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Lessons from my first contested termination of parental rights prosecution trial

Last week I represented a mother and step-father in a contested termination of parental rights(TPR)/step-parent adoption case. I have been a licensed attorney for over twenty-five years–the last twenty of which I have primarily focused on family law. I have successfully defended a couple of TPR cases brought by DSS. I have filed contested TPR cases that settled when the biological parent voluntarily relinquished parental rights prior to trial. I have even tried a custody case in which the other party voluntarily relinquished his parental rights in the midst of trial. Thus, preparing for trial, I was shocked to realize that it would be my first such case prosecuted to verdict.

Meanwhile, in the months leading up to trial, a few of my lawyer colleagues lost TPR trials they were confident they would win. Moreover the appellate courts have recently overturned, in published opinions, a few termination of parental rights granted by the family court. That the Defendant in my TPR trial was incarcerated was small comfort: one of the TPR cases lost by my colleague and one of the TPR cases overturned by the appellate courts also involved incarcerated Defendants. Thus I ruminated over how to maximize my clients’ chances of a successful result. From seeing how other attorneys lost these TPR trials, I learned a few lessons. I learned one more in drafting the orders after the court granted the TPR and adoption. Here’s what I learned:

1) Willfulness is an important element of failure to visit and failure to support grounds

The failure to visit or support for six months grounds for TPR listed at S.C. Code § 63-7-2570 (3 & 4) both contain a requirement of willfulness. Further, TPR actions carry a higher evidentiary burden–clear and convincing evidence–than most family court cases. In this regard TPR actions, especially those involving failure to visit or support grounds, are much like contempt actions–which also require proof of willfulness by clear and convincing evidence. The goal in preparing a TPR prosecution isn’t only to present evidence of a ground, but to present overwhelming evidence of willfulness. Simply providing evidence of failure to support or visit is insufficient.

2) Proving willful failure to support or visit may be even harder when the Defendant is incarcerated

One might think that proving failure to support or visit when the Defendant is incarcerated is easy–but the problem often becomes proving willfulness. While a Defendant’s continued criminal conduct after the Defendant becomes aware the child was conceived is probative of a settled purpose to forgo parental duties, criminal conduct pre-dating knowledge of the child’s conception is not a basis for finding willfulness. To obtain the termination of an incarcerated parent’s parental rights based on failure to visit or support, one should highlight such behavior that pre-dates the incarceration. When possible, one should also try to demonstrate that this parent had some ability to support or maintain contact with the child while incarcerated. If that parent has been supporting and maintaining contact while in prison, it might be best to investigate additional grounds that might support TPR or forgo bringing the case.

3) The best interests element is a custody trial writ large

It is not enough to prove a TPR ground to obtain a TPR. One must also prove–again by clear and convincing evidence–that termination of parental rights are in the minor child’s best interests. This is one reason so few successful TPR actions are brought when there is no one ready to adopt the child. A TPR/adoption trial is a custody trial in which one is trying to prove that the child would be substantially better off being raised by the prospective adopting parent than by the biological parent.

There is a constitutionally protected and jurisprudentially prudent recognition that parental rights should not be terminated simply because someone else might objectively be a better parent–or even more closely bonded to the child. To break the bonds that biology creates between parent and child is not something a court does without excellent reason. One should be prepared to show the court that the child’s life would be substantially better off by severing this biologically-determined bond and allowing the child to create this bond with another. Anything that would be relevant in a custody case is relevant in a TPR/adoption case. Treat the best interests element as a custody case.

4) Do separate orders for the TPR and the adoption

This lesson came to me as I was reviewing the trial judge’s memo ruling. Decrees of adoption are often shown to schools, medical providers, and other public agencies that need to know who the child’s legal parents are. It is something family members might want to see. When the child reaches majority, the child may even want to see it.

Meanwhile, an order terminating parental rights generally doesn’t need to be seen by anyone but the parties, their attorneys, and the clerk of court. However that order needs to contain numerous factual findings that justify the TPR grounds and the best interest finding. Almost by definition, many of those factual findings are unpleasant facts. In contrast, once parental rights have been terminated, the factual findings to justify an adoption are typically few and not unpleasant or unduly revealing.

The trial judge made numerous factual findings about my clients, some of which contained information they might not want the world to know. There were other factual findings about the Defendant that he certainly wouldn’t want being revealed. Draft one order for the TPR and the adoption and the decree of adoption and all these factual findings get revealed to anyone looking at the decree of adoption. Draft separate orders and the decree of adoption can be shown without embarrassment.

The lesson: for any contested TPR/adoption case draft one order for the termination and another order for the adoption.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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  • Bernie

    This is very good information. Thanks for sharing.

  • Your suggestion to prepare two separate orders interests me. Why would the adoptive parent need to show anyone the order after the birth certificate is amended? Isn’t that the point? I am not suggesting you are wrong, just wondering if I am mistaken in assuming the new BC takes care of everything. Of course it is taking longer and longer to get new BC’s these days, but I guess that issue is for a different post.

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