Pleading a termination of parental rights case

While I don’t profess to be the definitive expert on the subject, what follows are some things I have learned from trying these cases over the past six years, through trial and error. I hope that you will find something helpful to you in your upcoming trials.

The scope of your trial (not to mention your service requirements) will necessarily be dictated by the different grounds in your original petition. On the most basic level, you will have to prove two things. You’ll always have to prove that termination of the parent-child relationship is in the child’s best interest. While there are numerous factors to consider when determining that, you can get by with a bare assertion that termination is indeed in the child’s best interest. This leaves you with the task of choosing and pleading what conduct the parent engaged in (or failed to engage in) that justifies the lawsuit. §161.001 of the Texas Family Code provides a list of the possible grounds that satisfy this element of your case.

I typically plead not only the grounds that fit my case at that time, but also any grounds that will likely become grounds at trial. For example, in a “crack baby” case, you will obviously want to plead that the parent engaged in conduct that endangered the child under §161.001(1)(E). You’d also probably want to plead a ground listed under §161.001(1)(R), namely that the mother was the cause of the child being born addicted to a controlled substance. However, you may also want to plead the abandonment grounds under §161.001(1)(A), §161.001(1)(B), §161.001(1)(C), or §161.001(1)(G). You may also plead failure to support in accordance with the parents’ ability under §161.001(1)(F); constructive abandonment under §161.001(1)(N); failure to comply with court-ordered services under §161.001(1)(O); or the failure to complete substance abuse treatment under §161.001(1)(P).

Please note, however, that ethically you cannot file frivolous pleadings without some good-faith basis. Obviously, you should not allege that the parent has been convicted of murdering the other parent under §161.001(1)(T) unless you have some good-faith basis to support your pleading (and no, difficulty in serving the father doesn’t count). However, you can use common sense. My experience has been, for example, that many people who use cocaine while pregnant will not comply with services, will not visit the baby, and will continue to test positive for drugs after they go to treatment (if they go at all). As such, you will need to plead those grounds from the outset if you want to be certain you can put proof of those grounds on later. Similarly, in RAPR (Refusal to Accept Parental Responsibility) cases, you can pretty much imagine that if a parent is bringing her child to CPS for placement in foster care, she might not be all that committed as a parent, so you’re probably safe pleading the grounds that the parent will not pay the court-ordered child support, will not follow the court-ordered services, has constructively abandoned the child by not visiting, and any other grounds that logic dictates may come up in the future.

Further, in every case, plead that the parents executed a voluntary affidavit of relinquishment under §161.001(1)(K). Fortunately for these children, parents who engage in behavior likely to bring them into contact with CPS are also fairly chomping at the bit to relinquish and get on down the road, free from the burdens of involvement in a CPS case. Even in situations where parents may initially act as if they want their child returned, those parents may determine later that the child is too much trouble. So you need to plead the voluntary relinquishment ground to prove it later.

Don’t worry about filing a petition with grounds that you only believe will come to fruition. While opposing counsel can certainly challenge your pleadings through a special exception, you are probably not going to have any filed against you. I haven’t seen one yet. However, if you are hit with one, simply amend to pare the pleadings down to comport with the facts as they then exist, knowing that you will need to keep an eye on the case and amend in accordance with the facts as they change over the course of the case.

In cases regarding older children (i.e., teenagers), you may not be looking at termination, given their ages, but that doesn’t mean you should forego pleading termination grounds without giving some thought to the matter. Relatives have many motivations to adopt, ranging from the altruistic sense of familial commitment to the cynical desire to claim the subsidies that accompany adoption. Parents are often agreeable to executing a voluntary affidavit of relinquishment if they know that Aunt Sally or Grandma will adopt. Additionally, if you don’t plead termination initially, once the parents are served and the case implodes, you will need to re-serve them with citation if you amend your pleadings to include adoption grounds. You avoid this problem by pleading termination in the original petition. This is important, as it is common for these parents, once they have left the building, to be very hard to locate again.

Which brings me to a major practical consideration that underlies all pleading decisions: the service of the citation. Serving is often more difficult than it should be, particularly when dealing with presumed or alleged fathers. It is not at all unheard of to have three, four, or five men named as alleged fathers in a single case. Initially, when you begin to do this work, that may surprise you. Later, you will begin to realize that you just aren’t getting out enough.

It is difficult for CPS caseworkers to justify taking time to look for some guy (or guys) who very likely know the mother was pregnant but do not want to accept the responsibility for their part in creating a child. It is an understatement that caseworkers are overburdened. They have way too many cases that need attention on their desks. However, you must make certain that your caseworker uses due diligence in trying to locate the fathers. Many times, mothers will say they doesn’t know where the fathers are. That may be true, but your inquiry cannot end there. I have advised our caseworkers to look for these fathers as if they owe us money. A lot of money. Putting aside what that says about how society values our children, I suggest to caseworkers that they need to ask a mother not only where dad is but also:
•    Does she have any identifiers on him (SSN/DOB/TDL)?
•    Where did he last live?
•    What were his favorite hangouts?
•    What mutual friends do they have?
•    What are his mother’s and father’s names?
•    Where did he last work?

Any information you obtain must be investigated. For instance, if you locate the paternal grandmother, ask her the same questions. In addition, check the county jail and the jails of surrounding counties, local phone books, and the Diligent Search Unit in Austin.

With respect to the phone book, consider sending out an “I’m-not-saying-you-are, but-you-may-be-the-father-of-a-baby” letter to anyone with your guy’s last name and first initial. In your letter, be sure to advise the recipient to contact you. Further, tell him to contact you if he is not the father but knows who might be. It is only after doing all of the above that you have enough information to obtain an Affidavit in Support of Citation by Publication that will withstand a challenge from someone who later appears. Understandably, caseworkers hate doing this much work to locate a guy who obviously doesn’t want to be located, let alone have anything to do with his child, but you don’t want a lack of diligence at this point to ruin your case later.

In conclusion, there isn’t one right way to plead a parental rights termination case. Generally, you want to plead it broadly enough so that you are not boxed in at trial because you didn’t anticipate a particular basis for termination or because not everyone has been served properly. But I hope this article has provided you with some help so that your trials are not filled with errors.