TERMINATION TRIAL PREPARATION

Transcription

1 TERMINATION TRIAL PREPARATION GROUNDS FOR TERMINATION COMMONLY USED IN CPS CASES Section , Texas Family Code, enumerates the various grounds for involuntary termination of parental rights. Termination may take place if any one ground is proven by clear and convincing evidence and if termination is in the child s best interest can be proven by the same evidentiary standard. I. The abandonment grounds: Grounds A, B, C, G, H and S are considered abandonment grounds. The requisite time period, failure to financially support, and expression of intent must be proven. How can a CASA volunteer assist in providing proof of these elements? Keep a timeline concerning when the last contact was made between the parent and child. Include names of witnesses to the contact. Make notes concerning any child support payments that were made or gifts, clothing or other supplies that were provided. The foster parents should have information concerning material items the child received. Ask to see the items for yourself. Ask the parent who had the child in their care when the last contact was. Did the other parent make any comments to that parent or other relatives concerning his willingness to return for the child? Were the comments specific? Ask a parent who flees the situation she is in whether she intends to return for her child or does she expect the child to be adopted. Ground S has also been called the Baby Moses Law. II. Abuse and Neglect Grounds: Grounds D and E are the primary grounds used in CPS cases. Except in unusual cases, Child Protective Services would never have been involved unless there had been abuse or neglect. The key is to locate information that proves endangerment. Endangerment is defined as to expose to loss or injury, to jeopardize. Because endangerment is so broadly defined, a wide range of acts or omissions can be brought to the attention of the court. Some examples of circumstances the court can consider are a parent s acts or omissions before or after a child was born, a pattern of behavior, unsanitary conditions, criminal history, failure to contact CPS, abuse toward the other parent, abuse of another child, violent behavior, and the obvious acts of abuse or neglect. Grounds D and E highlight the importance of CASAs familiarizing yourselves with CPS investigators and reports of current and past investigations. You may also need to keep track of criminal cases, review the child s school and medical records, and learn of the parents criminal, mental health, and drug abuse history. To prove ground M, a previous judgment specifying that a prior termination was made under D or E also becomes a new termination ground on another child. III.

2 Affidavits of Relinquishment (Ground K) are frequently executed in CPS cases. The parent often realizes that she is unable to provide for the child. CASAs may be asked to witness the signing of the document and to provide testimony supporting the assertion that this would be in the child s best interest and that the parent voluntarily signed a document he understood. IV. Child Abuse Convictions can be used to terminate parental rights under subsection L. The duty for gathering that evidence is ordinarily left to the prosecutor handling the case. Criminal histories are normally run at the very beginning of a CPS case on all respondents. Use the list from the statute to determine if there is a conviction that qualifies, then find out whether there was serious injury. Serious injury, under the Penal Code, can include mental injury to a child. V. Constructive Abandonment is very common in CPS cases. Parents merely walk away from their children, often choosing to remain with an abuser or continuing to use drugs. Ground N requires that CPS have conservatorship for six months, then prove that CPS has made reasonable efforts to return the child, that the parent has failed to maintain significant contact with the child, and that the parent has demonstrated an inability to provide a safe environment for the child. In these cases, check the service plan. Did CPS come up with specific tasks for the parent to complete? Were those tasks appropriate under the circumstances? Ask service providers for information on attendance and level of cooperation. Find out when drug tests were offered, failed, or refused. Keep a timeline of visitations the parent attended or missed. Did the parent, especially if incarcerated, make any attempts to write to the child, send birthday or Christmas greetings, etc.? What is the current housing situation of the parent? Is the perpetrator still in the home? Is the home adequate for the size family? Who will be living there? Ask the housing department if the parent has made efforts to obtain a home. Document when and how. Is the home free of safety hazards? Take pictures if you safely can, especially if the conditions of the home were cause for removal. VI. Failure to Comply with the CPS Service Plan is ground O and commonly used. Be aware that there is a nine month waiting period for the time requirement to be met. The Court s Status Orders require that the parent comply with the service plan. The same evidence as mentioned in paragraph V above is generally applied to this ground. CASAs can help to back up CPS worker assertions that the service plans were explained to the parent (or that the parent never attended the staffings) and that the worker provided names, numbers, appointment times, transportation (if necessary) or notice of visits to the parent. CASAs can visit with service providers to confirm attendance and compliance. Ask the parent whether or not they are attending. Ask them if they are still using drugs. VII. Drug Use can also be grounds for termination. Ground P states that if a parent has endangered a child through drug use and fails to complete a rehab program, or uses again after completing the

3 program, rights can be terminated. The Court Orders frequently state that the parent must complete rehab. This is also ordered through adoption of the Service Plan. Familiarize yourself with signs of drug abuse, and note whether you observe the parent displaying these signs. Ask the CPS worker what the results of the last drug test were, or when the next one will be. The CPS worker normally asks what the results will be or confronts the parent concerning a positive. If they do not do so, remind them. Parents often admit a great deal when confronted with a dirty drug screen. Ground R provides for termination if a child is born addicted to a controlled substance and, quite conveniently, born addicted is defined as a child born with a demonstrable presence of alcohol or controlled substance in his body or who experiences observable withdrawal or harmful physical effects. Obviously, we want hospital records. VIII. Mental health grounds are addressed in Texas Family Code Section CPS must prove that, in all reasonable probability, the parent will never (at least until the children are 18) be able to provide for the child s physical, mental and emotional needs due to the parent s mental or emotional illness or mental deficiency. To prove this ground, a well-qualified psychologist s or psychiatrist s testimony would be required. We do not routinely plead this ground, so the caseworker must request an amendment of the pleadings to add mental health grounds. CPS should have an expert who is willing to testify before making such request. CHILD S BEST INTEREST Termination can NEVER occur unless it is in the child s best interest that is happen. There are many factors that can be considered in the Court s determination of best interest. The opinion of a CASA is never more important than in this regard, however, opinions are not evidence. What do the child s service providers, teachers and foster parents have to say? What observable changes have you seen in the child? Will adoption be likely? Does the child have a preference? Does he have special needs? Will all parents be terminated? Was there an incident so severe in nature that the parent could never be trusted with the child s safety? Consider the child s circumstances at the time of removal. Also, consider whether evidence is an admissible, quantifiable fact. Hunches and suspicions are important. Don t discount them, but they are not evidence. Call for a meeting with your supervisor. If the supervisor thinks it is necessary, meet with the caseworker and assistant district attorney or regional attorney. (We get paid to do this.) The following is a list of factors to be considered in determining child s best interest as enumerated by the Texas Appellate Courts: CHILD S BEST INTEREST the desires of the child the emotional and physical needs of the child now and in the future; the emotional and physical danger to the child now and in the future;

4 the parental abilities of the individuals seeking custody; the programs available to assist these individuals to promote the best interest of the child; the plans for the child by these individuals or by the agency seeking custody; the stability of the home or proposed placement; and the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one and any excuse for the acts or omissions of the parent. The above are not intended to be the only factors considered and good common sense is your best guide as to what is right for a child s future and protection. The legislature has given further guidance for CPS cases, and the Court and CPS are instructed by statute to consider additional factors. The following is a summary of the statute: Factors in Determining Best Interest of Child (Legislative Guidelines for CPS and the Court) Prompt and permanent placement of the child in a safe environment is presumed to be in the child s best interest; the child s age and physical and mental vulnerabilities; the frequency and nature of out-of-home placements; whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency; the results of psychiatric, psychological, or developmental evaluations of the child s parent; whether there is a history of abusive or assaultive conduct by the child s family or others who have access to the child s home; whether there is a history of substance abuse by the child s family or others who have access to the child s home; whether the perpetrator of the harm to the child is identified; the willingness and ability of the child s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency s close supervision; the willingness and ability of the child s family to effect positive environmental and personal changes within a reasonable period of time; whether the child s family demonstrates adequate parenting skills, including providing the child and other children under the family s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child s physical and psychological development; guidance and supervision consistent with the child s safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even

5 though the violence may not be directed at the child; and (F) an understanding of the child s needs and capabilities; and whether an adequate social support system consisting of an extended family and friends is available to the child. FINAL TIPS A parent s admissions to you or CPS are admissible in court. Make notes of what you are told as close to the time statements are made as possible. When you are aware of good information sources such as witnesses or records, pass that information on to CPS and their attorney so that information can be obtained for trial if needed. Encourage attorneys ad litem for the children to meet the children they represent when you are planning a visit. Remember: It s not what you know; it s what you can prove. Our instincts are not admissible in court, but with diligent efforts and cooperation, we can unearth information which is admissible.