TERMINATION OF THE PARENT CHILD LEGAL RELATIONSHIP

Termination HearingTermination Hearing

Purpose The purpose is to free the child for adoption.

Timing Must be held within 120 days of the motion for termination’s filing.

Evidence considered The rules of evidence apply, including hearsay, and the court considers

the testimony of the witnesses and any exhibits. The court cannot consider polygraph examination, or the opinion of an

expert who bases an opinion on polygraph evidence. In re M.M., 215 P.3d 1237 (Colo. App. 2009).

Standard of Proof Clear and convincing evidence ICWA cases require proof beyond a reasonable doubt

Statutory Grounds for Statutory Grounds for TerminationTermination

Most common: failure to complete treatment plan Requires 4 elements:

Child was adjudicated dependent or neglected The Court ordered treatment plan failed Parent is unfit Parent’s conduct or condition is unlikely to change

within a reasonable time Others: unfitness, abandonment for 6 months

or more

Termination with No Termination with No Treatment PlanTreatment Plan Grounds, C.R.S. §19-3-508 (1)(e)(1)

At disposition, the court must order a treatment plan unless it finds by clear and convincing evidence that no treatment plan can be developed to address the parent’s unfitness.

Procedure If the court makes a finding that no treatment plan is devisable, then the court

must hold a permanency hearing within 30 days unless a termination motion is filed.

The court can hold dispositional hearing and termination hearing at the same time.

The court cannot hold termination hearing if there was no dispositional hearing.

Defenses? None of the grounds for failing to provide a treatment plan are mandatory. In re E.IC, 958 P.2d 511 (Colo. App. 1998), the court found that it may be

proper for the court to adopt a treatment plan for a parent who will be incarcerated for at least 6 years given factors such as the age of the child and supportive family members.

Termination ProcessTermination Process

Filing of motion The Department or GAL must file a separate

motion for termination Must be filed at least 30 days before the

termination hearing Pretrial hearing Setting a hearing

EPP cases: must set a hearing on the motion within 120 days of filing the motion unless good cause is shown for an extension.

Trial management: witness lists, subpoenas Options/relinquishment counseling

AdmissionsAdmissions

Relinquishment or confessing the motion?

Filing a motion or making oral record Appeals

Experts- For the DefenseExperts- For the Defense

When? File a motion to the court requesting the appointment of, and payment

for, an independent expert after the motion for termination has been filed.

If the expert will be testifying, his or her report must be made available to all parties at least 15 days before trial.  

Who? Paying for them

Indigent respondents are entitled to one court appointed expert at state expense If the parent is dissatisfied with the expert’s report, he or she cannot

seek another expert at state expense. What type? How to use them

Good Experts for the Good Experts for the DefenseDefense

DepositionsDepositions

Who to depose? Careful decisions about who to depose need to be made.

Rules governing: Depositions are governed by Colorado Rules of Civil Procedure

R. 26, 27, 30, 31. How to use deposition?

Depositions can be used for formulating a theory of defense, preparing for cross examination, and impeachment material.

Paying for it: There is a disagreement regarding who will pay for them and

whether they are permitted under the CJDs. An application has to be made to the court to approve the expense.

Getting Rady for TrialGetting Rady for Trial

Discovery Trial notebooks Pretrial motions Witness selection Client communication and preparation Preparation and practice

Getting Ready for TrialGetting Ready for Trial, continued

Decision making between lawyer and client

Rules of professional conduct Objectives Method Emotional aspects

TrialTrial

What if client fails to appear? If the client fails to appear on the day of

the termination trial, the court will proceed by default. The Department may choose to proceed with an offer of proof, submit the termination report written by the caseworker, and/or call the caseworker to the stand to testify.

Parent as Witness- Preparation Parent as Witness- Preparation for Direct Examinationfor Direct Examination What to ask:

Walk the client through a basic social history, including early family life, adolescent development, significant life occurrences, and overcoming hardships.

Ask about motivation, parent-child relationship, and parenting experiences.

How to proceed: Emphasize the client’s parenting ability and ability for

change. The goal is to portray for the court the treatment plan through the client’s eyes, and her compliance and rehabilitation.

Be as specific as possible, and use examples that may have outside verification as well.

Other Defense WitnessesOther Defense Witnesses

Who? Those who have experience with the client

and can attest to client’s strengths and ability to appropriately parent

Service providers who can talk about client’s motivation and success in treatment

What purpose? Background checks for non-professional

witnesses Limit inquiry?

Successful DefensesSuccessful Defenses

Cause of action Proof Caselaw Impact

ICWAICWA

Burden of proof Proof beyond a reasonable doubt

Witnesses The expert does not need to be qualified

in cultural practices or affairs unless the parent’s deficiencies have a cultural component. People in Interest of A.N.W., 976 P.2d 365 (Colo. App.1999).

Required findings

The DecisionThe Decision

At the end of the trial, and the court delivers the findings and order from the bench

Always a bad moment How to prepare your client What to do while the court is reciting the

decision  Afterwards: Goodbye visits and memory

books

AppealsAppeals

Timeline C.A. R. Rule 3.4requires that a notice of appeal must be

submitted to the court of appeals within 21 days of the order terminating parental rights.

The record for appeal is due 40 days after filing the notice of appeal.

Requirements The parent must sign the notice of appeal, or counsel must

state that the parent has authorized the filing of the appeal. Elements Which attorney?

Typically, trial counsel handle appeals by their clients. There may be designated counsel in your county available as appellate attorneys.

Discussion Questions:

Are we, at times, unconsciously providing a form of “wink wink” advocacy  – where we signal to the court that although we are making this request on behalf of the client, we do not really think the request should be granted?

Are we using all the skills we have to advocate for all of our clients, or are we saving or holding back arguments or advocacy for the “really good” clients, who will be worth it?

Discussion Questions:

If we make the same arguments over and over, how will the court know when we REALLY mean it this time?

Are we telling each client’s story in a fair, empathetic, persuasive manner?

What success stories can we share with each other? What triumphs can we share? What tips do we have for each other?