If you are a parent involved with DHS/Juvenile court, this may be a difficult post for you to read. It’s also probably worth repeating that blog posts generally, and this one specifically, are not legal advice, and that every case (including yours) is different. But I thought it was important to share this with you. 

If you are unable to do what DHS and the court are asking you to do, within the time frame required by the law, the county attorney’s office will likely file a petition asking the court to terminate your parental rights (“TPR”). This does not mean that the court believes you will never be able to do those things; it’s just that at a certain point, we have to start focusing on the child’s need for a permanent, stable home. We cannot allow them to live in limbo indefinitely, because that kind of uncertainty is not good for kids. 

Everyone involved in the process, whether attorneys, DHS workers, FSRP workers, or the court understands how painful this can be for everyone involved. It’s true that most of us have not personally experienced this struggle (though there are those who were involved in the system as a child). However, we’ve seen it happen often enough that we are certainly not oblivious to it. So we do not take a TPR lightly. And we still want you to continue to try to fix the situations that brought you to juvenile court, whether it was a substance use disorder, domestic violence, mental health, or something else. Part of the reason for that is because there is a possibility (not a requirement) that even after the TPR, you might be able to have a relationship with your child(ren). But that can only happen if you are doing well, and probably with a therapist. Because we don’t want to traumatize your child all over again.

When your case is open, you are in state district court. The court system is like a hierarchy; district court is the first level. Above that is the state Court of Appeals, and above thatis the state Supreme Court. After the TPR is granted by the district court, you have a right to appeal that decision, typically to the Court of Appeals. Most of the time (but not all of the time), the district court’s decision is affirmed. In other words, the Court of Appeals said the District Court made the right decision to terminate parental rights. Although your attorney can’t guarantee any particular result, she can tell you whether she thinks you have “a chance” at getting the decision reversed (i.e., changed). If the Court of Appeals agrees with the district court, you can still ask the Supreme Court to look at the decisions and issue its own ruling.

Keep in mind that neither the Court of Appeals or the Supreme Court will usually make a separate decision; they will simply affirm or reverse the lower court’s ruling. If they affirm the lower court’s ruling, the ruling stands. If they reverse it, it will typically go back down to the district court to allow them to correct whatever legal error it was determined to have made. That does not necessarily mean that the ultimate decision will be any different. It just means that a higher court thinks the lower one made a mistake that might have affected the outcome, so the district court needs to take another look after they have corrected the mistake.

Again, you have the right to appeal most of those decisions, though not indefinitely or repeatedly. But as the saying goes, “just because you can, doesn’t mean you should.”

Some parents appeal because they somehow think this demonstrates their love for their kids. As though they will never stop “fighting” for their kids. And if the court has made a mistake, that might be the right path to take. But I don’t think parents realize that notappealing can also be an act of love.

You know how pregnant women sometimes give up their children for adoption because they know that they cannot give their child the life he or she deserves? They do that not because they don’t love the child, but because they do. They put the child’s best interests ahead of their own desire to raise their child, because they know the child will benefit. It’s harder in a TPR case, because the parent has raised the child, sometimes for a number of years, but it’s the same concept. Recently, I heard of a woman who was incarcerated who made the statement, “[T]he hardest thing for me was knowing that another woman could parent my child better than I could.” Yet she had the courage to let her child go, to allow him to be adopted by a family that was safe, stable, and that could give him opportunities that she couldn’t.

But don’t misunderstand; while resources certainly make life easier, love and the ability to safely care for your child are the things that the court cares about—not how much money you have in the bank. 

You may think that appealing every step of the way is demonstrating your love for your child, because you are fighting for them. But sometimes letting go is the greater act of love. Kids need to know where they are going to be living, and who is going to take care of them. Unless the court has made an obvious legal error, the only thing an appeal does as a practical matter is drag out the process and the uncertainty for the child. And they do not necessarily look at your appeals as “fighting for them.” Sometimes it makes them angry; their perception is, “Why did you wait until now to ‘fight for us,’ when it’s too late? Why didn’t you fight for us earlier, when it would have made a difference?” One client I had, when she learned that her father had appealed, said, “Why can’t he just let me be happy?” She loved her dad, but she knew he wasn’t able to take care of her at that point, or in the foreseeable future. She wanted to move forward with her life and be adopted by a family that was able to care for her.

Again, your case may be different. Your kids may want you to fight right up to the bitter end. But I would suggest you at least considerwhether deciding not to appeal might be the right decision for your kids. Even if it’s hard for you. 

If you want to fight for something, fight for yourself; your own health, your own safety, and your own self-worth. If you are able to successfully do that, the relationship with your kids has a greater chance of being repaired.

To Appeal or Not To Appeal…
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