Guardianship Trials Prong Two – Ability to Remedy Harm

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The second prong that DCP&P must prove by clear and convincing evidence at a termination of parental rights trial is that 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. 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”) in New Jersey. In fact, one of our lawyers, Brent DiMarco, has literally handled hundreds of DCP&P cases in his career including investigations, court proceedings, and trials. The initial consultation is always provided free of charge. We represent clients throughout Essex County New Jersey including in Montclair, South Orange, Bloomfield, and Verona.

Guardianship Trial – Prong 2 N.J.S.A. 30:4C-15.1(a)(2) – Ability to Remedy Harm

As with the first prong, the termination of parental rights statute does not specifically define when a court may or not find that a parent is unwilling or unable to eliminate the harm facing the child and the New Jersey Appellate Division and Supreme Court have interpreted numerous cases that outline when a trial court may find that a parent has eliminated the harm facing the child. Such cases include unaddressed mental health issues, unabated substance use, incarceration, and cognitive limitations. If you are involved in Guardianship litigation with DCP&P, you should consult with a seasoned DCP&P defense attorney to discuss your case.

The second prong focuses on whether or not the parent “has cured and overcome the initial harm that endangered the health, safety, and welfare of the child, and is able to continue a parental relationship without recurrent harm to the child.” In re Guardianship of K.H.O., 161 N.J. 337 (1999). Oftentimes, the Courts will rely upon expert testimony from psychologists or psychiatrists to assess whether or not a parent is fit and able to parent in the future. In addition, Courts can also consider a parent’s history because “predictions as to probable future conduct can only be based upon past performance…evidence of a parent’s fitness or unfitness can be gleaned not only [from] their past treatment of the child in question but also from the quality of care given to other children in their custody.” N.J. Div. of Youth and Family Servs. v. Robert M., 347 N.J. Super. (App. Div. 2002).

In assessing the second prong, the Courts do not necessarily need to find that a parent is morally at blame or is voluntarily unable to care for their child. For example, in cases of incarceration or even deportation, the unavailability of the parent alone may be sufficient for a court to find that a parent will be unable to care for the child. In re Adoption of Children by L.A.S., 134 N.J. 127 (1993); N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261 (2007). However, because all cases are fact-sensitive, there must be some connection between the incarceration or deportation and how it negatively impacts the future potential of a parent-child relationship. For example, there is a stark contrast between a parent who had a strong, loving relationship with their child and then became incarcerated on a short sentence and will soon be released and able to provide care to the child versus a parent who was incarcerated before the time of their child’s birth, is serving another twenty years, and will not be released until after the child reaches the age of majority.

In addition to addressing the issues that led to the removal of the child in the first place, the second prong also takes into account the strength of bond between the child and the resource parent and in certain cases the second prong can be proven when “there is clear and convincing evidence that the child will suffer substantially from a lack of stability and permanent placement and from the disruption of her bond with foster parents.” In re Guardianship of K.H.O., 161 N.J. 337 (1999). In other words, the Courts take very seriously the psychological wellbeing of children and if the child developed a strong psychological bond with their resource parent while in placement, then the Court may rely upon expert testimony that severing that bond will cause severe and enduring harm to the child. The major point here is that a parent does not have unlimited time to fix the issues that caused the child’s removal because children have a right to live in a stable and permanent home. Thus, the Appellate Division has held that it would be a misapplication of the law to “keep the child in limbo, hoping for some long term unification plan.” N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001).

Essex County DYFS Defense Lawyers Available Now

Because the second prong of the best interests test is often analyzed in light of an in-depth evaluation of past facts and expert psychological and bonding testimony, it is important to consider consulting with a knowledgeable DCP&P defense attorney if you are engaged in termination of parental rights litigation. DCP&P will be represented by a Deputy Attorney General and the child will be represented by a Law Guardian, both who will be familiar the applicable statutes and case law related to termination of parental rights law. If you do not qualify for an attorney from the Public Defender’s Office of Parental Representation, you should contact an experienced DCP&P defense lawyer to discuss your case. Contact our office anytime for immediate assistance at (908)-356-6900.

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