Adoption Attorney Gives Tutorial for Case Workers Preparing for TPR Trial
We have worked with a lot of caseworkers over the years – whether on our own foster child’s case or the numerous cases wherein we have represented foster parents.
When it comes to their role at trial, sometimes caseworkers knock it out of the park, and sometimes they blow it big time. In a large degree, the success of the case depends on the performance of the case worker at trial.
I have seen caseworkers testify and been in utter amazement at their ability to answer questions with credibility and precision for 45 minutes uninterrupted. It’s also true that caseworkers show up for trial barely able to remember any details about the child’s case. This is disastrous and will likely result in the judge denying the petition to terminate parental rights.
No case worker really wants this outcome. How does it happen? One small ball gets dropped after another. You get used to robbing Peter to pay Paul. You put things off until tomorrow because you have to choose selectively what will get your attention. Then the day of trial comes and you haven’t prepared at all.
On the other hand, every caseworker wants to look like a rock star on the stand. Every caseworker wants to look like they know their stuff and make a difference in a child’s life.
Even if you are overworked and underpaid, this tutorial will teach you how to prepare for trial, give expert level testimony, and help achieve permanency for this particular child.
All of our advice on this topic boils down to just one thing: Strive to be the most prepared person in the room.
And if there’s a second thing, be the most likeable person in the room. Your own personal character may likely be the most persuasive thing about your advocacy.
You need to know the case inside and out. This is the hard work, especially if you haven’t had the case from the very beginning. It takes time. In most cases, it can’t be accomplished in one sitting. This is where the preparation funnel comes in. You have to develop your own methods for preparation, but this is where I recommend you start.
- Calendar the Trial: As soon as you get the date for trial, mark it on your calendar. All of your trial preparation needs to be reverse engineered to that date – to be as prepared as possible on that trial date. The human mind’s ability to retain information over the long run is much small than its ability to retain information over a short period of time.
- Reverse Engineered Events: Next, with your calendar in front of you, begin scheduling a series of reverse engineered trial prep sessions. The most basic version might look something like this:
- Reserve a half day for preparation the day before trial.
- Reserve a half day for preparation three days before trial.
- Reserve two hours for preparation five days before trial.
- Reserve two hours of preparation seven days before trial
- Reserve two hours of preparation nine days before trial.
- Reserve one hour of preparation every other day moving backwards from that.
At this juncture, you don’t need to know what you are going to do during those reverse engineered trial prep times. It’s actually critically important that you do not try to figure that out before you calendar the reserved prep time. If you get bogged down in the particulars, you’ll never calendar the time. The particulars will make themselves clear as you work through the process.
- Declutter, Organize, and Tab: Your first order of business at your first scheduled trial prep meeting is to declutter, organize, and tab. Maybe you’ve had this case from the very first day the child came into care, but most likely that isn’t reality. Even if it is, there’s no way you remember all the details about the case. Organizing and decluttering the file will help you to familiarize yourself with the facts of the case. This next tip is simple, but it will save you so much time: as you declutter and organize the file, tab any documents that you think will be important evidence. At this juncture, you’re moving fast through the declutter and organize phase, and you don’t want to slow down to take notes. Just tab documents that you think are important. You’ll come back to them later in the process.
At risk of sounding like a broken record, this phase of the process doesn’t need to happen the night before trial. As will be made clear later, this should happen no sooner than a month before trial. For an average case where a child has been in foster care for 12 months, the declutter, organize, and tab phase could easily take three to six hours. That’s two weeks of one hour prep sessions on our reverse engineered pathway.
- Now, you are the expert: By now, you know the case better than anyone in the world, save probably the foster parents. You know the case better than the mom’s attorney, the dad’s attorney, the DHR attorney, the GAL, and the Judge. But, that’s not worth anything if you can’t transmit that expertise to the court and to your attorney.
The following strategies are designed to put you in the driver seat and do just that. Caseworkers do not need to sit back passively with an “oh, well… not my job” mentality. With these tools, caseworkers can take command of the court room experience.
- Make an Exhibit List: During the previous phase you tabbed a lot of documents. Now go through all of those tabbed documents and determine if you think they should be used as evidenced. “What!? I’m not an attorney. How am I supposed to know if it can be used as evidence.” Have no fear. The rules of evidence are far more intuitive than you think. And, it’s the attorneys’ job to determine if he wants to use your exhibit as evidence. It’s your job to give him what you think are the highest quality documents. If your attorney only uses half the documents you provide, that’s a huge wine.
When you determine a document could be used as an exhibit, you must follow a methodology to ensure it’s digestible by your attorney and findable at trial. Here is the methodology we recommend:
- Make a spreadsheet with the columns of exhibit number, description of document, location in file, date created, relevance. For each document, plug in that information. If you have a case aid or some other assistant, it can make the process go a lot faster.
- Next, make a copy of the document. On the bottom right hand corner or some other convenient location, place an exhibit number or just write the number that corresponds to number in the spreadsheet.
- Highlight the portions of the document that you want your attorneys attention to be drawn to, then put in a folder dedicated to exhibits.
- Make a timeline of key events: If you’ve done everything to this point, your attorney will think you hung the moon. They won’t be left groping through dark trying to figure out what you think is important. And it’s not that you expect them to use everything you provided, but it gives them a base line to work from. Your next task is to take the exhibit folder, and make a timeline of key events.
You can use handwritten notes or a spreadsheet like you did for the exhibits. The important thing is that the date is first, then the event, then the relevance. And that’s the order you can expect questions from your attorney. “What happened next?” “On June 17, 2025, the natural father failed a drug test.”
What should go into a timeline? There is a bit of art in this that you will learn as you go. You don’t want too much and you don’t want too little. Everything that relates to the grounds for TPR is relevant. A short list could include when the child came into care and the cause, the first ISP, the demeanor of the parents, whether a parent kept a visit appointment, medical appointment, counseling appoint, psychological appointment, and how the child responded to those appointments.
In addition, your timeline to should make reference to the appropriate exhibit number where helpful.
If you follow your training, a lot of this information is already kept in the DHR’s case note system. This is a great system and if followed diligently, it can be a great tool for you as you make your timeline.
Or, better yet, you’ve kept a timeline from the beginning of your time on the case.
- Collaborate with the Foster Parent: The only person who has more information than you about the child is the foster parent. Ask them to put together a timeline from their memory and notes. Ask them to gather any documentation or pictures they think are relevant for trial.
Encourage them to retain their own legal counsel to assist them in preparing to give testimony for trial. After they have made their timeline and gathered their evidence in an exhibit folder, sit down with them to compare notes. Iron sharpens iron and this can only help you put on the best case possible.
- Draft Questions for Your Attorney to Ask You: Now, this may sound audacious. Trust me, it is. And unless your attorney is totally devoid of humility, they will thank you for it – big time. There are two different methodologies for drafting questions: timeline centric and document centric. For your purposes, I recommend a blend of both.
Start with the timeline you’ve created and draft the questions you want to be asked. For example:
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- On when date did Timmy come into care?
- Why did he come into care?
- Did you see his mother at the hospital?
- In what state was she in?
- Did Timmy test positive for controlled substances at the hospital?
- Which ones?
- How do you know that? A: The mother told me and I reviewed the hospital records. [Show Ex. 1 – Drug screens from hospital]
- Do you recognize this document?
- Is this a document kept in your ordinary course of business?
- Is this document in substantially the same condition as when you reviewed it?[1]
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In a typical case where a child has been in care for 15 months, I would expect at least 500 questions. That might seem like overkill, but trust me, it’s not. Even if the local attorneys try to shame you for being “extra”, trust me when I say the appellate courts want to see extra.
And to the notion that a TPR trial should be able to be completed in one afternoon, I have my sincere doubts. Only in the clearest cases of abandonment would we expect a TPR trial to be completed in one afternoon,
- Make Sure Your Allies are Ready: Now that you’ve made a tabbed and highlighted exhibit folder, corresponding exhibit list, timeline with references to the exhibit list, and questions for your attorney – now you need to turn your attention to ensuring that your allies are ready. Your allies could be a CASA worker, third party agency worker (like AGAPE or Alabama Baptist Children’s Home), foster parent, counselor, psychologist, parenting assessor, police officer, medical provider, former case worker, or supervisor.
If it turns out that one of your allies is not an ally, take the time to discuss the case with them and win them over to the child’s best interest. Consider inviting them to a face-to-face meeting over coffee or lunch, or some other relational outlet.
Encourage your true allies to follow the same protocol you did, resulting in a question list for your attorney. I anticipate that they will be truly pleased to find out how much influence they have over the litigation process if they too follow this methodology and produce a really helpful question list for your attorney.
- Demonstrative Exhibits – Have the Last Word Without a Word: A demonstrative exhibit is what it sounds like – an exhibit that demonstrates an idea, event, concept, or gives a visual representation of complex data. For example, happy pictures of the child with foster parents could be a demonstrative exhibit. Or, a pie graph showing that the natural parent has only taken advantage of 3% of their opportunities to visit with the child could be a demonstrative exhibit.
Having colorful letter size handouts of these demonstrative exhibits is good and necessary. They can be passed around to the other attorneys and easily entered into the appellate record.
However, what will give you the last word without a word is having one or two key demonstrative exhibits blown up to a poster board size exhibit that can be placed on a portable easel. Once your attorney introduces this exhibit with the letter size version, they can set up the exhibit on the poster board size easel. And leave it there.
Throughout the rest of trial, that exhibits just sits there (if your attorney can pull it off), staring at the judge as the judge stares back at it.
That’s how you get the last word without a word.
Conclusion
Through this article, I have placed a lot of responsibility for the outcome of the case in your hands. That’s good and appropriate. But, in conclusion, I want to temper that pressure with these truths.
2,400 years ago, Aristotle commented on his observations of the way things are:
[T]hings that are true and things that are just have a natural tendency to prevail over their opposites.
And again,
[T]hings that are true and things that are better are, by their nature, practically always easier to prove and easier to believe in.
If you take your stand with that which is true and just, then all of creation takes its stand with you. This is as sure as the law of gravity.
Yet, we have to admit, that sometimes, despite our best efforts and despite taking our stand with all that is good and true and beautiful, sometimes we lose. Sometimes the child loses. First and foremost, we as advocates need to take responsibility for those loses and evaluate where we could have done better.
Sometimes, however, judges just make the wrong decision. Aristotle speaks to this as well:
[B]efore some audiences not even the possession of the exactest knowledge will make it easy for what we say to produce conviction. For argument based on knowledge implies instruction, and there are people whom one cannot instruct.
All of this may seem overwhelming to implement. I get it. Just start somewhere. These kids are worth it. If you only do 50% of the things suggested in his article you will likely be twice as prepared and twice as credible as any other witness in the court room.
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[1] This isn’t necessarily the best method for getting a hospital document admitted; abbreviated here for the main point of social worker preparation.
