Dallas Divorce Lawyer Blog
Understanding the standards used to make a decision when a CPS termination has been started can be crucial. Whether you are attempting to adopt through foster care or you are facing a termination hearing yourself, understanding the way the judge is going to make their decision is very important. Many people have misconceptions about the rights a parent has to their children and, for a variety of reasons, many people have a mistrust of the legal system when it comes to deciding where a child should live and who should have the right to see a child.
Depending on who you talk to, some people feel that courts are too quick to take children away and it also seems that an equal amount of people feel that courts take too long to terminate parental rights. The Texas legislature has attempted to strike a balance in the standards used to make decisions in a termination hearing between these two complaints. This blog post is going to attempt to break down the often complicated standards used when a judge is faced with the task of deciding whether or not to terminate parental rights.
What standard is used in a termination hearing?
The short answer is that the court is supposed to be looking at the best interest of the child when deciding whether to terminate parental rights. This is the same standard that courts use to make most family law decisions. However, when it comes to a termination hearing, the court is supposed to be using a higher burden of proof than the usual “preponderance of the evidence” used in family law and they’re supposed to use a “clear and convincing evidence” standard. These two terms are just legal jargon to most people, but they do make a difference when it comes to the power the judge has in a termination hearing. When using a preponderance of the evidence standard a judge has a very large amount of discretion and will hardly ever have a case sent back for insufficient evidence. Basically, any evidence at all that goes in favor of the judge’s decision will protect them. When it comes to a clear and convincing evidence standard an appellate court is going to use greater scrutiny when evaluating the evidence used to make the decision. The appellate court will actually weigh what evidence was presented to make sure that the judge had enough evidence to make their decision.
When deciding what is in the child’s best interest the court is not supposed to consider what would be best for the parent, but only consider the child’s needs and well-being. Additionally, there is a list of factors that courts look to called the “Holley factors” that courts are supposed to use, but the courts have frequently stated that the list is not a complete list of things that can cause a parent to have their rights terminated. Even if most of the Holley factors weigh in favor of a parent keeping their child, the court is allowed to terminate if only one factor weighs heavily against the parent. For example, failing a drug tests alone or refusing to cooperate with a CPS plan can weigh so heavily that it has been held to be enough to terminate parental rights. There are certain crimes that are specifically laid out as ground for terminating parental rights as well.
Are there any special protections in a termination hearing?
In a termination hearing, as was explained above, there is a higher burden of proof required. Additionally, because the hearing is so serious, the court will appoint an attorney to someone who cannot afford one. The attorney in a termination hearing is also held to a standard that requires them to do the minimum amount of work so that the person having their rights terminated has a fair trial. The court will give attorneys a lot of deference when it comes to whether they were ineffective or not because there are some strategies that may turn out to be a bad idea, but that doesn’t necessarily mean that the person wasn’t given a fair trial. If an attorney does not do anything for a case or misses very serious deadlines the court will likely find that the attorney was ineffective and allow the person another trial to make sure it is fair.
The state and CPS have various resources for parents to use to help guide them through the CPS process. Hiring an experienced attorney can be very valuable in ensuring that you do not miss important deadlines and that you are putting your best foot forward for your case. If you have any questions regarding a termination hearing contact Guest and Gray and we can schedule a time to talk to you about your case.