We recently have seen front page news about one particular judge who has taken far more than the 120 days allotted to decide 10 termination of parental rights cases. We write now not to comment on these particular cases or this particular judge, but to make a broader point: the 120-day rule should be non-waivable or at least difficult to waive.
Four months is a long time for children to be in limbo, and that excludes the time before and during trial. There are always reasons why an extension should be allowed – the judge is sick, for example – but termination decisions should not be taking anywhere near the 120-day limit to begin with. If the lawyers and the judges know the deadline is non-waivable, the judge is less likely to bump up against the deadline in the first place.
Such a rule could be implemented informally even if the legislature does not amend the 120-day statute. For example, at the very least the chief court administrator could insist on seeing any extension motions and reassigning judges who take more than 120 days. The judiciary could be more aggressive by adding a Practice Book provision that judges need to seek the permission of the chief court administrator before asking lawyers to waive the deadline.
Another possibility is a rule requiring that any waiver state the number of additional days the deadline is extended. Currently, a waiver has no deadline even if the lawyers believe the judge only needs a few days. Yet another possibility is requiring the lawyer to receive and submit with the waiver the written permission of the client.
Even better would be a Practice Book rule requiring judges in termination cases to issue decisions in 60 days. This should not create a clash with the 120-day statute because the statute merely says a judge cannot take longer than 120 days without the waiver; it does not say a judge has a right to take 120 days.
Another loophole leaving children in limbo is that the deadline does not start to run until post-trial briefs, if any, are filed. There should be a rule that the last post-trial brief not be filed more than 30 days after the conclusion of the evidence, or if a later brief is permitted, that it does not extend the 120-day deadline.
Termination cases can present thorny issues of law. Administrative judges should be alert to reassign law clerks to termination cases from lesser priority matters. This point should also apply to the reassignment of judges to termination cases from lesser priority matters when needed to assure that children escape from limbo as quickly as possible.
The appellate courts have already taken action concerning the processing of termination appeals: lawyers don’t get extensions of more than a few days to file their briefs, the cases have priority for oral argument, and the decisions routinely go into effect as soon as they are announced on the judicial website, not when they appear in the Law Journal.
The present rules allow trial courts too much time to decide termination cases. The judiciary and the bar must cooperate to help children who are trapped too long in trial court limbo.•