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

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.

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  • 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.

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