The Attorney's Responsibility in Defending Tpr Cases

JurisdictionSouth Carolina,United States
CitationVol. 35 No. 2 Pg. 33
Publication year2023
The Attorney's Responsibility in Defending TPR Cases
Vol. 35 Issue 2 Pg. 33
South Carolina Bar Journal
September, 2023

The Attorney's Responsibility in Defending TPR Cases

By James Fletcher Thompson

Editor's Note: This article is part one of a two-part series on TPR cases, continuing in our November 2023 issue.

Contested Termination of Parental Rights (TPR) Cases: Setting the Stage

Each year in South Carolina, approximately 1600 children are adopted.[1] Three quarters of these children are placed privately; the others are placed through the foster care system.[2] These children are placed with families in South Carolina and in other states.[3] In many of the foster care cases, and nearly all the private adoptions, one or both birth parents execute a Consent for Adoption document, paving the way for an uncontested adoption. The triggering event for a contested TPR trial comes when no voluntary consent document has been signed by a birth parent, and the plaintiffs (either the Department of Social Services (DSS) or the prospective adoptive parents) files for a judicial finding of TPR.

To grant a TPR, the court must find that one or more grounds for TPR exists that are proven by clear and convincing evidence. Not only must a statutory ground for TPR be met, but so too must the element of willfulness be established by clear and convincing evidence.[4]The court must then analyze the child's best interest.[5] Of the twelve grounds for TPR, the most commonly litigated grounds are failure to remedy the condition that caused the child to come into DSS custody; failure to visit the child for a period of six months; failure to support the child for a period of six months; abandonment of the child; or that the child has been in foster care for fifteen at the most recent twenty-two months. This article addresses the defense attorney's responsibility when defending a parent in what some commentators term, the "civil death penalty."[6]There are, after all, "[f]ew forms of state action that are both so severe and so irreversible."[7]

The Venerated Parent-Child Relationship

A parent's constitutionally protected right to raise his or her child is deeply rooted in this nation's history and tradition.[8] The United States Supreme Court has characterized the right to conceive and to raise one's children as "essential,"[9]as one of the "basic civil rights of man,"[10] and as a right "far more precious . . . than property rights."[11]

Not unlike a criminal defense attorney, attorneys who represent parents in TPR proceedings play a crucial and life-altering role in protecting these liberty interests. A parent's TPR attorney must protect parents from unjust accusations; ensure they receive due process protections; and quell the coercive power of the state to deprive the parent of a fundamental liberty interest. Due process rights for these parents do not erode when facing abuse or neglect proceedings, or even a TPR. It is perhaps those moments when constitutional protections are most cherished.[12]

Basic Obligations

In the TPR context, what does strong advocacy require? The ABA Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases provide solid answers to that question and sets the standard high indeed.[13] The standards list "basic obligations" for defense counsel, some of which include:

• cooperate and communicate regularly with other professionals in the case;

• advocate for the client's goals and empower the client to direct the representation and to make informed decisions based on thorough counsel;

• meet and communicate regularly with a client well before court proceedings;

• conduct a thorough and independent investigation at every stage of the proceeding;

• interview the client well before each hearing, in time to use client information for the case investigation; and

• review the child welfare agency case file.

Kinship Care

Experienced TPR practitioners know that perhaps the most effective advocacy comes before the TPR action is filed. Advocating for a child to be placed with a relative caregiver, instead of entering or remaining in foster care, is the single most effective advocacy tool at the disposal of defense attorneys to avoid a TPR action altogether. Federal law, as well as South Carolina statutory amendments to effectuate those federal mandates, require that children be placed in the least restrictive and most appropriate setting that meets their needs, with a strong emphasis on relative caregivers and other persons who have a constructive and caring relationship with the child.[14]It is essential that the attorney and client act early to identify a relative placement, before a child is securely attached to a foster parent.[15]

DSS is unlikely to pursue a TPR against a birth parent if the child is not in foster care.

Even where a birth parent is uncooperative or fails to remedy the conditions that caused the child to be removed from the home, DSS is likely to initiate a court action where the family member obtains custody and DSS closes its case, never pursuing TPR. Further, even if TPR is pursued, one of the most difficult to defend TPR grounds is not applicable if a child is in kinship care; Section 63-72570(8) is only applicable if the child has been in foster care under the responsibility of the state for fifteen of the most recent twenty-two months.

A Suitable Placement Plan

Another way that a defense attorney can advocate for a client upstream of TPR is to advocate that the client's placement plan be created with an accurate understanding of the parent's needs and be reasonably tailored to address those concerns.[16] Too often, without defense counsel objection, DSS loads up with an "everything but the kitchen sink" of placement services, some unrelated to the reason the child came into care. For instance, agreeing for a placement plan to include drug and alcohol treatment is not appropriate when there is no evidence of drug or alcohol abuse. Placement services are time consuming, sometimes expensive, and present an opportunity cost for the parent, requiring the parent to be away from work, family and other legitimate pursuits. When a placement plan is flawed from the beginning, requiring "parents to engage in services that will not make them better parents, no one wins."[17] Objections to the placement plan must be made promptly, and if the placement plan remains unsuitable, an appeal taken.[18] Should a TPR be filed, it is too late to voice objections to the sufficiency of the placement plan.[19]

Lack of Willfulness

In order to prove a parent has failed to visit, failed to support, or abandoned the child, the element of willfulness is required,[20] which must be proven by clear and convincing evidence.[21] By acknowledging a parent failed to meet...

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