Termination of Parental Rights

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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 2014
www.GuardianadLitem.org
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TPR Statutory Ground () MBI () LRM

• Clear Convincing Evidence

• TPR Grounds Exist

• Manifest Best Interests

• Least Restrictive Means

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TPR Statutory Grounds 39.806
a

• Voluntary Surrender

b

• Abandonment

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

c
d

• Incarceration

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TPR Statutory Grounds 39.806

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

e

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

f
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TPR Statutory Grounds 39.806

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

g

• Committed Murder or Voluntary Manslaughter of a
  Child

h
i

• Involuntary TPR of a Sibling

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TPR Statutory Grounds 39.806
Parent has a history of extensive, abusive, and
chronic use of alcohol or a controlled substance.
j
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TPR Statutory Grounds 39.806
Child who tests positive at birth for controlled
substance/ alcohol
k
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TPR Statutory Grounds 39.806
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 childs our-of-home placement were caused by
the parents.
l
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TPR Statutory Grounds 39.806 (New Grounds)
Clear and convincing evidence exists to support a
finding that the child was conceived as the
result of a sexual battery.
m
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Review the Petition
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Review the TPR Petition with Team
Be sure petition contains facts alleging

• Grounds for TPR

• Parents informed of right to counsel

• Child dependent (if required)

• Manifest Best Interests

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Grounds for Termination of Parental Rights
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a
Voluntary Surrender
39.806(1)(a)

• Written

• Consent

• Department to take custody

• Not under fraud or duress

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b
Abandonment 39.806(1)(b)

• While being able AND

• No effort to support AND

• No communication OR

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

OR
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Abandonment 39.806(1)(b) Continued

• Location of parent unknown

• Cannot be ascertained by diligent search

• Within 60 days

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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

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c
Conduct towards child and continued involvement
threatens life, safety, well-being despite
services 39.806(1)(c)

• Provision of services AND

• Harm AND

• Futility no reasonable basis to believe parent
  would improve

• Do not need dependency adjudication or 9 months

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d
Incarceration 39.806(1)(d)

• Significant portion of childs 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

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d
Incarceration 39.806(1)(d)

• Significant portion of childs minority
• Court considers childs age and the childs need
  for a permanent and stable home
• The period of time begins on the date that the
  parent enters into incarceration

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d
Incarceration 39.806(1)(d)

• Continued parent child relationship harmful to
  child. When determining harm the court
  considers
• Childs age
• Parent / child relationship
• Nature of parents 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

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e
Child continues to be abused, neglected, or
abandoned by the parents. 39.806(1)(e)

• Adjudicated dependent AND

• Case Plan filed AND

• 9 or more months

• Failure to substantially comply OR

• Material Breach 39.806 (1)(e)2

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Failure cannot be because of

• Parents lack of financial resources

• Departments failure to make reasonable efforts
  to reunify

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f
Definitions

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

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

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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 childs sibling
39.806(1)(f)
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Egregious Conduct

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

• Commit or failed to prevent

• Knew of previous abuse and did nothing

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Egregious Conduct
Failure to Protect Can be Enough
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Egregious Conduct Towards Sibling Nexus Required
Nexus is required between the abuse of one child
and the prospective abuse of a sibling
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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

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Nexus
Must connect the dots between the bad behavior
of the parent and the effect on the child
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Nexus
Always be prepared to prove the nexus element
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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

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When presenting a nexus case, emphasize

• Treatment the parent received or didnt receive
  after the prior conduct and any relapses the
  parent has experienced

• All circumstances that have not changed and

• Expert testimony.

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g
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
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h
Committed murder or voluntary manslaughter of a
child 39.806(1)(h)
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i
Involuntary TPR of sibling 39.806(1)(i)

• Prior involuntary TPR of sibling

• Substantial risk of significant harm

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

• History of Drug / Alcohol Use

• Incapable of Caring for the Child

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

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

• Child Tests Positive at Birth

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

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

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

• Conditions that Led to the Childs Out-of-Home
  Placement were cause by the Parents

39
M
Clear and convincing evidence exists to support a
finding that the child was conceived as the
result of a sexual battery. 39.801(m)
Guilty plea or conviction of unlawful sexual
battery is conclusive proof that the child was
conceived in this manner
40
Single Parent Terminations

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

• Final order should contain findings to support
  single parent termination

41
Single Parent Terminations Best Practice

• 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

• Review Single Parent TPR training available on
  the website

www.Guardianadlitem.org
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Manifest Best Interest
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Manifest Best Interest (MBI)

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

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

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Manifest Best Interest (MBI)

• Each child individually

• Review MBI questions with GAL

• If consent by default still need MBI testimony

• Not a comparison between placement and parents

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Manifest Best Interest
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)
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Manifest Best Interest
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. Emotional ties harm to the child from the
termination of parental rights ... 39.810(5)
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Manifest Best Interest
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)
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Manifest Best Interest
9. The depth of the relationship existing between
the child and the present custodian 39.810(9)
10. Childs wishes 39.810(10)
11. Guardian ad Litem recommendations 39.810(11)
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Least Restrictive Means
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Least Restrictive Means Padgett Test

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

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

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Least Restrictive Means Padgett Test
Relative Issue goes only to MBI not Least
Restrictive Means
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Most Common Reversals
Insufficient evidence of harm

• Evidence not Clear and Convincing

• GAL testimony insufficient

• Therapist testimony not provided

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Most Common Reversals
Insufficient Evidence of Provision of Services

• Incarceration Cases

• Mental Illness

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Common Issues
Proving Harm

• Bad acts alone are not enough

• Substance abuse without harm not enough

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Common Issues
Proving Harm (Continued)

• GAL testimony (improvements since removal)

• Developmental delays

• Medical problems

• Educational problems

• Therapist testimony

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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.

• Child is aware of DV

• GuardianadLitem.org for more Domestic Violence
  Resources

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Common Issues
Hearsay

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

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

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

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Post Trial Issues

• Timely submission of final judgment

• Accuracy of final judgment

• Grounds

• Manifest Best Interests

• Least Restrictive Means

• Findings as to Single Parent

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Appeals
Notify Appellate Team of Appeals
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TPR Training Materials
Go to the P Drive to find

• TPR Training Power Point Presentation

• TPR Checklist

• TPR Evidence Chart

• MBI Chart

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TPR Training Materials
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GuardianadLitem.org
Resources By Topic
Conferences Training
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GuardianadLitem.org

• Searchable Case Summaries

• Sign up to Receive Legal Briefs Newsletter

• Review New Attorney Training for Practice Aids
  Checklists

• Dependency Practice Manual

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Hillary S. Kambour, Esq. Director of Legal
Training Appellate Counsel Statewide Office of
the Guardian ad Litem Program Hillary.Kambour_at_gal.
fl.gov
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