Termination of the Parent Child Legal Relationship

1. Termination of the Parent Child Legal Relationship

2. Termination Hearing • Purpose • The purpose is to free the child for adoption. • Timing • Must be held within 120 days of the motion for termination’s filing. • Evidence considered • The rules of evidence apply, including hearsay, and the court considers the testimony of the witnesses and any exhibits. • The court cannot consider polygraph examination, or the opinion of an expert who bases an opinion on polygraph evidence. In re M.M., 215 P.3d 1237 (Colo. App. 2009). • Standard of Proof • Clear and convincing evidence • ICWA cases require proof beyond a reasonable doubt

3. Statutory Grounds for Termination • Most common: failure to complete treatment plan • Requires 4 elements: • Child was adjudicated dependent or neglected • The Court ordered treatment plan failed • Parent is unfit • Parent’s conduct or condition is unlikely to change within a reasonable time • Others: unfitness, abandonment for 6 months or more

4. Termination with No Treatment Plan • Grounds, C.R.S. §19-3-508 (1)(e)(1) • At disposition, the court must order a treatment plan unless it finds by clear and convincing evidence that no treatment plan can be developed to address the parent’s unfitness. • Procedure • If the court makes a finding that no treatment plan is devisable, then the court must hold a permanency hearing within 30 days unless a termination motion is filed. • The court can hold dispositional hearing and termination hearing at the same time. • The court cannot hold termination hearing if there was no dispositional hearing. • Defenses? • None of the grounds for failing to provide a treatment plan are mandatory. • In re E.IC, 958 P.2d 511 (Colo. App. 1998), the court found that it may be proper for the court to adopt a treatment plan for a parent who will be incarcerated for at least 6 years given factors such as the age of the child and supportive family members.

5. Termination Process • Filing of motion • The Department or GAL must file a separate motion for termination • Must be filed at least 30 days before the termination hearing • Pretrial hearing • Setting a hearing • EPP cases: must set a hearing on the motion within 120 days of filing the motion unless good cause is shown for an extension. • Trial management: witness lists, subpoenas • Options/relinquishment counseling

6. Admissions • Relinquishment or confessing the motion? • Filing a motion or making oral record • Appeals

7. Experts- For the Defense • When? • File a motion to the court requesting the appointment of, and payment for, an independent expert after the motion for termination has been filed. • If the expert will be testifying, his or her report must be made available to all parties at least 15 days before trial.   • Who? • Paying for them • Indigent respondents are entitled to one court appointed expert at state expense • If the parent is dissatisfied with the expert’s report, he or she cannot seek another expert at state expense. • What type? • How to use them

8. Good Experts for the Defense • How do you find them? • Referrals • Court lists • Who are they? • Substance Abuse Counselors • Parenting Educators • Mental Health Professionals • Probation/Parole Officers • Case Managers • What makes an expert good for the parent? • APA Guidelines: • Guidelines for Psychological Evaluations in Child Protection Matters (APA 1999): available online at http://www.apa.org/practice/guidelines/child-protection.pdf • For more resources, see Handout 21. • Types of evaluations: • Mental Health Evaluations: psychological or psychiatric • Parental Competency Evaluation (or parent-child interactional):

9. Depositions • Who to depose? • Careful decisions about who to depose need to be made. • Rules governing: • Depositions are governed by Colorado Rules of Civil Procedure R. 26, 27, 30, 31. • How to use deposition? • Depositions can be used for formulating a theory of defense, preparing for cross examination, and impeachment material. • Paying for it: • There is a disagreement regarding who will pay for them and whether they are permitted under the CJDs. • An application has to be made to the court to approve the expense.

10. Getting Rady for Trial • Discovery • Trial notebooks • Pretrial motions • Witness selection • Client communication and preparation • Preparation and practice

11. Getting Ready for Trial, continued • Decision making between lawyer and client • Rules of professional conduct • Objectives • Method • Emotional aspects

12. Trial • What if client fails to appear? • If the client fails to appear on the day of the termination trial, the court will proceed by default. The Department may choose to proceed with an offer of proof, submit the termination report written by the caseworker, and/or call the caseworker to the stand to testify.

13. Parent as Witness- Preparation for Direct Examination • What to ask: • Walk the client through a basic social history, including early family life, adolescent development, significant life occurrences, and overcoming hardships. • Ask about motivation, parent-child relationship, and parenting experiences. • How to proceed: • Emphasize the client’s parenting ability and ability for change. The goal is to portray for the court the treatment plan through the client’s eyes, and her compliance and rehabilitation. • Be as specific as possible, and use examples that may have outside verification as well.

14. Other Defense Witnesses • Who? • Those who have experience with the client and can attest to client’s strengths and ability to appropriately parent • Service providers who can talk about client’s motivation and success in treatment • What purpose? • Background checks for non-professional witnesses • Limit inquiry?

15. Successful Defenses • Cause of action • Proof • Caselaw • Impact

16. ICWA • Burden of proof • Proof beyond a reasonable doubt • Witnesses • The expert does not need to be qualified in cultural practices or affairs unless the parent’s deficiencies have a cultural component. People in Interest of A.N.W., 976 P.2d 365 (Colo. App.1999). • Required findings

17. The Decision • At the end of the trial, and the court delivers the findings and order from the bench • Always a bad moment • How to prepare your client • What to do while the court is reciting the decision  • Afterwards: Goodbye visits and memory books

18. Appeals • Timeline • C.A. R. Rule 3.4requires that a notice of appeal must be submitted to the court of appeals within 21 days of the order terminating parental rights. • The record for appeal is due 40 days after filing the notice of appeal. • Requirements • The parent must sign the notice of appeal, or counsel must state that the parent has authorized the filing of the appeal. • Elements • Which attorney? • Typically, trial counsel handle appeals by their clients. There may be designated counsel in your county available as appellate attorneys.

19. Discussion Questions: • Are we, at times, unconsciously providing a form of “wink wink” advocacy  – where we signal to the court that although we are making this request on behalf of the client, we do not really think the request should be granted? • Are we using all the skills we have to advocate for all of our clients, or are we saving or holding back arguments or advocacy for the “really good” clients, who will be worth it?

20. Discussion Questions: • If we make the same arguments over and over, how will the court know when we REALLY mean it this time? • Are we telling each client’s story in a fair, empathetic, persuasive manner? • What success stories can we share with each other? What triumphs can we share? What tips do we have for each other?