fosteradopt: What is Post TPR Appeal?

What is a Post TPR Appeal?
 
by Matthew LaRock, Esq
 
Imagine that you have been caring for a child for quite some time with the hope of adoption.  In addition to all the joys and challenges of parenting you also have to endure the termination of parental rights trial.   Eventually you learn that the Court has granted the termination of parental rights petitions (TPR) and you can finally adopt!  You are so excited - then you learn that the parent is going to appeal the court's decision and the adoption must wait.  Appeal?  What is it and what does it mean to me?
 
After a termination of parental rights trial that grants DCF's petition, the parent can challenge the legality of the TPR finding by appealing the decision to the Appellate Court.  The parent has a limited time period in which to file the appeal of the court's decision.  The appeal must be filed within twenty days from the date of the decision.  The Court may grant an additional twenty day extension of time to file under certain circumstances.  Therefore, the parent may have up to forty days to file an appeal.  The good news is that the Court cannot grant any further extensions so the time to take an appeal cannot be extended past forty days from the issuance of the decision.  Why can a parent be granted the additional twenty days to appeal?  One reason is in many instances the parent is indigent and represented by court-appointed counsel.  Under the Connecticut Practice Book (the rules that lawyers and judges must follow), a court-appointed attorney may decline to represent the parent when in the attorney's professional opinion the appeal lacks merit. If the court-appointed attorney declines to represent the parent, the attorney must file a timely motion to withdraw his/her appearance and request an extension of time to file the appeal as described above so that there is enough time for another lawyer to review the case.  The Court then notifies the Chief Child Protection Attorney to assign another attorney to review the case record.  If the second court-appointed attorney also determines that there is no merit to an appeal, the attorney must inform the court and the Chief Child Protection Attorney at the earliest possible moment.  The parent will then be informed that they have the balance of the time remaining of the forty days to retain their own counsel to file the appeal.  Even with all this happening, the time to take the appeal still will not be extended past forty days.
 
What happens if the parent has filed a timely appeal challenging the legality of the Court decision to terminate his/her parental rights?  Are the parents going to be successful?   It won't be easy.  The Appellate Court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the whole record or that the decision is otherwise erroneous in law.  The Appellate Court's function is to determine whether the trial court's conclusion was legally correct and factually supported.  It does not retry the case.  In fact, there are no witnesses or testimony in an appeal. Instead of witnesses and testimony the Appellate Court reviews the record of the trial.  The record is everything that the trial judge had in order to reach his/her decision.  That includes all the documents filed by DCF, the parents, and the child and a transcript of all the testimony and copies of all the exhibits.  The Appellate Court does not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached, nor does it substitute its own opinions or judgment for that of the trial judge.   Rather, on review by the Appellate Court, every reasonable presumption is made in favor of the trial court's ruling. This standard of review was recently reiterated by the Appellate Court in the case of In Re Anthony A., 112 Conn. App. 643 (2009). In short, the parent has an uphill battle.  The Appellate Court is clear that it is not going to retry the case and will only reverse or modify the findings of the trial court when there is a clear error.  For instance, the Appellate Court will not reverse a case just because the parent does not agree with the decision or because the parent thinks that the trial court was wrong to believe one witness over another.  Also, the Appellate Court is open to the public and you have the ability to attend and listen to the oral argument presented on the legal issues raised in the appeal. 
 
The obvious drawback and the one that causes the most difficulty for foster parents and their children is that the adoption cannot proceed until the appeal is decided in DCF's favor.  Unfortunately, there is no specific timeframe as to how long the appeal process will take as every case is unique.  However, Connecticut General Statutes Section 46b-142(d) provides that any party who appeals a final judgment in a termination of parental rights proceeding shall be entitled to an expedited hearing before the Appellate Court.  The statute also includes language that a final decision of the Appellate Court shall be issued as soon as practicable.   This statute shows that the legislature and the courts recognize that time is of the essence when dealing with a child's life and therefore termination of parental rights appeals must be handled in an efficient and timely manner.  Can a case last more than a year?  Yes.  But, typically cases run their course within a year.  Although this can be a stressful time for families waiting to adopt, they can take comfort in knowing that only a small percentage of appeals overturn the original court ruling.
 
The above provides general information on the appeals process.  Please contact CAFAP, DCF or the child's attorney for information pertaining to a specific case.                    




Content Last Modified on 6/3/2011 11:18:16 AM