Termination of Parental Rights Objectives Understanding TPR Grounds Reviewing TPR Petition Understanding Manifest Best Interest Understanding Least Restrictive Means Avoiding Common Issues Understanding Post Trial Issues April

Clear & Convincing Evidence TPR Grounds Exist Manifest Best Interests TPR = Statutory Ground (+) MBI (+) LRM Least Restrictive Means

TPR Statutory Grounds § 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§ 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 § 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

TPR Statutory Grounds § 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 TPR Statutory Grounds § k

l On 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.

TPR Statutory Grounds § (New Grounds) m Clear 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 Manifest Best Interests Be sure petition contains facts alleging:

Grounds for Termination of Parental Rights

Written Consent Not under fraud or duress Voluntary Surrender § (1)(a) Department to take custody a

No effort to support; AND No communication; OR OR Abandonment § (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 § (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 § (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 § (1)(c) Futility – no reasonable basis to believe parent would improve c

Significant portion of child’s minority § (1)(d)1; OR Certain crimes § (1)(d)2; OR Continued parent child relationship harmful to child § (1)(d)3 Incarceration § (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 Incarceration § (1)(d) d

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 Incarceration § (1)(d) d

Adjudicated dependent; AND Case Plan filed; AND 9 or more months Failure to substantially comply; OR Material Breach § (1)(e)2 Child continues to be abused, neglected, or abandoned by the parents. § (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 § (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 § (1)(g) Aggravated child abuse defined in § Sexual battery or sexual abuse defined in § 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 § (1)(h) h

Prior involuntary TPR of sibling Substantial risk of significant harm Involuntary TPR of sibling § (1)(i) i

History of Drug / Alcohol Use Incapable of Caring for the Child Chronic Use of Alcohol or Drugs§ (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§ (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 (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 (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

Manifest Best Interest

Court must make specific finding that TPR is in the child’s manifest best interest § (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 § (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 § (2) Manifest Best Interest

3. The capacity of the parent or parents to care for the child …§ (3) Manifest Best Interest 4. The present …needs of the child and … future needs§ (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 § (6) Manifest Best Interest 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 § (8)

9. The depth of the relationship existing between the child and the present custodian§ (9) Manifest Best Interest 10. Child’s wishes § (10) 11. Guardian ad Litem recommendations§ (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

Least Restrictive Means 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 Issues Domestic 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 Issues Hearsay If it is reliable and trustworthy + child testifies (subject to cross-examination), or See Evidence Training on 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 Manifest Best Interests 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 Training Appellate Counsel Statewide Office of the Guardian ad Litem Program