La. Admin. Code tit. 22 § XV-1145

Current through Register Vol. 50, No. 9, September 20, 2024

Section XV-1145 - Termination of Parental Rights Proceedings

A. Counsel should be aware of and advise the client of the gravity and potential permanent effects of a termination of parental rights petition. A termination of parental rights ruling has a serious impact as the parent can lose all rights to visitation, custody, and contact with the child. Counsel should treat any termination hearings with the respect, dedication, and commitment such a serious matter deserves.

B. Counsel should meet or exceed the standards set forth below.

1. Preparation for termination of parental rights hearing:

a. where appropriate, counsel should have the following materials available at the time of the termination hearing:

i. copies of all relevant documents filed in the case;

ii. relevant documents prepared by investigators;

iii. cross-examination plans for all possible prosecution witnesses;

iv. direct examination plans for all prospective defense witnesses;

v. copies of defense subpoenas;

vi. prior statements of all prosecution witnesses (e.g., transcripts, police reports) and counsel should have prepared transcripts of any audio or video-taped witness statements;

vii. prior statements of all defense witnesses;

viii. reports from defense experts;

ix. a list of all defense exhibits, and the witnesses through whom they will be introduced;

x. originals and copies of all documentary exhibits; and

xi. copies of all relevant statutes and cases;

b. counsel should be fully informed as to the rules of evidence, court rules, and the law relating to all stages of the termination process, and should be familiar with legal and evidentiary issues that can reasonably be anticipated to arise at termination hearings;

c. counsel should request the opportunity to make opening and closing arguments. When permitted by the judge, counsel should make opening and closing arguments to best present the theory of the case;

d. counsel should decide if it is beneficial to secure an advance ruling on issues likely to arise at trial (e.g., use of prior convictions to impeach the defendant) and, where appropriate, counsel should prepare motions and memoranda for such advance rulings;

e. throughout the termination hearing process, counsel should endeavor to establish a proper record for appellate review. Counsel shall be familiar with the substantive and procedural law regarding the preservation of legal error for appellate review, and should insure that a sufficient record is made to preserve appropriate and potentially meritorious legal issues for such appellate review unless there are strategic reasons for not doing so;

f. where appropriate, counsel should advise the client as to suitable courtroom dress and demeanor. If the client is incarcerated, if necessary, counsel should consider filing pre-trial motions to insure that the client has appropriate clothing;

g. counsel should plan with the client the most convenient system for conferring throughout the termination hearing. Where necessary, counsel should seek a court order to have the client available for conferences;

h. counsel should prepare proposed findings of fact, conclusions of law, and orders when they will be used in the court's decision or may otherwise benefit the client;

i . counsel shall take necessary steps to insure full official recordation of all aspects of the court proceeding.

2. Right to Closed Proceedings (or a Cleared Courtroom)

a. In accordance with La. Ch.C. Art. 407, the parent's attorney should be aware of who is in the courtroom during a hearing and should request the courtroom be cleared of individuals not related to the case when appropriate.

b. The attorney should be attuned to the client's comfort level with people outside of the case hearing about the client's family.

3. Preparation for Challenging the Prosecution's/Agency's Case

a. Counsel should attempt to anticipate weaknesses in the prosecution's proof and consider researching and preparing corresponding motions for judgment denying termination of parental rights.

b. Counsel should consider the advantages and disadvantages of entering into factual stipulations concerning the prosecution's case.

c. In preparing for cross-examination, counsel should be familiar with the applicable law and procedures concerning cross-examinations and impeachment of witnesses. In order to develop material for impeachment or to discover documents subject to disclosure, counsel should be prepared to question witnesses as to the existence of prior statements which they may have made or adopted.

d. In preparing for cross-examination, counsel should:

i. consider the need to integrate cross-examination, the theory of the defense and closing argument;

ii. consider whether cross-examination of each of the individual witnesses is likely to generate helpful information;

iii. anticipate those witnesses the prosecutor might call in its case-in-chief or in rebuttal;

iv. consider a cross-examination plan for each of the anticipated witnesses;

v. be alert to inconsistencies in witness testimony;

vi. be alert to possible variations in witness testimony;

vii. review all prior statements of the witnesses and any prior relevant testimony of the prospective witnesses;

viii. have prepared a transcript of all audio or video tape recorded statements made by the witnesses;

ix. where appropriate, review relevant statutes and local police policy and procedure manuals, disciplinary records and department regulations for possible use in cross-examining police witnesses;

x. be alert to issues relating to witness credibility, including bias and motive for testifying; and

xi. have prepared, for introduction into evidence, all documents which counsel intends to use during the cross-examination, including certified copies of records such as prior convictions of the witness or prior sworn testimony of the witness.

e. Counsel should consider conducting a voir dire examination of potential prosecution witnesses who may not be competent to give particular testimony, including expert witnesses whom the prosecutor may call. Counsel should be aware of the applicable law of the jurisdiction concerning competency of witnesses in general and admission of expert testimony in particular in order to be able to raise appropriate objections.

f. Before beginning cross-examination, counsel should ascertain whether the prosecutor has provided copies of all prior statements of the witnesses as required by applicable law. If counsel does not receive prior statements of prosecution witnesses until they have completed direct examination, counsel should request adequate time to review these documents before commencing cross-examination.

g. Where appropriate, at the close of the prosecution's case, counsel should move for a judgment upholding the parental rights of the client. Counsel should request, when necessary, that the court immediately rule on the motion, in order that counsel may make an informed decision about whether to present a defense case.

4. Presenting the Respondent's Case

a. Counsel should develop, in consultation with the client, an overall defense strategy. In deciding on defense strategy, counsel should consider whether the client's interests are best served by not putting on a defense case, and instead relying on the prosecution's failure to meet its burden of proving its case by a preponderance of the evidence.

b. Counsel should discuss with the client all of the considerations relevant to the client's decision to testify. Counsel should also be familiar with his or her ethical responsibilities that may be applicable if the client insists on testifying untruthfully. Counsel should explain to the client the constitutional right to not testify and weigh the value of doing so with the client.

c. In preparing for presentation of a defense case, counsel should, where appropriate:

i. develop a plan for direct examination of each potential defense witness;

ii. determine the implications that the order of witnesses may have on the defense case;

iii determine what facts necessary for the defense case can be elicited through the cross-examination of the prosecution's witnesses;

iv. consider the possible use of character witnesses;

v. consider the need for expert witnesses and what evidence must be submitted to lay the foundation for the expert's testimony;

vi. review all documentary evidence that must be presented; and

vii. review all tangible evidence that must be presented.

d. In developing and presenting the defense case, counsel should consider the implications it may have for a rebuttal by the prosecutor.

e. Counsel should prepare all witnesses for direct and possible cross-examination. Where appropriate, counsel should also advise witnesses of suitable courtroom dress and demeanor.

f. Counsel should conduct redirect examination as appropriate.

g. At the close of the defense case, counsel should renew the motion for a judgment upholding the parental rights of the client.

C. Whenever appropriate, counsel should consider an appeal of an unfavorable verdict.

La. Admin. Code tit. 22, § XV-1145

Promulgated by the Office of the Governor, Public Defender Board, LR 37:329 (January 2011).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148.