Monday, July 8, 2013

The Life of a DCPP Case, Part Eight - Considering Your Options Before Trial

Considering Your Options Before Trial

By now I am sure you know that once the Division has sought to terminate your rights, the process of preserving your rights and regaining custody of your child becomes extremely difficult.  As I mentioned in the previous post, you will be overwhelmed with appointments with service providers, evaluations, court appearances, and scheduled visits with your child for parenting time.  At the same time, you will want to keep up with your work and school obligations. 

I don't know the percentage of TPR cases that are won, but I do know that the process can be emotionally, mentally and physically draining for parents.    As overwhelmed as you are, at this point in the case you need to take time to think about your situation and decide what option is best.  Keep in mind that the option that is best for your child may not be the one that is best for you.

So what choices do you have?

  • Attempt to regain custody of your child.

If you decide you want to move forward to trial, you need to work closely with your lawyer and continue to comply with all court Orders and work with DCPP.  In order to have a fighting chance, you must not miss any dates for evaluations, therapeutic appointments, court appearances, or visits.  At this point in your case your lawyer should be receiving discovery.  DCPP keeps contact sheets that document the life of your child almost on a minute by minute basis.  Everything you say or do (or fail to do) will be documented in these sheets.  The judge will be reviewing this evidence when he or she makes his decision.  That is why you should cooperate with your case worker at all time and never be berbally abusive.  However, do not discuss any issues with your worker if they pertain to legal issues in the case.   Your worker should not attempt to influence your decision or predict the outcome.  Do not sign any documents without consulting your lawyer first.  It is perfectly OK to say, "I need to discuss this with my lawyer, I will follow up with you after that."  If you have a problem, contact your lawyer and he will deal with the situation between attorneys.

  • Ask the Court to place your child with a relative or friend

If your child is in foster care, you can ask the court to place your child with a relative or friend.  In most cases, DCPP will not want to remove the child from a foster home where he or she has lived for some time, if the foster parents wish to adopt.   But it some cases, the foster parents change their mind, and DCPP will be looking for a new placement.  Even if DCPP tells you they do not want to remove your child, ask the case worker to check out relatives or friends anyway.    DCPP would prefer to place with a relative, but will investigate placing with family friends also. 

During the discovery process, your lawyer will receive any letters from the Division to any relatives who have been considered as placement options, but have been ruled out.  Your attorney can tell you the reasons why DCPP has decided not to place a child with a relative or friend that you have suggested.

Anyone who is interested in taking your child will need to cooperate with DCPP by participating in a home study, and participating in foster parent training.  DCPP can rule out any individuals who have had previous drug, criminal or DCPP history.   Keep this in mind when you consider who to offer as a potential placement resource.

Sometimes, DCPP will agree to a relative placement on conditions that the birth parent have no contact with the child, or have only limited supervised contact.  In  those cases, the court will not terminate the rights of the birth parent.    However, DCPP can  ask the court to notify it if the birth parent files papers in court seeking to change custody or parenting time.   You should know that as long as you retain your parental rights, you retain the right to go to court and ask a judge to change custody or parenting time - but DCPP will most likely oppose your application.

Even if you choose to go to trial and attempt to regain custody yourself, it is always a good idea to discuss possible relative placements with your lawyer, if your child is not with a relative or family friend.

  • Kinship Legal Guardianship (KLG)

In some cases, Kinship Legal Guardianship (KLG) can be an alternative to termination of parental rights.   It is a more permanent arrangement than simply to place a child in the custody of a relative or friend.  In a KLG arrangement, the relative agrees to raise the child until the age of 18, if necessary, and exercises all the functions of a parent.   At the same time, the birth parent retains some parental rights, including the right to maintain a relationship with the child.  In KLG, the child is not adopted, and the under KLG, the birth parent can decide whether or not to allow the KLG Guardian to adopt the child or change his or her name.

KLG is not an option in all situations and is only available if your child has been living with the prospective KLG guardian for a year.  A KLG Guardian must undergo the same checks as a prospective adoptive parent.  The court must decide that the parent is unable or unwilling to care for the child on his or her own, and that DCPP has made reasonable efforts to reunify.  

KLG sounds like a good alternative, and in many cases it is.  The catch is that DCPP usually will not support this option.  The law states that KLG is only an option if adoption "is neither feasible nor likely."    DCPP considers KLG a less permanent option than adoption, even though your lawyer will argue that it is not.   Sometimes DCPP will not even discuss KLG with the caregiver, even though your lawyer has notified DCPP that you want it to be considered.

If your lawyer thinks that KLG is an option for your case, he or she will discuss it with you.   Your lawyer can fight for KLG even if DCPP opposes it, but the fact that you want KLG is technically not a defense in a TPR case.  Let your lawyer know if you are willing to agree to KLG.  

DCPP does not oppose KLG in all cases and sometimes will propose it as a plan.  Even though KLG preserves your parental rights, you do not have to consent to it and you have a right to a trial.  The judge would then decide if DCPP has proven that KLG is a better option than reunification.  DCPP would have to prove this by clear and convincing evidence.

If the judge does decide that KLG is appropriate in your case, you do have the right to go back to court to regain custody of your child.  However, in such a hearing, the burden of proof is on you to show by clear and convincing evidence that your incapacity no longer exists and that it is in your child's best interest to return to you.    One reason DCPP opposes KLG in many cases is that they fear that KLG would allow the birth parent to interfere with the arrangement by constantly filing applications to change custody.

KLG does not terminate your child support obligation, even though a KLG guardian can get financial assistance.   If you do not want to have an ongoing child support obligation after your case is over, KLG is not the option for you.  KLG allows you to retain some parental rights so it makes sense that it requires you to be responsible for child support as well.

  • Voluntary Surrender of Parental Rights

You may decide that you do not want to proceed to trial and that you want to surrender your parental rights.  This is a very difficult decision which you must discuss with your lawyer.  There are lots of reasons why a birth parent might make this decision.  You may decide that you are unable to do what you need to do to get your child back.  You may decide that your child is better off in his or her current placement.  You may have ongoing issues, such as incarceration or drug problems that you have been unable to resolve and that would prevent you from parenting.  Your lawyer may have told you that after analyzing your case, it is unlikely that you would prevail at trial for whatever reason.

If you surrender your rights, your relationship with the child ends immediately.  You will still need to pay support until the adoption becomes final.  You cannot change your mind and you cannot appeal your case if you surrender.  That is why you should always wait as long as possible to decide.    Your lawyer would prefer to go to trial and wants to give you your day in court.   It is better to proceed as if you are going to trial, because you can surrender at any time before the trial is over.  But if you surrender, you cannot change your mind.  Don't make the decision until your lawyer has reviewed all the expert reports, and all of DCPP's evidence.  Your lawyer can advise you at that point if he or she thinks there is a realistic chance for success at trial, or not.

There are two ways to surrender your rights if you decide to do so.

    • General Surrender

If you execute a general surrender, you give up your right to a child, and allow DCPP to place your child in the adoptive home of its choosing.  This means that you have no say at all in who will adopt your child.   In most cases, a general surrender is not a good idea for this reason.    There is no benefit for the birth parent whatsoever in executing a general surrender.   Only consider this option if you want no involvement with your child ever in the future, or if DCPP will not accept an identified surrender and you do not want to proceed to trial.

    • Identified Surrender

For the above reason, most parents would choose an identified surrender instead.    An identified surrender also ends your relationship with your child.  However, unlike in a general surrender, you can designate a specific person to adopt your child, usually the current caregiver.  If your child is in the care of a relative who wishes to adopt, an identified surrender allows for the possibility that the adoptive parent might allow contact with your child in the future.  However, you can also execute and identified surrender if your child is in the care of a foster parent.

When you execute an identified surrender, you surrender your rights on the condition that your child is adopted by the person you designate.  If for any reason, the adoption does not take place, DCPP must notify you, and tell you that your surrender is void.  At that point your parental rights are reinstated, and you once again have the right to a trial.  

DCPP does not have to accept an identified surrender, and will only allow it if you are willing to surrender to the current caregiver.  You cannot surrender to anyone else.   If your surrender becomes void, DCPP may not be willing to offer an identified surrender and may ask if you will agree to a general surrender.  You do not have to agree to a general surrender and have the right to a trial.   If your identified surrender is void, it is because DCPP's original plan was not executed and it is DCPP's obligation to come up with another one.  You may be in a better situation at this point than you were when you originally decided to surrender. 

You need to contact your lawyer if you have executed a surrender that is now void.  If OPR has represented you, you need to reapply for the public defender so OPR can reassign your lawyer.   If you.  If you had a private attorney, you need to let him or her know that the situation has changed.

Every case is different.  Your lawyer can advise you but your decision is ultimately yours.   You genuinely think your child is better off with the people who have been caring for him or her.  If you feel that for whatever reason that you cannot parent your child, you are not a bad parent if you give your child to someone who can.   You may decide that the best gift you can give with your child is to allow your child to be raised by adoptive parents who can give him or her what you cannot. 

If you decide to surrender, you will be asked to fill out a form and testify in court.  Your lawyer will discuss this form with you before you make your final decision.  When you go into court you will be sworn and your lawyer will ask you the same questions on the form that you just signed.

But there is no reason to surrender if you don't feel that way.  A surrender does not help your legal position.  DCPP may make you think that if you lose the trial, they will automatically seek to remove any future children you have and will not provide services for you, but that if you surrender, they would work with you in that situation.  Those statements are not accurate.   It is true that if you lose your trial, DCPP may remove your future children, but that decision is at their discretion and they may still decide to work with you even if they do.  Don't let anything DCPP says influence your decision.  The only people who should influence your decision are your loved ones, your therapists or counselors, and your lawyer.

You may feel that you want to go to trial because you feel strongly that your child should be with you.  You may be thinking about the day  your child finds you in the future and that you want him or her to know that you did not give up and that you did all that you could.   Your lawyer may advise you that there is a chance of success at trial and that he or she feels you should not surrender.  I tell all my clients that I will support whatever decision they make.  

In our next post, I will discuss the pre-trial process in more detail so you know what you need to do before the trial date, and what you lawyer will do for you.

Next: Preparing for Trial

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