Chapter 14 Termination of Parental Rights
Library | Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.) |
CHAPTER 14 Termination of Parental Rights
Sarah Katz
14.01 Introduction: The Relationship between Neglect and Termination Cases
Representing parents in termination of parental rights (TPR) proceedings is one of the most challenging aspects of handling dependency cases. A termination decree ends a parent's rights to visit, communicate with, and have information about his or her child. As the Supreme Court has explained, "[T]erminating parental rights is final and irrevocable. Few forms of state action are both so severe and so irreversible." Santosky v. Kramer, 455 U.S. 745, 759 (1982). Lawyers representing parents in termination proceedings take on a huge responsibility.
Counsel is well-advised to be aware of the specter of a parent's loss of parental rights from the very beginning of the dependency or neglect case. Dependency and termination of parental rights cases are inextricably linked because of the time frames developed by Congress when it enacted the Adoption and Safe Families Act (ASFA). ASFA requires that, absent certain exceptions, states move to terminate parental rights so that the child is eligible for adoption whenever a foster child cannot be reunified with a parent in a fixed period of time. Under ASFA, termination petitions may be brought once a child has been in foster care for fifteen of the preceding twenty-two months, see 42 U.S.C. § 675(5)(E) (2014), and, if "aggravated circumstances" are present, even sooner. Id. at § 671(a)(15)(D)(i) (2014). Because the passage of time counts against parents when children are in foster care, case workers or agencies may "quit" on a parent early in the case and move mechanically toward the goal of termination (and adoption), with the assumption that is how the case will end. These are dangerous and self-fulfilling practices that counsel will want to prevent from being implemented.
Despite being the harshest penalty judges can impose in civil proceedings, termination of parental rights is conceived as a non-punitive disposition designed only to further a child's interests. Over the past twenty years, federal law has identified two children's interests as standing out above all others in importance: (1) child safety (which often results in children being removed from families and placed in foster care) and (2) permanency (which is a code word for adoption in many states). Impermanency, which usually means allowing children to remain in foster care for more than a year or two, is regarded as a far worse result for children than permanently banishing their families of origin from their lives. See Sacha Coupet, Swimming Upstream Against the Great Adoption Tide: Making the Case for "Impermanence" 34 Cap. U. L. Rev. 405, 412 (2005). This awesome state power is hailed as child-friendly, because children are supposed to gain something very valuable as the price paid for losing their family of origin: the creation of a new family. Termination of parental rights, for the overwhelming percentage of cases, is sought less to bar parents from their children forever (even if it has that consequence) than to free children to become the legal children of new parents via adoption.
Counsel who represent parents from the beginning of the dependency proceeding have the responsibility throughout the case to advocate aggressively for the most extensive and flexible visitation possible, and to work hard to ensure mandated services are actually provided. It is much safer and effective to fight for services needed to reunite a family than to lay back and complain at the termination stage that the Agency failed to do its job. Working hard to ensure that case plans are being implemented may not only help reunite the family, but may also prevent a termination petition from being filed, or help to mount a successful defense if one is filed.
When counsel is appointed only at the termination stage, it is often wise to focus on strategies aimed at convincing the Agency not to prosecute the termination petition because of various antecedent failures to assist the parent to comply with the case plan, or to refocus the goal of the case to one of the alternate dispositions discussed in section 14.06. If the case must proceed to trial, counsel's attention must turn to mounting a defense, as addressed in sections 14.07-08.
14.02 Whether and When to File a Termination Petition
ASFA allows the Agency to request findings in court that fast-track cases to termination where "aggravated circumstances" are present, such as abandonment, torture, chronic abuse, sexual abuse, or where the parent has committed murder or voluntary manslaughter of another child of the parent 42 U.S.C. § 675(a)(15)(D). Although these definitions amount to suggested grounds for termination, many states have expanded the bases for termination to encompass other definitions.
The amount of time children have been in foster care has become a primary measure for determining when to terminate parental rights. In too many jurisdictions, efforts to terminate are made mechanistically once children have been in foster care for the statutory minimum period of time. In these localities, petitions are filed without regard to other statutory or equitable considerations. Federal law was never designed to work that way. Built into ASFA's fabric are legal and equitable bases for foregoing a termination petition, and agencies faithful to federal law should assess every case individually to determine whether the law's exceptions are present.
ASFA identifies three exceptions to the fifteen-of-twenty-two-month rule. Whenever a relative is caring for children, federal law explicitly exempts states from seeking to terminate, and the federal government is committed to continuing to pay for foster care without a need to terminate parental rights. 42 U.S.C. § 675(5)(E)(i). Federal law also gives localities complete authority to conclude that a termination would not further the child's best interests. All that federal law requires is that agencies explain in the case plan "compelling reasons" for this determination. Id. at § 675(5)(E)(ii). Federal law also excludes situations in which termination should be sought where required reasonable efforts were not undertaken to seek a child's safe return to the family. Id. at § 675(5) (E)(iii). A majority of states have incorporated these or other exceptions into their laws. See, e.g., Ala. Code § 12-15-317 (2014); Conn. Gen. Stat. § 17a-111a (2014); Mo. Rev. Stat. § 211.447 (2014); Neb. Rev. Stat. § 43-292.02 (2014).
Although ASFA does not define "compelling reasons," as discussed in § 14.05(b), federal regulations, state statutes, and case law have mapped out what may qualify as a compelling reason. Counsel should become familiar with these provisions, and with ASFA's history, to be equipped to explain to the Agency's lawyer and argue in court that there are federal and state statutory grounds not to terminate parental rights. Because "compelling reasons" are not defined by federal statute, counsel may also be able to make creative arguments that they exist. These reasons may avoid the need to defend against a termination action altogether or provide the frame for an effective defense.
In all events, when representing parents are trying to reunify with their children, time matters. In all states, most termination proceedings cannot be filed until a child has been separated from the parent for a specified period of time. In a few states, the child must have been separated from the parent for the entire fifteen month ASFA time frame. See, e.g., Conn. Gen. Stat. § 17a-111a; Ind. Code § 31-35-2-4.5 (2014); N.M. Stat. Ann. 32A-4-29 (2014).
In many states, however, twelve months in foster care is an independent ground for termination of parental rights, as long as there is proof the Agency has been making reasonable efforts to reunify. See, e.g., Ark. Code Ann. § 9-27-341 (2014); Miss. Code Ann. § 93-15-103 (2014); N.J. Stat. Ann. § 30:4c-15 (2014); N.Y. Soc. Serv. § 358-a (2014). In Florida, a showing of substantial failure to comply with the case plan for twelve months is sufficient for terminating parental rights of foster children. See Fla. Stat. § 39.806 (2014). Other states add to this requirement that the child cannot be placed back with the parent within a reasonable time. See, e.g., La. Child. Code Ann. art. 1015(6) (2014); Mo. Rev. Stat. § 211.447; N.C. Gen. Stat. § 7b-1111 (2014); Ohio Rev. Code Ann. § 2151.414 (2014).
However, many states authorize termination of parental rights when children have been in foster care for less than one year. Arizona permits terminating parental rights when children have been in foster care for only nine months; six months are sufficient for children under three. See Az. Rev. Stat. §8-533 (1996). Maine permits termination cases to be filed after children have been in care for nine months, during which the parent has made no significant effort to correct the situation that required the placement. See Me. Rev. Stat. tit. 22, § 4055 (2014). Delaware permits termination cases involving infants after they have been in foster care for six months. See Del. Code Ann. tit. 13, § 1103 (2014). Kentucky, South Carolina, and Washington State allow petitions to be filed after children of any age have been in foster care for six months. See Ky. Rev. Stat. Ann. § 625.090 (2014); S.C. Code Ann. § 63-7-2570 (2014); Wash. Rev. Code § 13.34.180 (2014). Oklahoma requires waiting a mere three months. See Okla. Stat. tit. 10A, § 1-4-904 (2014). Finally, a few states appear to have no minimum time period before a termination petition may be brought. See, e.g., Ala. Code § 12-15-319 (2014); Minn. Stat. §§ 260.012, 260C.301 (2014); Mont. Code Ann. §§ 41-3-423, 41-3-609 (2014); W. Va. Code §§ 49-6-5, 49-6-5b (2014).
Although the specific statutory grounds for termination vary state by state, the focus of the termination proceeding generally is on the parent's efforts or success in remedying the...
To continue reading
Request your trial