Friday, July 5, 2013

The Life of a DCPP Case, Part Six - Termination of Parental Rights

Termination of Parental Rights

Why is the Division seeking to Terminate Parental Rights?

If your child has been in placement out of the home for one year, or 15 out of the last 22 months, and has ruled out the other possible plans which I discussed in the previous posts, the Division can seek to terminate parental rights.  If you have been served with a complaint for Termination of Parental Rights, but had not been involved with the process in the previous litigation, you should read all of the previous posts.

How does a TPR case start?

A Termination of Parental Rights (TPR) case, also called a guardianship case, begins when the Division of Child Protection and Permanency (DCPP) (formerly known as the Division of Youth and Family Services (DYFS)) files a complaint against you.  Like the original abuse or neglect  complaint that I discussed earlier, this is an ex parte process which means that you will not get a summons.  The order you received from the last permanency hearing gave the Division notice of the time allowed to file the complaint and the date you need to appear.  The Division will notify you of that date also.  A case for TPR is not a criminal case and you cannot be punished with a fine, jail time, or anything else if the court rules in the Division's favor.  However, your child support obligation will continue until your child is either adopted or returned to your custody.

What does TPR mean for me?

TPR is the most serious remedy available to the Division.  If the court terminates your parental rights, you will no longer have any right to:
  • Have contact with your child, in person, by phone, or any other means, unless the adoptive parent agrees to allow such contact;
  • Receive information about  your child's health, education, or welfare, except as the adoptive parent will allow,
  • Seek to enforce any promises of such contact with the family court;
  • Go to family court to regain custody.

DCPP has filed for TPR against me, what do I do now?

The first and most important step is to get a lawyer.  If you were represented by the Office of Parental Representation (OPR) during the previous abuse/neglect case, he or she will advise you that you will need to reapply for OPR representation so that he or she can continue to represent you for the TPR case.  OPR will usually assign your case to the same attorney who handled your case before.  If you are income eligible, you can qualify for an OPR attorney even if you did not have one before.

If you had a private attorney, he or she most likely will want to sign a new fee agreement with you.

You are allowed to represent yourself in any legal matter, but TPR cases are extremely serious.  Do not represent yourself.   Make sure the lawyer you hire is familiar with this type of litigation.

For the same reasons I explained in my earlier posts, each parent requires a separate lawyer, whether or not you and your co-defendant are married, or are living together.  Do nor hire an attorney who says he can represent both parents.  Very often, the mother an father are in different legal positions or simply disagree about how to handle the situation.

How can I help my lawyer prepare my case?

  • Give your lawyer any documents you have including any reports and cord papers regrading the case and any past cases involving you.
  • Meet with your lawyer and review DCPP's complaint, so your lawyer knows which facts are true and which ones you disagree with.
  • Keep in touch with your lawyer at least once a week.  Always make sure your lawyer has a current address and working phone number for you, as well as an emergency contact you can trust.
  • Always be honest with your lawyer.  Your lawyer will not disclose anything you wish to keep confidential.
  • Keep  copies of all letters you give DCPP, and give your lawyer a copy.  Get a journal and write down the date and time whenever you try to contact DCPP or any service providers.  Leave messages with DCPP or service providers if you cannot reach them.
  • Keep a calendar and use it to write down all court and visitation dates, as well as any dates for therapy or counseling appointments, and evaluations with experts.  Call 24 hours in advance of any scheduled visitations to confirm, even if the Court order does not require you to call ahead. 
  • Ask your lawyer to answer all your questions.
  • Let your lawyer know what result you want, as well as your "fallback" position.
  • Continue to cooperate with your case worker, but do not discuss legal issues relating to the litigation itself.  Do not sign any documents without discussing them with your lawyer first.

Grounds for Termination of Parental Rights

DCPP can seek termination of parental rights for any of the following reasons.
  • You have failed to correct the problems that led to your child's removal;
  • You abandoned the child (meaning that DCPP cannot locate the parent after using every available means to do so, or you have had no contact with DCPP, the child, or foster parents for six months);
  • You have been convicted of, or pleaded guilty to, a crime involving abuse, abandonment, neglect, or cruelty to a child in a criminal case;
  • You either committed, attempted to commit, helped someone commit, or hired someone to commit murder, manslaughter, assault, or some other act that could have resulted in death or serious injury to any of your children.
  Most cases don't proceed on these grounds though.  Rather the Division will usually proceed  on the theory that TPR is in the best interest of your child.  It's not a simple test though.  The Division would need to show that all of the following facts are true:
  1. You harmed your child in the past and/or will continue to do so;
  2. You are unwilling or unable to end the harm (which may be that your child will suffer serious and lasting emotional harm if removed from his or her current caretakers);
  3. DCPP has provided all the services it could have to help you correct the problems;
  4. Termination of Parental Rights will benefit the child more than in will hurt the child.

No matter what DCPP chooses to try to prove in your case, it must do so by "clear and convincing evidence."  That means more than a simple preponderance of the evidence, but less than beyond a reasonable doubt.

The next few posts will deal with your rights and responsibilities, and explain the TPR process as the trial approaches.  I'll discuss what DCPP will do to prove its case, and how your lawyer will prepare a defense for you.

Next: TPR - Your Rights and Responsibilities


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