Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, April 1, 2019

Using the Ruth Bader Ginsburg strategy in Termination of Parental Rights Appeals

If you weren't a fan before  "On the Basis of Sex" was released in December 2018, or before the RBG documentary came out in May 2018, or before  My Own Words was published in October 2016, by now we all know how Ruth Bader Ginsburg did it.   As explained here, she started from zero, when the Supreme Court had never invalidated any type of sex-based law, and had rejected every challenge to laws treating men and women differently.  "By carving out incremental spaces for women (and men), over time Ginsburg established a bedrock of precedent that legal minds still reference in the fight for equality." One case at a time, she managed to change the court's perspective on sex discrimination: "Ginsburg’s precedents were compounding, as she helped American law move toward a world in which gender was no excuse for treating people differently."

A dear friend and colleague who works exclusively in the juvenile court system here in Missouri recently asked me to join her on her quest to follow the RBG Method in termination of parental rights cases.  I thought well, Justice Ginsburg was once upon a time an attorney with a strategy.  Here's the plan; apply it as you see fit. 

I.     Identify a current law, the prevailing interpretation of which you want to change.  

Termination of Parental Rights in Missouri is purely statutory.  The statute itself is long, complicated, and detailed.   One of the following grounds for termination without consent of the parent must be proved by "clear, cogent and convincing evidence": (1) abandonment; (2) abuse or neglect; (3) the child has been under the jurisdiction of the juvenile court for at least one year, and the conditions which led to the assumption of jurisdiction still persist; (4) the parent is guilty of a felony violation in which the child or any other child in the family was a victim; (5) the child was conceived as a result of rape;  or (6) the parent is unfit to be a party to the "parent-child relationship."  Each of these grounds requires a showing of specific facts and circumstances that constitute "clear, cogent and convincing evidence."  Second, the statute requires proof by a preponderance of the evidence that termination is "in the best interests of the child."  Given this level of detail and box-checking involved, your average bear might think that TPR cases leave little room for judicial discretion, and require strict and literal compliance with the statute. 

But in 2016, the Jackson County, Missouri Family Court developed a problem.  In the years 2010 through 2015, an average of 138 new termination of parental rights cases were filed.  In 2016, that number jumped to 449, because "in the Fall of 2015, the Juvenile Officer identified a number of cases with a goal of TPR lacking a petition for termination.  A special work plan was constructed and these cases were filed in 2016, resulting in an unusually high number of TPR petitions filed."  In 2017, 369 new TPR cases were filed, down by 80 from the prior year, but still over 2.5 times the average of the six years prior to 2016.  In  August 2016, the Family Court Division of Jackson County issued an administrative order implementing a case management system for TPR cases, "to create a more efficient, predictable system in order to achieve more timely case dispositions, reduced waiting times and more meaningful appearances for litigants, attorneys, and the Court, thereby promoting the timely administration of justice."   The new system requires that a Permanency Hearing take place within 12 months of the child coming under the court's jurisdiction, where the court may determine whether the Children's Division provided a compelling reason that a TPR petition is not in the best interests of the child.  A post-permanency plan review hearing must be held no later than six months after the Permanency Hearing, and if the court determines that the permanency plan is termination of parental rights, the court "shall order the Juvenile Officer or Children's Division to file a Petition for Termination of Parental Rights" within 90 days.  Then, the case must be docketed no later than 30 days after the TPR Petition is filed; and the court may appoint an attorney to a party who is financially unable to hire an attorney.  If TPR is contested, the case will be scheduled "for final trial/disposition within nine months after the case is transferred. . . ."  No continuances shall be granted "except for compelling cause." 

The end result of this new efficient case management system, according to my colleague, is a TPR Factory.  Cases are rushed through the court system, and  Judgments more often than not terminate parents' rights, but without proof of grounds by "clear and convincing evidence," and without proof by a preponderance of the evidence that termination of a parent's rights is in the best interests of the child.  So, how to fix it?

II.   Find a case with really good facts that emphasize the inherent merit in your argument, and bring them to the appellate court's attention.

If a parent has abandoned a child, that parent may repent his or her abandonment, which is determined by a parent's intent, which in turn is decided by the court's review of "actual or attempted exercise of parental rights and performance of parental duties following the abandonment."  However, I have yet to find any recent TPR cases, where the court examined the parent's behavior both prior to and after the filing of the TPR Petition, and determined that the parent's rights should not be terminated because the parent has "repented his or her abandonment."  Rather, the trial courts appear to consider behavior that occurred after the Petition was filed as "token" efforts, and view "after the fact" correspondences between the parent and child "with great hesitancy." My colleague seeks to change this interpretation of the statute, which she believes permits courts to terminate parents' rights without clear, cogent, and convincing evidence.   

V. W.  spent many years in active drug addiction, and did not deny that she had previously abandoned her child, who was taken into custody at birth when he tested positive for illegal substances.  After the child was taken into custody, V.W. never provided  any financial support for the child, and the court  entered a no-contact order.  After the TPR petition was filed, V.W. found out she was pregnant again, and decided that to turn her life around.  Over the next two years, V.W. participated in every service offered to her, stopped using drugs, moved into a halfway house, finished her education, got a job working in the addiction field, and gave birth to and parented the second child.  No witnesses at trial recommended termination regarding the first child; but her rights were terminated regardless.  On appeal, the Court of Appeals found among other things, V.W. had not repented her abandonment, because the evidence showed only "short-term improvements" which occurred after the filing of the termination petition.

We lost that one. 

III. Find a case with even better facts and try again. 

 J.C. had not participated in the case when his child first came under the juvenile court's jurisdiction.  He became involved in the case five months before the TPR Petition was filed.  Per the social services plan, J.C. attended and completed a batterer's intervention course, paid child support, and visited the child regularly.  He found employment and an appropriate place to live, and again no witnesses testified that his rights should have been terminated.  Nevertheless, the court found that because "almost all of the father's actions that might lend some support to a finding that he has repented his earlier abandonment of the child have come after" the petition was filed; these actions deserved “little weight."  The trial court terminated J.C.'s rights.  

We filed the brief in that appeal last month.  Hopefully, maybe this time with slightly different facts--the main difference in this case being the father's payment of child support and visits with the child--the court of appeals will see the worthiness of our argument that a parent's efforts to repent abandonment after the Petition is filed, should not be automatically viewed as token efforts deserving of little weight in a court's decision to terminate a parent's rights.  Interestingly, my colleague was chatting with an appellate judge recently, who told her that he just didn't see very many TPR appeals.   

What that tells me, is that a court's traditional understanding of a legal issue will change only if someone challenges the validity of that traditional understanding.  We know that the Supreme Court just hadn't considered that gender-based discrimination was wrong, so one case at a time, Ruth Bader Ginsburg methodically changed that thinking.   We may not be arguing in front of the Supreme Court, but here in this pond, my fellow fish and I are working towards the appellate court's coming around to the idea that perhaps there is something wrong with the way this state determines whether and when parents should lose their parental rights. 

The viewpoint is perhaps idealistic, but the goal feels possibly reachable.  Tally-ho. 

 

https://lawprofessors.typepad.com/appellate_advocacy/2019/04/using-the-ruth-bader-ginsburg-strategy-in-termination-of-parental-rights-appeals.html

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