It can be counterproductive to fight grounds in termination of parental rights cases

Posted Wednesday, January 28th, 2015 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

A party bringing a termination of parental rights (TPR) case must prove, by clear and convincing evidence, both a statutory ground under S.C. Code § 63-7-2570 to terminate parental rights and that such termination is in the best interests of the child. One can defend TPR cases by defending the ground(s), the best interests element, or both. With rare exceptions attorneys defending TPR cases chose to defend both. This might be counterproductive.

While it is theoretically possible to bring a TPR case to trial while the child is still living with the parent, I have never heard of this happening–likely because it would be hard to show that a parent cannot safely parent the child when no one has bothered to remove the child from that parent’s care. Thus, the child is not living with the parent when TPR cases go to trial. To defend the best interests issue, a parent wants to show that the child can safely be returned to his or her care–in effect that the parent will do better if given another chance. That parent’s sincerity in arguing this claim is a crucial element of this defense. Anything that diminishes that parent’s credibility diminishes this defense.

Spurious defenses to TPR grounds undermine this credibility. Certainly if a parent has a solid defense to TPR grounds one should make that defense. However certain TPR grounds do not typically lend themselves to strong defenses. For example, the ground that “[t]he child has been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months” is basically a strict liability ground that can be defended only if the delays in getting to trial were mostly caused by the Department of Social Services or the court.

The grounds of failing to visit or financially support the child for a six month period do require wilfulness. However a parent who failed to visit or support his or her child for six months, and who then makes flimsy excuses for that failure, is demonstrating to the court that he or she likely lacks the commitment necessary to parent a child if that child is returned.

When the evidence of a statutory TPR ground is overwhelming it is counterproductive to defend the TPR on that basis. Better to have parents acknowledge the ground, sincerely apologize for that failure, and explain how they have overcome the difficulties that gave rise to this ground–while demonstrating how they have changed in ways that now enable them to adequately parent the child.

A parent’s lack of sincerity or insight can be fatal to demonstrating that the child’s best interests are in the child’s return. Fighting an obviously losing statutory ground is not zealous lawyering; it’s bad lawyering.

12 thoughts on It can be counterproductive to fight grounds in termination of parental rights cases

  1. Dana Adkins says:

    Also, remember there’s more than one way to skin a cat. I was involved in a very nasty DSS case that it didn’t appear we were going to win (although, I still believe we should have). We ultimately negotiated an agreement in mediation, whereby DSS agreed to dismiss the TPR action, so long as the foster parents retained custody. My client was allowed to have supervised visitation and continued to pay child support.

    A year after the DSS case was closed, with DSS out of the equation, I helped Father negotiate a subsequent agreement with the foster family to lift the supervision restriction, which the Court approved. My client now has regular every other weekend and holiday visitation, much like he would in a divorce. It’s not ideal but it was certainly a better option that risking TPR.

    The lawyer in me very much wanted to try that case. I firmly believe we should have won, but that doesn’t mean we would have. If we lost, my client would never have seen his children again. With that much on the line, it was a wise decision to find another way out.

  2. Carole says:

    This is the same case that I am having n I refuse to sign my rights over bc my daughter is my world and on top of that my 2nd time to prove that I am a wonderful mother. I know I have made 1 of biggest mistakes by trusting men any around her period which will never happen again.

  3. Jennifer says:

    I’m going through the same I was on drugs now I’m clean and the judge still wants to take my rights what do I do

  4. Kandice says:

    Me and my boyfriend are going through a tpr right now with our 17 month old son that has been in foster care since he was released from the nicu and the hospital they never gave us a chance to take care of our son before they put him in foster care.y

    1. says:

      Same here! How can they say I’m not a fit parent when they have never even let me be one! I have never even gotten to bring my one and only baby home from the hospital EVER. How can they just take my first baby away from me from the NICU and just literally steal him and say I cannot have him? They have even told me over and over how good of a mom I am to him and how much I care about him and all of the things I do for him and how they have absolutely no worries when it comes to my ability to take care of him. BUT I failed one hair follicle test so they literally STOLE MY FUCKING BABY FROM ME!!!!! Being a mom is the only thing I wanted to do in life. It’s been over a year now and I still feel like I’m dying every single day and I do not want to live anymore, there’s no point in living, this can’t be happening, there’s no way this could possibly be allowed to happen to people and their children. THIS HAS DRIVEN ME CRAZY ITS SERIOUSLY INSANE

      1. Judy says:

        Reading your story breaks my heart! I tried to reach you by your email but couldn’t get in touch. Please don’t give up! If you need some support, my mom went through years of court cases with DCF fighting for reunification. I am here to help you out however I can

  5. Chelsea coakley says:

    My baby’s father and his mother had emergency custody. He died in July
    I had filed to ask the judge to grant me custody to take my 6 year old to a program for women and children. To prevent that being heard the grandmother filed tpr in her county. I have stable housing, job and I’m clean. Can I filefof visitation in her county? The tpr doesn’t hsvr a court date yet

  6. Angela landolfi says:

    how can you do an apeal on a tpr in north carolina or what do you have to do to win it

  7. Amy says:

    Can you appeal a tpr

  8. Dawn says:

    I am about to start my tor proceeding. My son’s were 3 and 1 1/2 I have had a court order that states I got one hr visitation at least every week. That was 3 yrs ago the father has gotten to go on vacations, keep them every weekend, pretty much gotten to see them when he wants even though him himself has struggled with addiction. Did I mention it was his cousin who had them. They were took after we had went to treatment center and I had been clean over a year but because at the time I was on subs and had been out days withdrawing I relapsed. One drug test after all the soberity and effort they were took and given to the cousin. Did I mention these people had called dss everyday even when I was in a supervised facility making false claims against me. DSS wouldn’t give them to my brother where I wanted them to go who was married and between him and his wife had one ticket compared to the cousin and her bf (a drunk) who had drug fraud duis and so on. Barely have I gotten my court ordered one hour I had nothing not a pot to piss in after losing the boys I gave up on everything and lost the apartment I had had with the boys everything. Two yrs ago I got attacked by 5 pitbulls while walking the only thing I swear that other then God helped me hold on until help arrived was the love for for them and the thought of never getting to see them again. Fast forward I now have a home, car, everything I wanted except now they are trying to take my rights. Yes I got some bad charges due to a relapse which occured after I was not allowed to see my kids over a month. I don’t do good not getting to see my boys. Did I mention she only pushed this because I had my lawyer file a motion to hold her in contempt for not letting me see my kids against a judge signed court order. I just want to know my chances I couldn’t imagine a world without my boys my lawyer says 50/50 it would come down to the best interest of my boys. How could these people possibly explain to the boys who in their eyes I’m perfect I’m mama I could do no wrong that they couldn’t ever see me again how is that beneficial to my kids? Sorry the post so long I have no one that understands what I’m feeling, the consent sorrow and heartache.

  9. Kevin Vaughn says:

    Are there any precedents of overturning a TPR ruling in South Carolina?

    1. Yes. You can find discussion of some of those precedents in my blogs.

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