Parents Cannot Afford to Wait to Act When the State Step In
The parents have one year to work with the Division of Child Protection and Permanency (DCPP) to have the child returned when a child goes into foster care in New Jersey. During this difficult period, DCPP has the responsibility of providing services to the family that provide the parents with the skills they need to become “adequate” parents and monitors their progress.
It is imperative that parents move fast to get their lives in order as this critical time period passes very quickly. An important consideration is where the child(ren) are placed. As a practical matter, the FCPP attempts to find a placement within the family to avoid placing a child with strangers.
Should the DCPP decide after a year that the parents are still not capable of competently caring for their child(ren), DCPP can move to terminate their parental rights to free the child(ren) for adoption.
The law recognizes that the termination of a parent’s right to raise his or her child is a matter of constitutional magnitude. (See In re Guardianship of K.H .O., 161 N.J. 337, 346, 736 A.2d 1246 (1999); see also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012)). To be sure, “[p]arents have a fundamental constitutional right to enjoy a relationship with and raise their children.” (See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 608, 914 A.2d 318 (App.Div.2007), certif. denied, 192 N.J. 68 (2007) (citing K.H.O., supra, 161 N.J. at 346–47, 736 A.2d 1246)). However, this constitutional right is “tempered by the State’s parens patriae responsibility to protect the welfare of children.” (See In re Guardianship of J.N.H., 172 N.J. 440, 471, 799 A.2d 518 (2002)).
It is well established that when seeking the termination of a parent’s rights under N.J.S.A. 30:4C–15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following elements:
(1) The child’s safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C–15.1(a); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604–11, 512 A.2d 438 (1986) (reciting the four controlling standards later codified in Title 30).]
Recently, the appellate division reaffirmed these principals. (See New Jersey Division of Youth and Family Services v. J.S., Defendant–Appellant. In the Matter of the Guardianship of A.G., a minor; JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff–Respondent, v. J.S., Defendant–Appellant. IN RE: the Guardianship of A.G., a minor. — October 17, 2013) (AG)):
AG examines the second element and acknowledges the potential harm to a child if they are removed from a loving home where they have formed strong bonds. In AG, the appellate division up held the trial court’s decision to terminate parental rights and leave a child in the home of the foster parents because there was expert testimony by Dr Kanen that
[A.G.] has made significant improvements over time and that there was a high risk of losing developmental progress if [A.G.] were to be removed from his foster home.
Dr. Kanen further testified that [A.G.] would be very traumatized and at risk for depression if separated from his resource parents. He has grown and more importantly thrived under the care of his foster parents. He regards this couple as his parents.
AG reinforces the notion that what takes place at the one year mark is primarily determined in the very early stages of the litigation. If there are potential caregivers within the family, they must be identified quickly and the DCPP must consider them for placement. Because AG demonstrates that once the child has established bonds with the foster parents, it is unlikely that the last minute discovery of relatives will make a difference.
If you or a loved one is struggling to deal with the consequences of a DCPP/DYFS investigation, then please contact the family law lawyers at DeMichele & DeMichele today. We can help you navigate the process, explain your rights and work towards the best result for your children. Contact us now for your confidential initial consultation. You can also reach us by telephone (856) 546-1350.