Changes to Child Welfare Litigation
What has Changed about Child Welfare Case Processes in New Jersey
Child welfare litigation is constantly changing. As public awareness grows, so too does the law. The agency that handles such matters itself was created in 1899 and started with only seven volunteers. As public concern surrounding the issue evolved, so did the agency. Presently, DCP&P employs thousands of caseworkers, has offices in every county in the state of New Jersey, and receives nearly $1 billion in funding. Likewise, over time, the laws and procedures related to child welfare litigation have also adapted to the modern times. In 2012, some changes were made to the court rules in order to create a more efficient system, which will be discussed in more detail below. However, the most significant aspect of the law has consistently remained the same: termination of parental rights. If you find yourself accused in a child welfare case in New Jersey, you need advice of counsel and a legal advocate who can protect your rights throughout the process. Contact a child welfare attorney who can help with your particular case today. Call our office at (908)-356-6900 to speak with a DCP&P lawyer free of charge.
Has Anything Changed with Standards for Terminating Parental Rights?
The right of a parent to raise and maintain a relationship with their child free from state interference is one of the most cherished and protected rights in both the United States and New Jersey Constitutions. Indeed, a person’s ability to raise their own child and make decisions regarding their welfare without any government intrusion is consistent and necessary in a free society. However, a parent’s right to foster their child is not without limitation. Meaning, a parent cannot do whatever they please to a minor and then seek refuge under the cover of the Constitution. The State has a duty to protect children from harm’s way, even if it means infringing upon a parent’s rights. Particularly, when the safety and welfare of a child become so irredeemably jeopardized by parental abuse or neglect, the State may take extreme action, such as removing a child from the parent’s custody and potentially, terminating their rights.
Going back to 1951, the ability of the State to terminate parental rights has not changed significantly. Essentially, if the child’s interests are being harmed if the parent-child relationship is maintained, the relationship must be detached to protect the child. As such, our family courts focus on four major factors when determining whether it is proper to permanently end the parent-child relationship. In essence, these decisions are based on whether some key aspect of the child’s life is being put in jeopardy by way of their relationship with the parent, such as the child’s development, health, or fundamental safety. In addition, the parent must be somehow unwilling or incapable of providing the type of environment that will prevent the child from suffering unduly. Further, the state must attempt to offer services and assistance in an effort to prevent the parent from losing child custody and the court must consider other options in lieu of terminating parental rights. Lastly, there must be a finding that if the parent is severed from the child, that this will not be more detrimental to the child than beneficial.
Furthermore, because we are contemplating the severance of a cherished fundamental right, the burden of establishing each factor lies with the State. They are obligated to prove each element by clear and convincing evidence and all doubts must be resolved against termination.
Changes to the Rules Handling Child Welfare Cases in Court
As mentioned earlier, there have been alterations to the New Jersey Court rules regarding child welfare litigation. The governing body of law has not meaningfully changed but the rules and procedures surrounding the law have been modified. Notably, in 2012, the Rules of Court were amended to primarily speed up the judicial process. Unlike many other types of litigation, child welfare matters are deemed emergent in light of the fact that they are interfering with families, infringing upon constitutional rights, and disrupting a child’s wellbeing. As a result, cases must proceed quickly. Consequently, to meet those demands, new rules were put into place to help matters proceed faster and in a more organized manner.
One important change concerned the appeals process. Instead of having 45 days to file an appeal, a litigator must submit their claim within 21 days. Additionally, the trial court must retain any exhibits for 90 days. Also, transcripts for the proceedings must be turned over to the parties within 35 days after a litigant files an appeal. Moreover, the Appellate Division must then file a scheduling order immediately following receipt of the transcripts. At that point, a brief shall be submitted no later than 45 days and a response brief shall be filed within 30 days. Oral argument will be held no later than 6-weeks after the filing of the briefs and no extensions will be granted unless there are extraordinary circumstances. And last, the Appellate Court may sanction any attorney or party who does not comply with the new rules.
In contrast, a more traditional appeal takes close to a year to complete. The appeal itself may be filed within 45 days and if the deadline is missed, a party can seek a 30 day extension. The transcripts are usually provided a few months later and the corresponding briefs may be submitted several months thereafter. Also, the parties can request extensions for good cause and moreover, the ultimate decision may not occur for nearly a year, sometimes more.
Another major change was the submission of exhibits at the trial level. This amendment was made to help trials proceed faster and if needed, to help the Appellate Court review cases more efficiently. Generally, for most civil and criminal cases, litigants submit their evidence as they see fit. However, for termination of parental rights trial, the parties must perform the following:
- The Division shall submit to the court its exhibits no later than five days before the start of the trial.
- Additionally, two hard copies of all their trial exhibits must be forwarded.
- Also, the Division shall append to its trial exhibits a completed evidence list in a form prescribed by the Administrative Director of the Courts.
Defend Your Rights when Facing Child Welfare Litigation in New Jersey
These changes to the litigation process are intended to make it better but certainly, more work is needed to improve the system. Of course, some change is better than none. However, no one wants to be on the defendant’s side of a child welfare case. If you are facing DCP&P litigation in New Jersey, please contact our office at (908)-356-6900 for immediate assistance. Our DYFS defense attorneys are available to speak with you and to discuss how we can put all of our knowledge and experience challenging child abuse and neglect allegations to work on your behalf in court. The consultation is free so don’t hesitate to reach out with questions.