DYFS is now the Division of Child Protection and Permanency (DCPP)

New Standards and Rules for Termination of Parental Rights

Today, Judge Glenn A. Grant, the Acting Administrative Director of the Courts, released Directive #06-12 which sets forth new Children-in-Court Standards and  Rules of Court that relate to  Termination of Parental Rights Matters.    The directive gives more than just a name change to DYFS.

One of the significant changes deals with the shorting of the time to appeal a  final judgments terminating parental rights to 21 days.   The rule changes also provide for stricter deadlines and limits adjournments  at the appellate level.  The revised standards and court rules give increased notice to litigants and require new trial protocols including the use of new forms.

The text of Judge Grant’s memo summarizing the changes is below:

MEMORANDUM

DIRECTIVE #06-12

To: Hon. Ariel A. Rodriguez
Assignment Judges                                                                                                          Family Presiding Judges

From: Glenn A. Grant, J.A.D.

Date: July 11, 2012

Subj: Family – Revised Children-in-Court Standards; Amended Rules of Court and Revised Appellate Division Administrative Protocol to Assist the Trial and Appellate Courts to Process Termination of Parental Rights Matters Effectively

Introduction

This Directive promulgates a revised set of Children in Court (CIC) Standards, as approved by the Supreme Court (Attachment 1). The revisions were necessary to clarify practice and to bring the CIC Standards into full conformance with current statutes, court rules, and Judiciary policies.

1. Effective immediately — CIC Standards 1 through 15 and 17, and paragraphs (a), (b), (c), (e), (f) and (g) of Standard 16. Appended are a new evidence list form (CN 11554) (Attachment 2) and a revised Judgment of Guardianship form (CN 10265) (Attachment 3), to assist the trial and appellate courts to process termination of parental rights matters effectively.

2. Effective on September 4, 2012 — To assist the trial and appellate courts to process termination of parental rights matters effectively, the Court by order dated June 26, 2012 amended Rules 5:12-4 and 2:4-1(a). Also appended are documents developed to provide notice to litigants and to operationalize the policies set out in this Directive.

(a) Paragraph (d) of Standard 16 advises of the adoption of a new Acknowledgment of Appeal Rights form (CN 11553) (Attachment 4) and a revised Advisory Notice to Parents and Counsel When Parental Rights Are Terminated (CN 10317) (Attachment 5). Those documents will be consistent with the amendment to R. 2:4-1(a), set forth below, which becomes effective on September 4, 2012. This rule amendment requires appeals in termination of parental rights (TPR) matters to be filed no later than 21 days after entry of the TPR judgment.

(b) The Appellate Division’s Administrative Protocol for Termination of Parental Rights Appeals (administrative protocol) (Attachment 6) also has been revised.

3. On June 29, 2012, the Governor signed into law A-3101 (S-2070), which reorganized the Department of Children and Families. Among the provisions of that enactment is the renaming of the Division of Youth and Family Services (DYFS) to the Division of Child Protection and Permanency (DCPP), effective July 2, 2012. The attached CIC Standards and forms, and this Directive, reflect that name change. The Supreme Court on July 10, 2012 entered a rule relaxation order (Attachment 7) that provides that all references to “Division of Youth and Family Services” or “DYFS” in the Rules shall be deemed to be references to “Division of Child Protection and Permanency” or “DCPP.” The Supreme Court Family Practice Committee in regular course will be reviewing the Court Rules to recommend conforming rule amendments.

Summary of Revisions to Children in Court Standards

Following is a summary of the each of the CIC Standards, including a brief description of the revision, if any, to each standard:

Standard 1 states that CIC cases are a priority. Minor technical amendments were made to this standard.

Standard 2, which describes the establishment and continuing existence of local CIC Advisory Committees and the statewide Children in Court Improvement Committee, was revised to reflect current practice.

Standard 3 states that defendants in CIC matters should receive prompt representation. This standard was revised to clarify the process for appointing legal representation for a defendant.

Standard 4 states that the court must ensure that necessary parties receive notices of all court hearings and also provides for the statutory requirement to provide a copy of the child abuse or neglect complaint to the county prosecutor. This standard now clarifies the notice requirement. The new standard also eliminates the requirement that names and addresses appear in the child abuse or neglect complaint so as to protect the confidentiality of victims in domestic violence situations.

Standard 5 describes the court’s duty to make federally required findings when authorizing the removal of a child from home. This standard was revised to clarify the two critical findings that a judge must document when the Division of Child Protection and Permanency (DCCP), in the Department of Children and Families, places a child away from home.

Standard 6 sets forth the procedure and the verbatim advisory notice that must be provided to defendants if they fail to comply with the court’s order. The standard now provides the actual procedure to be followed by the court.

Standard 7 sets forth the time goals and the standard of proof for child abuse or neglect fact-finding hearings. This standard was revised to focus on and clarify the practice involving findings of fact.

Standard 8 states that Child Placement Review (CPR) Boards function as an arm of the court. This standard was revised so as to be consistent with Administrative Directive #04-10, “Better Protection for Children — Improved Oversight of Abused and Neglected Children in Foster Care.”

Standard 9 states that the court should process CIC cases so as to ensure continuity for the family. Minor technical amendments were made to this standard.

Standard 10 requires that a permanency hearing must be held at least annually for children in out-of-home placements. This standard was revised to clarify practice.

Standard 11 promotes the establishment of Court Appointed Special Advocate (CASA) programs in every county. This standard is unchanged.

Standard 12 sets a time goal for filing a termination of parental rights complaint and provides that the complaint must be filed no later than 45 days after the permanency hearing. The revision here was to the time goal (revised from 60 days to 45 days) in order to reflect current practice and to further promote the goal of ensuring timely permanency for children in placement.

Standard 13 states that court orders should be completed and distributed to the attorneys and parties before they leave court. The standard also clarifies that approved forms of order should be used at all times.

Standard 14 requires there to be annual training for court staff. Minor technical amendments were made to this standard.

Former Standard 15 was deleted — This standard called for modifications to FACTS to track children in foster care. Since those changes have been made, this standard was no longer necessary.

Former Standard 16 has been renumbered to Standard 15 – This standard sets out the requirement to develop and maintain the CIC case-processing manual. In addition to being renumbered, minor technical amendments were made to this standard.

Former Standard 17 has been renumbered to Standard 16 – This standard originally called for the development of policies for addressing appeals of CIC matters. Such policies to assist the trial courts and appellate courts in efficiently processing termination of parental rights (TPR) cases have since been developed and approved by the Supreme Court and are now set forth in detail in this revised and renumbered standard.

The policies now contained in Standard 16 are in part a response to the federal Child and Family Services Review (CFSR) conducted by the federal Administration for Children and Families Children’s Bureau (Children’s Bureau). The purpose of the CFSR is to help states improve child welfare services and achieve safety, permanency and well-being for families and children who receive those services. In its February 2009, Statewide Assessment (Assessment) of New Jersey’s CFSR, the Children’s Bureau noted that New Jersey was not effective in achieving permanency for children in DCPP care, in particular in achieving timely adoption of the children who require that type of permanency. The Assessment noted that delay in disposing of TPR matters under N.J.S.A. 30:4C-15.1 and delay in the appeals of those matters was a critical factor preventing New Jersey from achieving the timely adoption of children in DCPP care.

To address that concern and improve New Jersey’s effectiveness in these cases, the Supreme Court has approved the following policies and procedures:

a. The attached new standard form evidence list (CN 11554) (Attachment 2) shall be used in all TPR matters to document trial exhibits submitted for identification or introduced into evidence.

b. The trial court must render its decision within 14 days of completing the TPR trial. This reiterates existing policy.

c. The attached standard form of judgment (CN 10265) (Attachment 3) shall be used by the trial court to document TPR, including trial dates, names of witnesses, dates of testimony, who called the witnesses, and any and all dates on which a parent surrendered parental rights. The judgment must have appended to it a list of all exhibits introduced into evidence and the party who introduced that evidence. The items noted in this standard must be addressed so as to minimize delay in the appeals process.

d. At the conclusion of the TPR matter, the trial court must advise the parties of their right to appeal the judgment and, beginning on September 4, 2012, that the appeal period is 21 days. Also beginning on September 4, 2012, this procedure will include the use of an appeal rights form (CN 11553) (Attachment 4) and a revised “Advisory Notice to Parents and Counsel When Parental Rights Are Terminated” (CN 10317) (Attachment 5). In that regard, the Court amended Rule 2:4-1(a), effective September 4, 2012, so as to require appeals of TPR final judgments to be filed no later than 21 days following the entry of the judgment.

e. If a party indicates a desire to appeal the judgment, the trial court must direct trial counsel to file the appeal. This procedure also includes other instructions to the appealing party.

f. If a party makes a request of the trial court for additional time, the court may adjourn the matter for up to 14 days, shall require trial counsel to continue to represent the party, and shall require the TPR litigation to remain open until a notice of appeal has been filed or until it has been determined that no appeal will be filed. This policy ensures that there is no gap in representation and that the court continues to track the progress of the case. The 14-day adjournment policy, however, will not toll the time for filing the notice of appeal.

g. Trial counsel is responsible for providing copies of exhibits to appellate counsel. This standard also sets out the policies and procedures regarding the submission and retention of trial exhibits. The standard also notes that a pilot program for the electronic submission of trial exhibits should be established to further improve case processing. In that regard, the Court amended Rule 5:12-4, effective September 4, 2012, so as to set out the following policies in TPR matters: (a) DCPP will be required to submit to the court before the start of the trial two hard copies of all trial exhibits; (b) DCPP will be required to use an evidence list in a form prescribed by the Administrative Director of the Courts; (c) DCPP will be permitted to submit trial exhibits electronically; and (d) the trial court will be required to retain trial exhibits for a minimum of 90 days after entry of the final judgment or order and until final disposition of the appeal. The text of the amendment to R. 5:12-4 is set forth below.

New Standard 17 consists of the policy promulgated by Administrative Directive #04-10 for reviewing children after their parents’ rights have been terminated. The policy is unchanged.

Amended Rules of Court to Assist the Trial and Appellate Courts to Process Termination of Parental Rights Matters Effectively

Minimizing any delay in disposing of these time-sensitive matters responds to the deficiency identified by the CFSR. In addition to adopting the set of revised CIC Standards, the Supreme Court also approved other policies and procedures to assist the trial and appellate courts to process TPR matters more effectively. By order of June 26, 2012, the Court amended Rules 5:12-4 and 2:4-1(a), to be effective on September 4, 2012, to operationalize the approved policies and procedures set out in this Directive.

New paragraph (j) of Rule 5:12-4 provides:

     (j) Termination of Parental Rights Proceedings; Exhibits. The following procedures shall apply to every termination of parental rights matter filed by the Division of Youth and Family Services:
(1) The Division shall submit to the court no later than 5 days before the start of the trial two hard copies of all trial exhibits.
(2) The Division shall append to its trial exhibits a completed evidence list in a form prescribed by the Administrative Director of the Courts.
(3) If authorized by the court, the Division may submit to the court no later than 5 days before the start of the trial its exhibits in an electronic format prescribed by the Administrative Director of the Courts.
(4) In the event that no appeal is filed, the court shall retain exhibits for a minimum of 90 days after the entry of the final judgment. Upon the filing of an appeal, the court shall retain the exhibits until the final disposition of the appeal.
Note that, in accordance with the Supreme Court’s July 10, 2012 rule relaxation order (Attachment 7), the reference to the “Division of Youth and Family Services” in this June 26, 2012 amendment should be read as a reference to the “Division of Child Protection and Permanency.”

Amended R. 2:4-1(a) states:

         (a) Appeals from final judgments of courts, final judgments or orders of judges sitting as statutory agents and final judgments of the Division of Workers’ Compensation shall be taken within 45 days of their entry. However, appeals from final judgments terminating parental rights shall be taken within 21 days of their entry.

Revisions to the Appellate Division’s Administrative Protocol for Termination of Parental Rights Appeals

Also attached is a revised Appellate Division Administrative Protocol on Termination of Parental Rights Appeals, effective for appeals filed on or after September 4, 2012, which reflects the revised policies and procedures approved by the Supreme Court (Attachment

6). Changes to the administrative protocol include the following:

(1) Transcripts must be distributed to the party and the clerk of the appellate court no later than 35 days after the filing of the notice of appeal.

(2) The Appellate Division will file the scheduling order for the matter immediately following receipt of the transcripts.

(3) The appellant’s brief must be filed no later than 45 days after the filing of the transcripts.

(4) The respondent’s brief must be filed no later than 30 days after service of the appellant’s brief.

(5) The oral argument or submission calendar date will be held no later than six weeks after the filing of the last respondent’s brief.

(6) No administrative extensions will be granted. Absent extraordinary circumstances, extensions by motion will not be granted.

(7) Motions not related to the merits of the appeal will not affect the briefing schedule.

(8) The appellate court may sanction appellate counsel and their supervisors for failure to comply with court rules, court orders, or Judiciary policies. An order to show cause and imposition of sanctions should be used, for example, if a party, without good cause, repeatedly fails to meet deadlines or to adhere to the Appellate Division’s administrative protocol.

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Rick DeMichele
Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.
Rick DeMichele

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