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Termination of parental rights is one of the most serious family law issues either a parent or a lawyer will ever face.

Yes, we can help you with that,
but you're going to have to change.

The burden of proof in termination of parental rights cases.

A biological parent's right to the care and custody of his or her child is protected by the Due Process Clauses of the federal and state constitutions. Although the parent's right is fundamental and superior to the claims of other persons and the government, it is not absolute.

A parent's right to remain a parent continues for only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination.  The usual reasons parents lose their parental rights are abandonment and doing other bad things, which are referred to in termination proceedings as abuse and neglect.

If your are being threatened with or have suffered temporary or permanent termination of your parental rights and you want to keep or get your parental rights back, then you are going to have to change your life's circumstances to provide the best permanent home for your child that you possibly can.

We can help you protect your parental rights, but if the allegations about your being a poor parent are true, then even the best of lawyers find it difficult to overcome the worst of facts. If you want to avoid or reverse termination of your parental rights, then you are going to have to want to change.

How we can help you win your termination of parental rights case

In Tennessee, proceedings to terminate a parent's parental rights are governed by statute. Several grounds for termination are listed in Tennessee Code Annotated section 36-1-113(g), but the existence of any one of the grounds enumerated in the statute will support a decision to terminate parental rights, provided that termination is in the best interest of the child.

Parties who seek the termination of a biological parent's parental rights must prove two things: 

  1. That at least one of the statutory grounds for termination, which are listed in Tennessee Code Annotated section 36-1-113(g), exists.
  2. That terminating parental rights is in the child's best interest, considering, among other things, the factors listed in Tennessee Code Annotated section 36-1-113(i).  

No civil action carries graver consequences than a petition to sever family ties forever. Therefore, both of the elements for termination must be proven by clear and convincing evidence. To terminate parental rights, a trial court must determine by clear and convincing evidence not only the existence of at least one of the statutory grounds for termination but also that termination is in the child's best interest.

Clear and convincing proof eliminates any serious or substantial doubt concerning the correctness of the conclusion to be drawn from the evidence. It produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established.

What we can do as your lawyer in a termination proceedings is put whoever is attacking you as a parent to the maximum test of showing clear and convincing proof that their allegations of statutory grounds for termination are true and that termination of your parental rights is in your child's best interest. You, however, have to give us all of the ammunition you can to shoot at the other side's case.

To see how we and you have to work together to change the status quo, let's look at a common example of a termination of parental rights case.

One Common Ground is Substantial Noncompliance with a Permanency Plan

When a problem in a child’s home requires the child to be placed in a foster home, a plan designed to solve the problem and re-establish a child’s permanent home is called a permanency plan. One ground at issue in many termination cases is substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan. Substantial noncompliance is the term the Department of Childrens Services uses to essentially say, "The parent(s) didn't want to change things enough to make a permanent safe home for their child."

On October 8, 2009, two separate Tennessee Courts of Appeals released two separate opinions affirming two separate trial courts' decisions to terminate two sets of parents' rights for the same reason. In one case, DCS v. Amber Nicole Bennett, a couple of drug-users and dealers who lived in Shelby County, refused to give up their drugs and find a good job. They went to jail, DCS argued they failed to comply with a permanency plan, and they lost their kids. In another case on the other side of the state in Knoxville, In re Lavanie L., a drug-using, single mother, who was an exotic dancer refused to make the changes in her life necessary to keep her child and her parental rights were terminated.

The lessons from these two cases are clear. If you want to get your child back out of a foster home, then you have to make changes in your life that will improve the life of your child. What we can do as your personal and legal counselor is help you make those changes and help you convince the DCS and juvenile court judges you are serious about making and maintaining a permanent safe home for your child.

The term "substantial noncompliance" is not defined by the termination statute, but the use of the word "substantial" requires that the parent's noncompliance be "[o]f real worth and importance to the success of the plan. Trivial, minor, or technical deviations from a permanency plan's requirements will not be deemed to amount to substantial noncompliance.

In addition, the trial court must find that the requirements of the permanency plan that the parent allegedly did not satisfy were reasonable and related to remedying the conditions which necessitated foster care placement. This may include conditions related both to the child's removal and to family reunification.

The Department of Children’s Services (DCS) has an affirmative duty to make reasonable efforts to preserve, repair, or restore parent-child relationships whenever reasonably possible. Nonetheless, DCS does not have the sole obligation to remedy the conditions that required the removal of the children from their parents' custody.

When reunification of the family is a goal, the parents share responsibility for addressing the conditions that led to removal. Reunification is a two-way street and the law does not require DCS to carry the entire burden of this goal. If parents desire the return of their children, they must also make reasonable and appropriate efforts to change, to rehabilitate themselves, and to remedy the conditions that required the Department to remove their children from their custody.

Still, DCS must make reasonable efforts to help the parents rehabilitate their family situation enough to reassume responsibility for their child. DCS must exercise reasonable care and diligence to provide services related to meeting the needs of the child and the family. In making such reasonable efforts, the child's health and safety shall be the paramount concern.

What is “reasonable” depends on the circumstances of each case, but the "Seven Factors" courts use to determine the reasonableness of DCS's efforts include:  

  1. the reasons for separating the parent from his or her children, 
  2. the parent's physical and mental abilities, 
  3. the resources available to the parent, 
  4. the parent's efforts to remedy the conditions that required the removal of the children, 
  5. the resources available to the Department, 
  6. the duration and extent of the parent's remedial efforts, and 
  7. the closeness of the fit between the conditions that led to the initial removal of the children, the requirements of the permanency plan, and the Department's efforts. 

DCS will seize on any incident of noncompliance they can use to terminate your parental rights. Our job as your personal and legal counselors is to make sure no incidents occur and, if they do, to argue the incidents are not substantial. In addition, we can help you prove DCS is not helping you enough to make the changes you need to make.

The Best Interest of the Child is Paramount

The ultimate goal of every proceeding involving the care and custody of a child is to ascertain and promote the child's best interests. A court must determine the child's best interest from the child's, rather than the parent's, perspective.

Tennessee Code Annotated section 36-1-113(i) provides a list of some factors to consider in determining whether termination of parental rights is in the best interest of the child:

  1. Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child's best interest to be in the home of the parent or guardian;
  2. Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;
  3. Whether the parent or guardian has maintained regular visitation or other contact with the child;
  4. Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;
  5. The effect a change of caretakers and physical environment is likely to have on the child's emotional, psychological and medical condition;
  6. Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household;
  7. Whether the physical environment of the parent's or guardian's home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child in a safe and stable manner;
  8. Whether the parent's or guardian's mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or
  9. Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to § 36-5-101.      
We can excel as your personal and legal counselor by helping you realize what is in the best interest of your child, helping you achieve the changes that are in your child's best interest, and helping you clearly and convincingly prove to the juvenile or probate court judge that termination of your parental rights is not in your child's best interest and letting you continue to parent your child as a changed person is.

Appellate review of termination of parental rights cases

When a parent who has lost his or her parental rights appeals their case, there are some checks and balances that work respectively for and against the parent. Each of the trial court's specific factual findings are presumed to be correct unless the appellate court can be convinced the evidence preponderates against a trial court’s finding. This works against the parent on appeal.

Nonetheless, working for the parent, the appellate court must determine whether the facts (either as found by the trial court or as supported by the preponderance of the evidence) clearly and convincingly establish the elements required to terminate parental rights. Whether a statutory ground has been proven by the requisite standard of evidence is a question of law to be reviewed de novo with no presumption of correctness.

When an appellate court is reviewing a termination of parental rights based on persistence of adverse conditions, the court must determine whether DCS presented "sufficient evidence regarding its reunification efforts to enable the trier-of-fact to conclude, without any serious or substantial doubt, that the Department's remedial efforts were reasonable under all the circumstances.

Our job as your legal counsel is to prove DCS act reasonably to help you keep your child and/or DCS did not meet its burden of proof by clear and convincing evidence that grounds existed and that termination of your parental rights was in your child's best interest..

You Need a Lawyer!

The presentation of your case to a trial court or an appellate court requires the skills of a counselor at law. If you are being threatened with termination of your parental rights, then you need a lawyer. We at The Besser Law Firm can help you with that.
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