5. Final Order

Final Hearing Checklist

(for non-jury trial)

Prior to Final Hearing:

Notice provided to parties within 45 days of trial

All parties served

Legal relief properly plead

Compliance with Indian Child Welfare Act, if applicable

At Hearing:

Note appearances of all parties present

Take announcements about readiness to proceed to trial

Rule on any pending pretrial motions

Opening Statements, unless waived

Presentation of evidence

Closing arguments, unless waived

Evidence

Grounds for termination

Holley v. Adams Best Interest:

desires of the child

emotional and physical needs of child now and in future

emotional and physical danger to child now and in future

parental abilities of individuals seeking custody

programs available to assist those individuals to promote best interest of child

plans for child by these individuals or by agency seeking custody

stability of home or proposed placement

acts or omissions of parent which may indicate that existing parent-child relationship not a proper one

any excuse for acts or omissions of the parent

At the End of the Hearing:

Determine if met burden of proof:

Termination of Parental Rights: Clear and Convincing Evidence

If ICWA applies: Beyond a Reasonable Doubt

Conservatorship: Preponderance of the Evidence

If termination, appoint DFPS or individual as managing conservator (MC)

If no termination and DFPS awarded MC, find that:

Appointment of parent not in child's best interest because would significantly impair child's physical health or emotional development; and

Not in child's best interest to appoint relative of child or another person as managing conservator

If no termination and DFPS awarded MC, consider whether:

The child will turn 18 in not less than 3 years;

The child is at least 12 years old or has continuously expressed a strong desire against being adopted; and

Needs and desires of child

Advise parties of right to appeal

Set Permanency Hearing After Final Order (PHAFO) within 90 days if MC granted to DFPS with termination

Set PHAFO within 180 days if MC granted to DFPS without termination

Best Practices:

Remind Parent Attorney of appellate duties

Set initial hearings sooner than statutorily required to ensure progress toward child's permanency goal

Continue appointment of child's attorney ad litem (AAL) and guardian ad litem (GAL) until child reaches permanency/exits foster care.