Transcript Document

Florida Guardian ad Litem
Program
Termination of Parental Rights
Regional Training 2007
TPR = Statutory Ground (+) MBI (+)
LRM
• Clear & Convincing
Evidence
• TPR Grounds Exist
• Manifest Best Interests
• Least Restrictive Means
TPR Statutory Grounds §39.806
• Voluntary Surrender
• Abandonment
a
b
• Conduct towards child and continued
involvement threatens life, safety, wellbeing irrespective of services
c
• Incarceration
d
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
TPR Statutory Grounds § 39.806
• Subjected child to Aggravated Child Abuse, g
Sexual Battery, Sexual Abuse or Chronic Abuse
• Committed Murder or Voluntary Manslaughter
of a Child h
• Involuntary TPR of a Sibling
i
Review the Petition
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
Grounds for Termination of Parental Rights
a
Voluntary Surrender § 39.806(1)(a)
• Written
• Consent
• Department to take custody
• Not under fraud or duress
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
Abandonment § 39.806(1)(b)
Continued
• Location of parent unknown
• Cannot be ascertained by
diligent search
• Within 60 days
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
c
Conduct towards child and continued
involvement threatens life, safety, wellbeing 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 12 months
d
Incarceration § 39.806(1)(d)
• Substantial portion of child’s
remaining 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
Incarceration § 39.806(1)(d)
• What is Substantial Period of Time?
• 25 - 32 percent of child minority is not
substantial portion
• B.C. v. Florida Dept. of Children and
Families, 887 So.2d 1046 (Fla. 2004)
e
Child continues to be abused,
neglected, or abandoned by the
parents. § 39.806(1)(e)
• Adjudicated dependent; AND
• Case Plan filed; AND
• 12 or more months
• Failure to substantially comply; OR
• Material Breach § 39.806 (1)(e)2
Failure cannot be because of:
• Parent’s lack of financial
resources
• Department’s failure to
make reasonable efforts to
reunify
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.
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)
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
Egregious Conduct
Failure to Protect Can be Enough
Egregious Conduct Towards Sibling
Nexus Required
• Nexus is required between the abuse of one
child and the prospective abuse of a sibling
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”
h
Committed murder or voluntary
manslaughter of a child § 39.806(1)(h)
i
Involuntary TPR of sibling §
39.806(1)(i)
• Prior involuntary TPR of sibling
• Substantial risk of significant harm
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
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
Manifest Best Interest
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
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
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)
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)
Manifest Best Interest
6. The likelihood of an older child remaining in longterm 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)
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)
Least Restrictive Means
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
Least Restrictive Means
Padgett Test
“Relative Issue” goes only to
MBI not Least Restrictive
Means
Most Common Reversals
Insufficient evidence of harm
• Evidence not Clear and Convincing
• GAL testimony insufficient
• Therapist testimony not provided
Most Common Reversals
Insufficient Evidence of Provision of
Services
• Incarceration Cases
• Mental Illness
Common Issues
Proving Harm
• Bad acts alone are not enough
• Substance abuse without harm not
enough
Common Issues
Proving Harm (Continued)
• GAL testimony (improvements since removal)
• Developmental delays
• Medical problems
• Educational problems
• Therapist testimony
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
www.guardianadlitem.org for complete DV explanation
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
Post Trial Issues
• Timely submission of final judgment
• Accuracy of final judgment
• Grounds
• Manifest Best Interests
• Least Restrictive Means
• Findings as to Single Parent
Appeals
• Notify Appellate Team of Appeals
TPR Training Materials
Go to the P Drive to find
TPR Training Power Point Presentation
TPR Checklist
TPR Evidence Chart
MBI Chart
TPR Grounds Case Summaries
www.GuardianadLitem.org
Resources By Topic
Conferences & Training
www.GuardianadLitem.org
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