Termination of Parental Rights

1. 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

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

3. 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

4. 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 child’s sibling f

5. 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

6. TPR Statutory Grounds § 39.806 Parent has a history of extensive, abusive, and chronic use of alcohol or a controlled substance. j

7. TPR Statutory Grounds § 39.806 Child who tests positive at birth for controlled substance/ alcohol k

8. 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 child’s our-of-home placement were caused by the parents. l

9. 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

10. Review the Petition

11. 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

12. Grounds for Termination of Parental Rights

13. a Voluntary Surrender § 39.806(1)(a) • Written • Consent • Department to take custody • Not under fraud or duress

14. 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

15. Abandonment § 39.806(1)(b) Continued • Location of parent unknown • Cannot be ascertained by diligent search • Within 60 days

16. 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

17. 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

18. d Incarceration § 39.806(1)(d) • 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

19. d Incarceration § 39.806(1)(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

20. d Incarceration § 39.806(1)(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

21. 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

22. Failure cannot be because of: • Parent’s lack of financial resources • Department’s failure to make reasonable efforts to reunify

23. 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.

24. 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)

25. 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

26. Egregious Conduct Failure to Protect Can be Enough

27. Egregious Conduct Towards Sibling Nexus Required Nexus is required between the abuse of one child and the prospective abuse of a sibling

28. 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

29. Nexus Must “connect the dots” between the bad behavior of the parent and the effect on the child

30. Nexus Always be prepared to prove the nexus element

31. 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;

32. 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.

33. 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”

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

35. i Involuntary TPR of sibling § 39.806(1)(i) • Prior involuntary TPR of sibling • Substantial risk of significant harm

36. 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

37. 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

38. 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 Child’s 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

42. Manifest Best Interest

43. Manifest Best Interest (MBI) • Court must make specific finding that TPR is in the child’s manifest best interest § 39.810(1)-(11) • The final judgment is subject to reversal if no MBI on the record

44. 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

45. 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)

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

47. 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)

48. Manifest Best Interest 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)

49. Least Restrictive Means

50. 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