TPR and Your Lawyer

TPR and Your Lawyer
by Attorney Michael H. Agranoff


This page is intended for parents who are currently involved in a TPR trial.

I am sorry that it is so long. However, I urge you to read it.


THE NATURE OF TPR APPEALS
TPR is a parental death sentence. If you lose a TPR trial, and your kid is adopted, you are out of luck. It is true that the adopting parent may let you visit or call or send pictures, but they do not have to. So-called “open adoption agreements” are better than nothing, but they are not truly enforceable. If the adopting parent moves out of state, or claims that your visits and calls are harming the child, then no Judge will force that parent to allow visits or calls.

If you are sentenced to death in a criminal case, you have the right of appeal. If the appeal fails, you have “habeas corpus”, a legal proceeding to “collaterally attack the conviction.”

In plain language, this means that if you can show that you had ineffective assistance of counsel (IAC), you might get a new trial.

There might be other grounds for habeas in certain instances. And even if that doesn’t work, Project Innocence or reprieves may get you off the hook. You have years to try to prevail.

That is not the case in TPR.

And no matter what you do, once the adoption goes through, you are finished. You do not have the years of appeals and other hopes, as in a criminal death sentence. Since DCF moves fairly quickly on adoptions, there is no time to lose.

TPR can indeed be appealed. Such appeals are seldom successful, but they have happened. Sometimes TPR is overturned on the grounds that the evidence did not show that you failed to rehabilitate. Sometimes TPR is overturned on the grounds that the evidence did not show that DCF made reasonable efforts to reunify. Sometimes TPR is overturned because the Judge made a serious error in a ruling on evidence. That happens; but again, it is quite the exception. TPR cases are fact-bound, as lawyers say, and appeals courts seldom overturn trial judges on factual findings.

You have a better chance if you can show that you received IAC. You could then try to challenge the TPR through:

Habeas Corpus

Appeal

Motion for a new trial

However, TPR cases, at present, do not allow the right of habeas corpus. It is impossible to predict the future, but that right does not exist today (May 2008), and several experienced criminal lawyers have told me to forget it for TPR. In other words, you cannot count on it.

Neither is there a procedure for “executive reprieve”, or anything resembling Project Innocence to overturn the trial court TPR finding.

And legal aid and law school clinics, at present, show no inclination to help parents facing TPR. Why, I am not certain; but they do not.

In order to appeal, or file a motion for a new trial, you might have to show “on the record” that you received IAC.

“On the record” is a legal concept meaning that the evidence has to be brought out and recorded at the trial itself. You need testimony or exhibits or both. You cannot simply “allege” that you received IAC. There has to be some documentation.


WHAT CONSTITUTES IAC
There is, at present, no Connecticut case in which a new TPR trial was granted based on IAC. However, fortunately, there is a 2007 case from the Arizona Court of Appeals, called Donald W. That case may be persuasive evidence in a Connecticut court.

Without going into all the details, the Arizona court said that:

Habeas corpus criminal standards are not appropriate. What counts here is whether or not the parent, who wishes to preserve his or her family integrity, has the opportunity to be heard at a meaningful time in a meaningful manner.

The parent’s lawyer must provide this opportunity to be heard meaningfully.

Technical criminal standards should not apply. In TPR, the parent does not get a public jury trial in the first place. Also, if the lawyer was ineffective, the parent could not possibly get a fair trial.

What must the lawyer do? At minimum, the Court noted, the following:

Actively participate in every critical stage of the proceedings;

Investigate the procedural and factual history of the case;

Have constant contact with the parent;

Have contact with witnesses prior to the hearing;

Review all case documents, and the entire [DCF] case file;

Make reasonable efforts to get witnesses in support of the parent.

The Court made it clear that the above is not an exhaustive list. Based on what we know today, the Court might have added:

Use computer software when necessary to prepare a case chronology from multitudinous documents. Normally, in TPR, this is necessary.

Prepare the cross-examination of DCF witnesses. Include not only substantive issues, but investigate possible witness bias, which could be based upon financial ties to DCF.

Challenge all DCF documents that contain hearsay evidence. Try to keep such documents out of court whenever possible.

Prepare your own witnesses thoroughly, for both direct examination and cross.

Use every effort to get your favorable documents introduced.

Have a paper trail from the social worker, at reasonable intervals, listing precisely what the parent is doing or not doing that is inappropriate. This prevents you from being bagged at trial. Never, but never, rely on verbal statements in contested matters.

Attend as many DCF conferences as possible. Keep the parent away from situations in which he or she may be baited by DCF or service providers.

Ensure that the child’s lawyer visits the child, sees parent/child interaction, and is independently involved in the case. File a motion if needed.

File as many preliminary motions as are needed to ensure a fair trial. Your lawyer can explain this, but they include: not letting a psychologist tell the judge what the ruling should be; splitting up rehabilitation and best interest issues, so as not to prejudice the court; trying to stop hearsay evidence; and others.

Ensure that the psychological evaluation was fair, in terms of: questions; documents given to the evaluator; collateral contacts; use of valid tests (caution on projective tests and screening tools). If possible, try to get the court to pay for an independent evaluator.

Getting all the materials that you need from DCF, and never accepting stonewalling. File motions if administrative channels (up to the Commissioner) close up.

Ensure that you get every single piece of evidence that DCF has. Get the same releases and check the actual information carefully.

And this list, of course, is not exhaustive.

The point is clear: effectively representing parents in TPR proceedings is difficult. To my mind, it is the hardest part of DCF defense law. That is why I advised that the best defense is to avoid TPR in the first place. But sometimes that doesn’t work.

WHAT HAPPENED IN THE ARIZONA CASE
In the Donald W. case, the mother got lucky. Her lawyer was so incompetent that he actually argued with the mother on the witness stand. The mother had the presence of mind to testify that her lawyer had never met with her, except briefly in the courthouse, and had not bothered to procure evidence or challenge the State’s evidence. He even criticized the mother for not asking him to call witnesses! He also noted, after the trial started, that he really didn’t even know the State’s grounds for filing TPR. It almost seems comical, but he did not even tell the mother of the court date; she had to call the court herself.

This could be the stuff of a Monty Python movie. Seldom, in real life, has a lawyer so put his own foot in his mouth. However, there are many cases in which the lawyer takes no meaningful part in the TPR case. The Story of “Nicole”, in the TPR cases, is but one example.

The mother was granted a new TPR trial. I have no idea how it turned out, or what happened to her original lawyer.

WHAT CAN YOU DO ?
As mentioned earlier, the best way to win a TPR is to avoid it in the first place. If it happens, then you must work closely with your lawyer, and should have been working with your lawyer since the original neglect case.

But what if your lawyer will not work with you?

If your lawyer will not work with you, then losing the TPR is a virtual certainty. It is not 100% certain, but it is foolish to take chances, especially as the time for appeals is limited.

Your best chance, in that case, is to be sure that you testify in court as to IAC. However, this is not easy, since it is an emotional matter, you are not a lawyer, and your lawyer may be prepared for this. Also, the Court might not believe your testimony, and might conclude that you are “minimizing” or “shifting the blame.” It would help if you had documents or exhibits to introduce into evidence to back up your testimony, but non-lawyers often do not know how to do this, or to counter State objections to the introduction of those documents.

Nevertheless, if you are involved in TPR, and if your lawyer won’t work with you, then you had better be prepared to establish IAC; and use that as the basis for an appeal or a motion for a new trial.

CAN WE HELP YOU ?
Most people in this predicament cannot afford private lawyers. And if you hire one at a late date, that lawyer will need a postponement in order to get ready for trial. DCF will object on the grounds that the child needs permanency. It’s a difficult fight.

What our office can do is to help you prepare for the IAC defense. We will meet with you, hear your version, and offer detailed suggestions for your own testimony. However, this will only work if you have all the Court and DCF documents, and witness and exhibit lists, that you are entitled to. Therefore, you must either have these documents, or get them from DCF or your lawyer. We can also help you with that.

In effect, we will provide a second opinion to persons threatened with TPR. If you cannot retain us for trial, then the second opinion, at a reasonable charge, is limited to helping you to get a new trial on IAC grounds; should that be appropriate.

Admittedly, it is a long shot. It is up to you.

SUMMARY
A TPR is a parental death sentence. Appeal time is limited, and any appeals are impossible after the kid is adopted. If your lawyer is not working with you, then your major hope is a new trial with a different lawyer. That requires you to demonstrate ineffective assistance of counsel, which is not easy. We may be able to help in such cases.




©2009 The Law Offices of Michael H. Agranoff
99 Stafford Road, Rt. 30
Ellington, CT 06029
Phone: 860-872-1024
Fax: 860-871-1015
Email: attymikea@agranofflaw.com

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