Source:  NYS SSL 384-b Grounds for Termination of Parental Rights, Proof must be “clear and convincing”

ABANDONMENT

  • child must be in foster care or Article 10 court ordered direct care for more than 6 months
  • in the most recent 6 months there was no meaningful visitation or communication with child or agency or foster parent/ care provider
  • parent was physically and financially able – presumed unless proof otherwise
  • agency did not discourage or prevent contact – this can include parent who was court ordered to have no contact with child
  • agency need not prove diligent efforts or attempts to contact parent

PERMANENT NEGLECT

  • child must be in foster care or Article 10 court ordered direct care for more than 12 months, even if there has not been an Article 10 disposition in place for 12 months OR child has been in care for 15 of the last 22 months
  • during any particular 1 year continuous period, parent either failed to maintain contact with the child of failed to plan for the child’s future by failing to resolve the issues that resulted in the child being placed in and staying in care – (court must take into account if parent was incarcerated or inpatient drug treatment and if that hindered their abilities to visit and access services)
  • parent was physically and financially able to have contact and plan
  • the agency did not discourage or prevent the parent from visiting or planning
  • the agency offered diligent efforts to the parent to provide reunification consisting of visitation, services designed to assist the specific problems, transportation to visitation and services, planning with the parent, and information regarding the child’s progress
  • the diligent efforts may be excused if
    • the court previously issued a “no reasonable efforts order” or
    • the efforts to reunite would have been detrimental to the child or
    • the parent was incarcerated and failed to respond on more than one occasion or
    • the parent failed for more than 6 months to keep the agency advised of address (court must take into account in parent was incarcerated or inpatient drug treatment and this hindered)

MENTAL ILLNESS OR MENTAL RETARDATION

  • child must be in foster care or Article 10 court ordered direct placement for more than 12 months
  • parent is presently mentally ill or mentally retarded to the extent that they can not safely care for the child now and in the foreseeable future
  • expert witness must be appointed, attempt to examine parent and must testify

SEVERE ABUSE OR REPEATED ABUSE

  • child must be in foster care or Article 10 court ordered direct placement for more than 12 months – no minimum time requirement
  • child was severely abused as found in Article 10 or as described in statute regarding criminal convictions or
  • two family court adjudications of child abuse against parent in 5 years
  • diligent efforts by agency as described above in permanent neglect with same four exceptions available such as a “No Reasonable Efforts” finding

Mandatory TPR Petitions

Health and safety of the child is to be paramount concern !

Termination of parental rights petitions MUST be filed for regarding all children in foster care where:

  • Any foster child in care 15 out of the most recent 22 months (calculated as starting at time of finding of abuse or neglect or 60 days after temporary placement in foster care, whichever is sooner)
  • Any foster child determined by court to be abandoned
  • Any foster child whose parent has been criminally convicted of certain crimes

Termination of parental rights petitions MUST be filed for all children in the above situations UNLESS:

  • The child is in the care of a relative or
  • The agency documents in the most recent case plan a “compelling reason” why it is not in the child’s best interests to have a termination petition filed. The compelling reason information may be made available to a court. “COMPELLING REASON” can include the following types of situations:
    • Child is in care on a PINS or JD order and the review of the specific facts and circumstances of the child’s placement demonstrate that the appropriate goal is either a return to the parent or guardian or independent living.
    • The child has a permanency goal other than adoption because of the best interests of the child such as a situation where the child’s therapist feels it would emotionally harmful to the child or where a safe return to a parent is imminent.
    • The child is 14 or older and will not consent to adoption.
    • There are insufficient legal grounds for a TPR.
    • The child is in care solely on an Article 10 and the disposition is still pending and a review of the specific facts and circumstances of the child’s placement demonstrate that the appropriate goal is discharge to parent or guardian.
    • The agency has not provided the services it deems necessary to attempt to reunify unless the services were not legally required.

 If the agency is required to file the termination by the above rules but does not file, or if the court orders filing and agency does not file; the foster parents, without further order, or the law guardian at court’s direction, may file a termination petition and the agency is then obligated to join the petition. The Judge can always order the agency to file a petition for termination.

Source: NYSCCC conference workshop presentation by Margaret A. Burt, Esq., mburt5@aol.com. Copyright 2010, Reprinted with permission of the author.