerated parent must understand what they are signing. This may require a translator. It’s also essential that the person who explains the consent form must not try to coerce the birth parent into signing.
- Consent must be witnessed or acknowledged. Depending on the circumstances, the consent may need to be notarized or acknowledged before a judge or court official.
- Time limitations apply. The details vary, but written consent must be completed within the required time frame.
- Legal counsel or explanation of rights is often necessary to ensure the parent understands the consequences of his or her decision.
In practice, this means that an incarcerated parent could sign a consent form — often facilitated through a prison official, attorney, or judge — that legally makes the child eligible for adoption. It is especially crucial that the consent be truly voluntary and that no undue influence is exerted under the stressful conditions of incarceration.
Involuntary termination of parental rights
If an incarcerated parent does not consent to the adoption, the prospective adoptive parents may petition the court for involuntary termination of parental rights. In Arkansas, the court may terminate parental rights for a number of reasons:
- The parent has abandoned the child or failed to provide for the child’s care, which for an unborn child would probably mean the father did not care for the expectant mom.
- The parent has been unfit, neglectful, or unable to properly care for the child, which could mean the expectant mom’s behavior has endangered the child.
- There is ongoing harm or risk to the child.
Incarceration can be a factor a court considers in a termination case (especially if the parent will be absent for an extended period), but incarceration alone is generally not enough. The petitioning party must show that the parent’s conduct meets one of the legally recognized grounds for termination and that termination is in the child’s best interests.
For birth dads, one common reason for termination of rights is that he is not involved in the child’s life at all.
Other factors
The law is clear. Whether it is the mom or the dad who is incarcerated, it is possible to adopt when the biological parent is incarcerated. Make sure that you consider the other factors. If it is the mom who is in this position, she may need extra support to ensure her health and the health of the child. If it is the father, any support he provided for the mom may be missing, and again she may need some additional help and support. With either parent in this position, you may need to think more about the terms for visitation or ongoing contact.
A good adoption attorney will help you sort things out. Heimer Law specializes in adoption.
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