1. Termination of Parental Rights and the Developmentally Delayed Parent
Hillary S. Kambour, Esq.
So this training will acquaint you with the various issues that are involved in cases where a developmentally delayed parent in being tpr’d. Much of what we will talk about applies equally to parents with mental health problems as well.

2. What is Unique? Rarely abuse, usually neglect cases
Often loving relationship with the children
Parent is often very sympathetic
So watch for medical neglect, untreated developmental delays in the children. Very often there is a loving relationship with the children. The parent is child-like so they are often attentive and caring. These children are often extremely attached because of that relationship. The parent is without culpability. They are good people with problems they can’t do anything about that effect their children. This combined with the strong relationship make these very difficult cases for judges and for GALs.

3. Relatives
If there is an appropriate relative who is willing to care for parent AND child, there is no basis for termination
If there is an appropriate relative who wants to adopt, then termination is the correct goal
We probably don’t see these cases at all. They just don’t come in. But please notice that I underlined “appropriate.” Be careful and examine the relatives knowledge and failure to act prior to removal. If the MGM saw the children all the time, then she would have noticed the neglect they were suffering. If she did nothing to protect the children (testifies that Mom was doing great, e.g.) then she is not an appropriate caretaker.
For some reason, defense attorneys love to argue permanent guardianship is the “least restrictive means” in these cases. Remember LRM has NOTHING to do with relatives. It is simply the constitutional strict scrutiny test that is applied when a fundamental right (the right to parent) is involved. In these cases, the state has a compelling interest in protecting children and the fundamental right is protected when the parent is offered (in the ordinary case) a case plan with services designed to rehabilitate and reunify them with the children. If the relative wants to adopt, the children are entitled to the most permanent goal option (that is adoption) despite whatever relationship they continue to have with the Mother. Defense attorneys seize on the sympathetic feelings toward the parent and argue essentially that because the children want to continue to see the Mother and the Mother is loving (they will go on and on about how there is no physical abuse) they should just stay in permanent guardianship and not punish the Mother with a tpr. REMEMBER if there is a ground to tpr and someone to adopt, the legislature has said that unless there are compelling reasons not to, the goal of the case should be adoption no matter how badly that may emotionally harm the parent. Its is not about the parent at that point. REMEMBER there can be post-termination contact between parent/child if its appropriate for the child. When defense argues that the case law says must try to re-establish parent-child bond, its doesn’t mean love, it means ability to parent the child safely. The bond can continue post-termination.

4. Ensure Services Proper diagnosis Services designed to address problem
Read evaluations for recommendations
Please make sure the parent is properly diagnosed. How can the state fix the problem if it hasn’t been articulated? This may mean a psych eval with an I.Q. test or psychiatric eval is psychologist suspects mental illness. Once there is a diagnosis, then there must be services that are designed to address the problem. Make sure case plans have all available services for the parent. Again, if there is a service out there that could rehabilitate the parent, tpr will fail if it wasn’t provided. ALSO, it may take more than a simple referral. The parent may require special assistance in understanding and complying with the service. Often evaluators (psychologists, mental health providers, individual therapists and psychiatrists will make recommendations for further services. PLEASE make sure these are a part of amended case plan (best practice to ensure service is provided as opposed to “follow all recommendations therefrom” language.

5. Section (1)(c)
Parent continues to engage in conduct that threatens the life, safety, well-being, or physical, mental, or emotional health of the child, irrespective of services
Services provided
Threat continues
Futility of further services
No need for adjudication of dependency
This section is most often used with these parents as it is designed for the situation where the parent does the services but simply does not (and probably cannot) benefit from them. Probably need expert testimony (which we will talk about later) to demonstrate that the threat continues. Although there is case law that recognizes that “mental illness” may be an immutable problem in which futility can be presumed, its best to have expert testimony to proof futility as well. This section does not require an adjudication of dependency and thus can be used on the subsequent child born during the proceedings. If parent has already completed case plan and not benefited when subsequent child born and brought into care, the parent’s rights to that child can be terminated under this section without first adjudicating that child dependent. But there must be SOME services offered. Doesn’t have to be pursuant to a case plan, it may be from previous APD, or mental health services provided.

6. Section 39.806(1)(e) Adjudication of Dependency
Case plan with Appropriate Services
Failure to Substantially Comply (i.e., Remedy the Circumstances)
This section is often pled in conjunction with (c). Here you need dependency and case plan orders. Although the parent may have attended all the services, they failed to benefit (probably because no services would render then a competent parent). Again, you will probably need expert testimony to demonstrate that the parent failed to remedy the circumstances despite completing the services. REMEMBER: if the parent didn’t get the appropriate diagnosis and services, this will be a solid defense to tpr. How can they get better if they haven’t been properly diagnosed and treated or offered the appropriate service?

7. Expert Testimony Before and After Psychological Evaluations
Detailed testimony re: danger parent poses
Having a before and after psych eval can be critical. It will tell the court what changes needed to occur to render parent safe and if those changes in fact occurred. Please have them describe in detail what makes the parent dangerous. Explore with them (prior to trial) what the parent is unable to do on a daily basis that renders them incapable of caring for the children on their own. E.G., can’t administer simple medication, can’t help with homework, can’t talk to teachers, don’t know to take them to dentists, ignored developmental problems, etc. .

8. Provider Testimony Treating Provider and/or Therapist
Treatment plans and progress reports
Talk to treating providers and therapists early on (or have GAL do this) Find out what treatment they are providing (what the parent’s problems are)(make sure they know all relevant information about the parent and aren’t just relying on self-reporting) Ask what benefits they expect the parent to get from the service. Then at the end of the service, make sure to get a report on the parent’s progress (or lack thereof). They won’t want to answer the bottom line question like psychologists will (can the parent, parent) but if you ask them detailed questions about the parent’s progress in overcoming the stated problems, you won’t have to

9. GAL Testimony Before and After Testimony
Prepare GAL for feelings of sympathy
Talk to Parent
The GAL can be very useful describing the children’s behavior (THAT THEY WITNESSED) when they first came in and how it has improved since they have been out of parent’s care. This evidence tends to prove harm from the parent’s neglect (the problems weren’t because of some problem with the child) Include untreated delays (often in these cases)
Talk to your GAL and your cc about their feelings of sympathy for a developmentally delayed parent. Although its understandable and perfectly fine for GAL and/or cc to feel sympathy for the parent, remind them that they need to focus on children. “I know she’s loving, but is she safe?” Very important that GAL talks or attempts to talk to parent. They can testify about the Mother’s behavior.

10. Competency Determine early if there are competency issues
If parent cannot “assist” defense attorney no Attorney ad Litem or Guardian Attorney appointed See, S.K v. Dep’t of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007)
An incompetent parent can have parental rights terminated
No surrenders
The right to be competent before trial is a criminal not a civil right. TPR is a civil proceeding (not designed to punish parent, but protect child and different standard of proof) No provision in chapter 39 or rules for appointment of GAL attorney or Attorney ad litem for incompetent parent and rules are self-contained. PLEASE OPPOSE the appointment of either of these things. There is a stock memorandum of law available, please discuss with Supervising attorney, regional and appellate counsel. The incompetency is also a basis for the tpr (if they are incompetent to stand trial, then they are incompetent to parent)
Defense attorney is free (pursuant to bar rules) to seek to have parent appointed a guardian under guardianship rules (BUT it should not delay proceedings) hence determine competency issues early on in case.
Object to parent surrendering. May not be sufficiently competent. Guardian for parent is not authorized to sign surrenders. GO TO TRIAL The juvenile rules are self-contained: the civil rules of procedure DO NOT APPLY in dependency proceedings. Fla. R. Juv. Pr. 8.00, committee notes to the 1991 amendment “Reference to the civil rules, previously found in rule 8.200, has been removed, because the rules governing dependency and termination of parental rights proceedings are self-contained and no longer need to reference the Florida Rules of Civil Procedure.”