I have a shaken baby case where the baby was shaken and severely injured (by its natural father)but lived. Mother is supportive of criminal case against the father and also wishes to have his parental rights terminated (even when warned that she will forfeit any future child support) but can't afford a civil lawyer to file her case. No CPS case exists because Mother provides a safe environment and no divorce case is pending because the two were never married.
My question is 1) does anyone routinely make termination a part of the plea bargain in this type case and 2) what, if any, ethical problems under 3.09 and 4.04.
(This subject was touched on in a previous post but not with any detail.)

Without addressing all of your issues I would strongly caution you against termination in a criminal plea bargain. The concept of termination, although arguably proper per the facts you've stated, is riddled with pot-holes and ambushes....

First, you must determine if the man is in fact the father. Has he executed an Acknowledgement of Paternity per the TFC (TFC Ch 160 Subchapter D)? You say he was not married to the mother at the time of the birth of the child. Has the AG instituted a suit to determine paternity in conjunction with a child support case? Unless you have an Acknowledgement that fits TFC or paternity tests you should consult TFC Ch 160 - Uniform Parentage Act to first decide if this man has a recognized parent-child relationship with the child.

Second, must decide, per TFC, who is the court with jurisdiction over the child. (TFC 103.001 when discussing original suits and TFC Ch 155 Subchapter B if discussing a modification of a previous order) The criminal court you are operating in may not have any jurisdiction over the child. After you locate the court with proper jurisdiction you must institute a SAPCR (suit affecting the parent-child relationship). The TFC does not make provision for a termination suit to proceed in a criminal case. This is a civil proceeding. Even if you were to make the execution of an Affidavit of Relinquishment a part of the plea bargain the Affidavit would have no affect on the parent-child relationship until adjudicated by the proper civil court. This brings me to my third caveat.

Voluntary v. Involuntary - TFC provides for two vehicles: give it up or have it take from you! If you make termination a part of the plea bargain you have, in my opinion, a voluntaries problem! To achieve an involuntary termination you must again institute a SAPCR, plead and prove one of the 19 enumerated grounds in TFC 161.001 (unless, you can find some statutory basis for termination under TFC 161.002 (see my first point above) or TFC 161.003 or TFC 161.007 - 161.007 doesn't fit the facts you've given in your post but it's an FYI just in case)& you must prove termination is in the best interest of the child.

Finally, you may approach your judge and ask if he/she is willing to place a restriction on the defendant providing for no contact between him and the victim. I can't comment on the success of this approach, perhaps someone else has been successful with a "no contact" provision. I know its done in the case of pre-conviction bonds all the time and it is used with some sex offenders post-conviction. Your best success would be to tap you or your office resources and find a few soft hearted private civil attorneys who would undertake your cause as a pro bono favor.

Good luck!

It would be ludicrous not to terminate. Think about it, a man tries to kill a baby and then thinks he should have something to do with the child. There is absolutely nothing unethical in demanding termination. You did not instigate the criminal charges solely to seek an advantage in a civil case. Whether any termination is voluntary is argumentative at best. Just like any plea-bargain, whether the defendant wants to accept or not is his choice, just as long as no constitutional or stautorily prohibited conduct arising to duress is involved.

Having done CPS cases in the past, my question is not really the logistics of doing the termination (or having the perp sign a relinquishment)but more the ethical considerations behind making it a part of the plea.

I believe that if the defendant feels at all that he is getting a better deal in the criminal case due to his relinquishment that there is a definite voluntariness problem with the relinquishment. From the standpoint of being viewed as coercion by the State in plea negotiations to get the relinquishment. Coercion kills voluntariness.

I suggest the cleanest way (meaning: upholdable on appeal)is hammer him in the criminal case, like he deserves, and let his parental rights be terminated afterwards in a properly filed civil suit. There are good grounds to terminate him without a relinquishment.

Ethical v. unethical is debatable in this situation. But if nonvoluntariness kills you in the end, why get to the ethical question?

just another personal view . . .

I believe that if the defendant feels at all that he is getting a better deal in the criminal case, due to his relinquishment, that there is a voluntariness problem. That is from the standpoint of being viewed as coercion by the State in plea negotiations to get the relinquishment. Coercion kills voluntariness.

I suggest the cleanest way (meaning: upholdable on appeal)is hammer him in the criminal case, like he deserves, and let his parental rights be terminated afterwards in a properly filed civil suit. There are good grounds to terminate him without a relinquishment.

Ethical v. unethical is debatable in this situation. But, if nonvoluntariness kills you in the end, why get to the ethical question? As we all know these guys in TDCJ have all the time in the world and court appointed lawyers to keep us busy with appeals.

hmmm, if you hit enter while typing - you wind up posting twice . . .

Stacey, since you've done CPS work before you are aware of the case law regarding voluntariness. How is your scenario voluntary? Granted Fred, although I disagree with his tone, has a point when he says Mr. Perp can take the deal or leave it....ethically speaking should you even offer the deal knowing the coercive affect it may have on the voluntariness of the affidavit? What procedural safeguards are in place to mitigate the coercive affect in this situation? I don't think it's ethical, I don't think its proper for termination to be a condition or a part of a plea bargain. Scum bag or not the right to parent a child is a fundamental right. Yes the right is subject to limitation and can be extinguished, but think about this - what questoins will the court adjudicating the relinquishment ask? What things will the court adjudicating the termination need to know before terminating this man's rights? There is, just from what limited information you have provided, enough for a civil attorney to make a very good case for termination. I'm all for getting bad guys, proposing termination as a part of a plea bargain isn't your only option. It just doesn't pass the smell test!

I wanted to add one more thing, I agree with Ray hammer away in the criminal case! Hope any of this helps.

Stacey what I often do is let the defense attorney know that if an affidavit of relinquishment or waiver of interest were executed, that might have an effect on my plea offer. I consider this to be the same as telling a defendant that if he pays restitution up front, it will have an effect on the plea offer.

Just a question - does termination of parental rights have the same constitutional considerations as restitution. It was my understanding that there are more constitutional considerations that must be made in terminating the rights of a parent than when determining whether and how much restitution should be paid. Wouldn't that have some bearing?

I guess this one just gets under my skin because there is a chance regardless of how long he gets that he can be paroled and come out of the joint and get visitation of this little girl, he all but killed. We operate under the principal of seeing that justice is done but it really doesn't seem like justice to me if a young mother, making minimum wage to keep her family together, who can't afford the $1000.00 retainer for a civil attorney has to worry that he'll get out before her kids 18th birthday. I have no problem prosecuting him to the hilt but who can say when he'll stroll out the gate of TDC and want to act on his god given right to be a parent.

Sometimes a true dose of justice can't be achieved by the criminal side of the Bar alone. Trying to solve her civil problem of termination(sad as it is) via the criminal justice system is like trying to eat tomato soup with a fork: It ain't the right tool for the job, and even if you finish the meal, you've made a mess of yourself.

There are too many ethical landmines here, making the termination part of a plea. What would be the greater injustice? Leaving her to pursue her civil claims by herself or having the plea overturned on appeal and having the guy walking the streets until you re-plead (or try) him.

Perhaps you should forward her matter to one of those tall-glass-building civil law firms who like to dabble (read: interfere) with capital defense litigation and so-called "Innocence Projects". Seems like they have plenty of (unbilled) time on their hands to go pro bono on a family law case like this.

To help with your "visitation when he gets paroled scenario", why not get a protective order on behalf of the child, against the perp.? Under TFC 85.025(c), if the perp is in prison when the order expires, the order is still good for up to one year after the perp. is eventually released. This would at least give the mom time to get a lawyer, go to legal aid, (or get a new p.o. if he violates the current one) etc. when she knows he's going to be paroled.

Everyone worries about the appearance of offering a different deal if he signs the affidavit. So how about this: If you "prosecute him to the hilt" because you want to minimize his opportunities for contact with the child, aren't you really doing the same thing - intentionally curtailing his fundamental parenting rights by use of the criminal process? I posted this same topic a couple of years or so back, got reponses all over the map, and ultimately did the deal... If that makes me ethically shaky, I'll live with it (I don't believe it does). BTW, the parent who voluntarily terminated has since absconded. Have I filed an MRP? Not even. "Not to convict, but to see that justice is done." Justice in my case required termination. Maybe the legislature gave absolutely no thought to this situation when they mandated prosecutors to represent CPS, but maybe they did...

If prosecutorial decisions in this case are properly made contingent upon collateral civil considerations, then those considerations must take their ascendant position in all prosecutorial decisions. Putting aside constitutional concerns, on-again-off-again consideration of civil consequences nudges a prosecutor dangerously close to ethical relativism in his/her decisionmaking. Besides, if there is a real danger that mom will let dad have access to the child, perhaps CPS should reconsider its decision to extricate itself. I must voice my agreement with Mark and Jeremy. Civil procedures exist to deal with this issue. Are we really prepared to say that a lack of confidence in the civil justice system vindicates invoking the formidable weapon of prosecution to attain a particular civil result? If so, are we prepared to accept civil lawyers reciprocally stepping in to save the day because of the shortcomings of the criminal justice process?

If that is the prosecutors position, then wouldn't we say the same for restitution. There is an appropriate civil remedy for victims to be compensated for their losses but we often take into consideration the victim's desire for restitution to be paid through the criminal case rather than go through the morass of a civil case when offering a plea.
In this particular case, I have no doubt that the victim's mother would fight to the death rather than let the perp see the child so CPS doesn't have a dog in this fight. I'm with you Neel, sometimes you just have to do it because its the right thing.

Restitution is different since it is specifically provided for in the code of criminal procedure and as a rule of community supervision. Additionally, a finding of restitution can be included in the criminal judgment and operate as a restitution lien without the need for a civil suit.

Perhaps the remendy would be legislation providing that a conviction for certain crimes against children or a finding by a judge in the criminal case would operate as an automatic ground for termination.

Stacey, the sections of the professional conduct rules you initially stated are the ones I believe to be relevant to this discussion, particularly 4.04. In my past consideration of this issue, I found myself drawn to the word SOLELY as a prime factor. I suspect you take the position, as I do, that anyone who with a culpable mental state does damage to a child needs to be prosecuted.

If that's true, then you are not presenting charges for ANY other reason than because they are warranted, much less SOLELY to gain a civil advantage. From that point forward, it's a stretch to say that you can carve out a category of civil consideration, among the myriad civil considerations that almost always have a bearing on the appropriate disposition of criminal cases.

I can certainly appreciate the "voluntariness" issue, and that is probably the strongest argument against termination with a companion criminal case. My feeling is there are almost always things going on which likely do have a coercive effect, and that's why you always want a competent attorney to review the relinquishment affidavit with the parent prior to signing it. This may sound like rationalizing, but I would analogize it to the almost subtextual winking that goes on when a judge asks a defendant if his guilty plea is because he is guilty "and for no other reason."

Scott, in response to your surmise about lack of faith in the civil process, I say for me, it doesn't really apply. Since I have criminal duties as well as the duty to represent CPS (small county), I think I can say with a fair degree of confidence that if I have a criminal case that I'm confident will get a conviction, it's a good bet that I can achieve a positive civil outcome with a lesser standard of proof in a case based on the criminal act. Plus, if I'm able to satisfy answer any potential ethical concerns, I believe it's also fair to consider whether a long drawn-out termination trial is (1)in the child's best interest [speedy resolution of custody issues being important, as well as not having a child put through the grind of a trial], and (2) a good use of ever more-limited judicial resources.

Often we have situations which are exactly opposite, i.e., the civil attorney says to the criminal prosecutor, "I will get my client to terminate, if you give him probation." Ultimately, I think you have to do justice and consider what is in the best interest of the child. Obviously the answer is termination

I certainly don't quarrel with any of you who assert that the just thing to do would be to secure termination of the parental rights of a slug who almost kills his child. Likewise, I've done my share of CPS work and am, accordingly, familiar with the horrific nature of such cases. Finally, I'm well aware of the mantra of article 2.01. For the record, then (assuming the facts as they've been presented in this string), I don't oppose termination of this loser's parental rights.

My trepidation arises from this tentative first step down a slippery slope. If I understand the facts correctly, mom doesn't want dad to see the child, but doesn't have the resources to procure private counsel to effectuate her wishes. Because mom has the right intent, CPS has abandoned ship. The interest in protecting the child is nothing but laudable. However, where there is a competent mother who does not herself pose a danger to the child, and who bears a legal duty to protect the child, where is the state's overriding interest in interposing itself in this milieu? More practically, are we prepared to step into the role of de facto Legal Aid when a victim has a pressing civil issue that is related to the criminal case we're handling? Remember, an affidavit of relinquishment of parental rights isn't the end of the road. Someone still has to file a petition to terminate and secure a decree to that effect before dad's rights really are cut off. If we take the first step for mom, but don't help her follow through to the end, have we really seen that justice is done?

We as prosecutors are duty-bound to see that justice is done. But we also are governmental officers, bound by the constitutional obligation to treat likes alike. I think that's the great concern you have to weigh. This case may involve a sympathetic set of victims who we are morally comfortable in assisting. Before the warm-fuzzies wear off, though, a precedent will have been set. And what of the next case in which the parties aren't so sympathetic? It's a tough sell to say that decisions under article 2.01 are really supposed to be based on our personal sympathies and biases.

Perhaps mom should move somewhere else and not leave a forwarding address for Penitentiary Pops. He is, after all, only a presumed dad with (I suspect) no court-ordered rights to the kid. In any event, what about Legal Aid? I know they often are overloaded and won't help out, but they should be given the opportunity. All that being said, I admire the passion for ensuring the just result which is evident within Stacey's and Neel's postings.