Guardianship Trials Prong One – Harm

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Guardianship Trial Lawyers in NJ

The first prong that DCP&P must prove by clear and convincing evidence at a termination of parental rights trial is that the child’s safety, health or development has been or will continue to be endangered by the parental relationship. The DYFS defense lawyers at the Tormey Law Firm LLC are ready and able to assist you in dealing with the Division of Child Protection and Permanency (known as “DCP&P”) at a guardianship trial in New Jersey. In fact, Brent DiMarco, one of our attorneys has literally handled hundreds of DCP&P investigations and court matters including guardianship trials. Protect your rights, your family, and your future: contact our experienced DCPP defense lawyers today for immediate assistance at (908)-356-6900. The initial consultation is always provided free of charge. We represent clients on DCP&P matters throughout Union County including in Scotch Plains, Summit, Union Township, and Linden.

Guardianship Trial – Prong 1 N.J.S.A. 30:4C-15.1(a)(1) – Harm

The first prong that DCP&P must prove by clear and convincing evidence at a termination of parental rights trial is that the child’s safety, health or development has been or will continue to be endangered by the parental relationship. However, the termination of parental rights statute does not set forth a specific list of situations that constitute exactly when and how the parental relationship has or will endanger a child’s safety, health or development. Instead, there are countless Appellate Division and Supreme Court cases interpreting the first prong of the best interests test. The Courts have terminated parent’s rights in cases of physical abuse, psychological harm resulting from lack of parental nurture, exposing children to ongoing domestic violence, lack of stability due to parental substance abuse, or an inability to parent due to mental or cognitive limitations. However, the consistent element in all of the cases is “harm,” past or future, arising from the parent-child relationship. If DCP&P is attempting to terminate your parental rights at a Guardianship Trial, you should contact an experienced DCP&P defense lawyer who is familiar with the case law related to the first prong of the best interests test.

The main focus of the first prong is whether or not the parent-child relationship has harmed the child in the past or will harm the child in the future. In re Guardianship of K.H.O., 161 N.J. 337 (1999). This standard may be met in a variety of circumstances of physical or psychological harm and by one egregious act of harm or an accumulation of harms over time. In fact, the absence of physical abuse does not control whether or not a parent’s rights may be terminated because the court may also consider the potential for psychological harm. In re Guardianship of R.G., 155 N.J. Super. 186 (App. Div. 1977). The New Jersey Supreme Court specifically held “serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.” In re Guardianship of J.C., 129 N.J. 1 (1992).

Thus, courts permit an inquiry into the psychological wellbeing of a child because according to the New Jersey Supreme Court, the psychological aspect of parenthood is more important in terms of the development of the child’s mental and emotional health than the biological parent-child relationship. Sees v. Baber, 74 N.J. 201 (1977). Accordingly, the courts have held that a child’s lack of a stable home and an unfulfilled need for a permanent home is harmful in itself. N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582 (App. Div. 1996). Moreover, the failure of a parent to provide their child with minimal parenting or nurturing for a prolonged period of time is also considered adequate harm under prong one. In re Guardianship of D.M.H., 161 N.J. 365 (1999).

In addition to past actual harm, the first prong may also be satisfied by the potential of future harm regardless of whether or not a parent would intentionally harm the child or if the parent is morally at fault. In other words, if a parent has mental health issues or cognitive limitations that prevent the parent from safely and appropriately parenting their child, then the Court may find that the risk of future harm satisfies this element of the best interests test. N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001). Similarly, although a parent’s drug use alone is not enough to show harm to a child, the Court may rely upon the long-term problems associated with parental substance use that affect a child’s welfare. N.J. Dep’t of Children and Families v. A.L., 213 N.J. 1 (2013). In other words, the Court may find that the first prong is satisfied in cases of parental substance use because risk of harm can be proven by a parent’s drug use, their failure to provide a safe home because of it, and their history of arrests which all created a risk of emotional harm to the child. In re Guardianship of D.M.H., 161 N.J. 365 (1999). Courts may also find harm or risk of harm that meets the first prong in cases where one parent fails to protect the child from the other parent, whether it be physical harm or psychological harm. N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420 (2012). The reasoning supporting termination of parental rights in these “failure to protect” cases is an underlying theme in DCP&P litigation: that the Division and the Courts “need not wait to act until a child is actually irreparably harmed by parental inattention of neglect.” In re Guardianship of D.M.H., 161 N.J. 365 (1999).

Sussex County DYFS Defense Lawyers NJ

As with all types of DCP&P litigation, the application of the law to the facts can be very complex and nuanced. During a termination of parental rights trial, the Court will conduct a fact-sensitive inquiry to determine whether or not, in fact, a parent has harmed or will harm their child based on the Appellate Division and Supreme Court’s numerous interpretations of the first prong of the best interest standard. If you are a defendant in a termination of parental rights case, you should contact a knowledgeable DCP&P defense attorney who has tried guardianship cases before and is familiar with the applicable case law.

Contact our offices anytime for immediate assistance at (908)-356-6900.

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