termination of parental rights objectives understanding tpr grounds reviewing tpr petition...

Termination of Parental RightsObjectives

• Understanding TPR Grounds

• Reviewing TPR Petition

• Understanding Manifest Best Interest

• Understanding Least Restrictive Means

• Avoiding Common Issues

• Understanding Post Trial Issues

www.GuardianadLitem.org

April 2014

1

• Clear & Convincing Evidence

• TPR Grounds Exist

• Manifest Best Interests

TPR = Statutory Ground (+) MBI (+) LRM

• Least Restrictive Means

TPR Statutory Grounds §39.806

• Voluntary Surrender

• Conduct towards child and continued involvement threatens life, safety, well-being irrespective of services

• Abandonment

• Incarceration

a

b

c

d

TPR Statutory Grounds§ 39.806

• Case Plan Filed, Approved and Child Continues to be Abused

• Egregious conduct; failure to prevent egregious conduct, that threatens the life, safety, or physical, mental or emotional health of the child or the child’s sibling

e

f

TPR Statutory Grounds § 39.806

• Subjected child to Aggravated Child Abuse, Sexual Battery, Sexual Abuse or Chronic Abuse

• Involuntary TPR of a Sibling

• Committed Murder or Voluntary Manslaughter of a Child

g

h

i


Parent has a history of extensive, abusive, and chronic use of alcohol or a controlled substance.j

Child who tests positive at birth for controlled substance/ alcohol


k


lOn three or more occasions the child or another child of the parent has been placed in out-of-home care, and the conditions that led to the child’s our-of-home placement were caused by the parents.


(New Grounds)

mClear and convincing evidence exists to support a finding that the child was conceived as the result of a sexual battery.

Review the Petition

• Grounds for TPR

• Parents informed of right to counsel

• Child dependent (if required)

Review the TPR Petition with Team


Be sure petition contains facts alleging:

Grounds for Termination of Parental Rights

• Written

• Consent

• Not under fraud or duress

Voluntary Surrender § 39.806(1)(a)

• Department to take custody

a

• No effort to support; AND

• No communication; OR

OR

Abandonment § 39.806(1)(b)

• Marginal efforts at parenting = sufficient to evince a willful rejection of parental obligation

• While being able; AND

b

• Location of parent unknown

• Cannot be ascertained by diligent search

• Within 60 days

Abandonment § 39.806(1)(b) Continued

Incarceration may only be a FACTOR to consider “together with other facts” including:

• Multiple and habitual

• Heinous nature of crime

• Long incarceration foreseeable

Abandonment § 39.806(1)(b) Continued

• Provision of services; AND

• Harm; AND

• Do not need dependency adjudication or 9 months

Conduct towards child and continued involvement threatens

life, safety, well-being despite services § 39.806(1)(c)

• Futility – no reasonable basis to believe parent would improve

c

• Significant portion of child’s minority § 39.806(1)(d)1; OR

• Certain crimes § 39.806(1)(d)2; OR

• Continued parent child relationship harmful to child § 39.806(1)(d)3

Incarceration § 39.806(1)(d) d

Significant portion of child’s minority:

– Court considers child’s age and the child’s need for a permanent and stable home

– The period of time begins on the date that the parent enters into incarceration


Continued parent child relationship harmful to child. When determining harm the court considers:

– Child’s age

– Parent / child relationship

– Nature of parent’s current and past provision for the child (developmental, cognitive, psychological, physical)

– Parents history of criminal behavior (frequency of incarceration etc.)

– Any other factors the court deems relevant


• Adjudicated dependent; AND

• Case Plan filed; AND

• 9 or more months

• Failure to substantially comply; OR

• Material Breach § 39.806 (1)(e)2

Child continues to be abused, neglected, or abandoned by the

parents. § 39.806(1)(e) e

• Department’s failure to make reasonable efforts to reunify

Failure cannot be because of:

• Parent’s lack of financial resources

• Egregious means deplorable, flagrant, or outrageous. Can be only once if such intensity, magnitude, or severity as to endanger the life of the child.

Definitions

• Sibling means another child who resides with or is cared for by the parent regardless of whether the child is related

f

Egregious conduct, or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or

physical, mental or emotional health of the child or the child’s sibling § 39.806(1)(f)

f

• Knew of previous abuse and did nothing

Egregious Conduct

• Must have hurt the child or put the child at imminent risk of harm

• Commit or failed to prevent

Failure to Protect Can be Enough

Egregious Conduct

Egregious Conduct Towards Sibling Nexus Required

Nexus is required between the abuse of one child and the prospective abuse of a sibling

Nexus

•A predictive relationship between the abuse of one child and the prospective abuse of another child.

•It is also known by the phrase “substantial risk of significant harm” – totality of the circumstances

Nexus

Must “connect the dots” between the bad behavior of the parent and the effect on the

child

Nexus

Always be prepared to prove the nexus element

When presenting a nexus case, emphasize:

•Similarity between prior conduct and the circumstances of the unabused child;

•Similarities between the abused child and the unabused child such as age, relationship, and gender;

• Close proximity in time between prior conduct and the circumstances of the unabused child;

When presenting a nexus case, emphasize:

•Treatment the parent received or didn’t receive after the prior conduct and any relapses the parent has experienced;

•All circumstances that have not changed; and

• Expert testimony.

Aggravated child abuse; sexual battery or sexual abuse; or chronic

abuse § 39.806(1)(g)

• Aggravated child abuse defined in § 827.03

• Sexual battery or sexual abuse defined in § 39.01

• Chronic abuse defined in In re D.A. D.

“long duration or frequent occurrence” “always present or encountered” and “being such habitually”

g

Committed murder or voluntary manslaughter of a child § 39.806(1)(h)

h

• Prior involuntary TPR of sibling

• Substantial risk of significant harm

Involuntary TPR of sibling § 39.806(1)(i)i

•History of Drug / Alcohol Use

•Incapable of Caring for the Child

Chronic Use of Alcohol or Drugs§ 39.806(1)(j)J

•Refused / Failed to Complete Treatment for the 3 Years Prior to TPR petition

•Child Tests Positive at Birth

•Has same biological mom of another dependent child – after finding of harm due to exposure

Mother with Prior Dependent Child Gives Birth to Child Who Tests Positive at Birth§ 39.806(1)(k)K

•3 Times a Child or Another Child of the Parent Placed in Out-of-Home care

• Conditions that Led to the Child’s Out-of-Home Placement were cause by the Parents

Child placed 3 or more times in out-of-home care 39.806(1)(l)L

Guilty plea or conviction of unlawful sexual battery is conclusive proof that the child was conceived in

this manner

Clear and convincing evidence exists to support a finding that the

child was conceived as the result of a sexual battery. §39.801(m)

M

• Even if a two (or more) parent termination, be sure that evidence supports a TPR as to each and every parent

Single Parent Terminations

• Final order should contain findings to support single parent termination

• Request that the court make findings under Section 39.811(6) as to each parent in all cases, if it can be supported by record/evidence

Single Parent Terminations

Best Practice

• Review Single Parent TPR training available on the website

www.Guardianadlitem.org

Manifest Best Interest

• Court must make specific finding that TPR is in the child’s manifest best interest § 39.810(1)-(11)

Manifest Best Interest (MBI)

• The final judgment is subject to reversal if no MBI on the record

• Each child individually

• Review MBI questions with GAL

• If consent by default still need MBI testimony

Manifest Best Interest (MBI)

• Not a comparison between placement and parents

1. The availability of a suitable relative exists who is not willing to adopt but who is willing to provide a permanent placement § 39.810(1)

2. The ability and disposition of the parent or parents to provide the child with food, clothing, medical care … and other material needs of the child § 39.810(2)


3. The capacity of the parent or parents to care for the child …§ 39.810(3)


4. The present …needs of the child and … future needs§ 39.810(4)

5. [E]motional ties …harm to the child …from the termination of parental rights ... §39.810(5)

6. The likelihood of an older child remaining in long-term foster care § 39.810(6)


7. Bond between child and “parental substitute” §39.810(7)

8. The length of time that the child has lived in placement and desire for continuity § 39.810(8)

9. The depth of the relationship existing between the child and the present custodian§ 39.810(9)


10. Child’s wishes § 39.810(10)

11. Guardian ad Litem recommendations§ 39.810(11)

Least Restrictive Means


Padgett Test

• Measures short of termination should be utilized if … can permit the safe re-establishment of the parent-child bond

• Good faith effort to rehabilitate the parent and reunite the family


Padgett Test

“Relative Issue” goes only to MBI not Least Restrictive Means

Most Common Reversals

• Therapist testimony not provided

Insufficient evidence of harm

• GAL testimony insufficient

• Evidence not Clear and Convincing

Most Common Reversals

• Mental Illness

Insufficient Evidence of Provision of Services

• Incarceration Cases

Common Issues

• Substance abuse without harm not enough

Proving Harm

• Bad acts alone are not enough

Common Issues

• Medical problems

Proving Harm (Continued)

• GAL testimony (improvements since removal)

• Developmental delays

• Educational problems

• Therapist testimony

Common IssuesDomestic Violence

• Child is a witness of physical or verbal abuse

• May not have to show that child witnessed the D.V – only that the child was affected by D.V.

• GuardianadLitem.org for more Domestic Violence Resources

• Child is aware of DV

Common IssuesHearsay

• If it is reliable and trustworthy + child testifies (subject to cross-examination), or

• See Evidence Training on www.GuardianadLitem.org for full explanation

• If it is reliable and trustworthy + child does not testify + there is other corroborating evidence

Post Trial Issues

• Grounds

• Timely submission of final judgment

• Accuracy of final judgment


• Least Restrictive Means

• Findings as to Single Parent

Appeals

Notify Appellate Team of Appeals

TPR Training Materials

Go to the P Drive to find

• TPR Training Power Point Presentation

• TPR Checklist

• TPR Evidence Chart

• MBI Chart

TPR Training Materials

GuardianadLitem.org

Resources By Topic

Conferences & Training

GuardianadLitem.org

• Searchable Case Summaries

• Sign up to Receive Legal Briefs Newsletter

• Review New Attorney Training for Practice Aids & Checklists

• Dependency Practice Manual

Hillary S. Kambour, Esq.Director of Legal TrainingAppellate CounselStatewide Office of the Guardian ad Litem [email protected]

termination of parental rights objectives understanding tpr grounds reviewing tpr petition...

Documents