Understanding Termination of Parental Rights in New Jersey
When, Why, and How can Parental Rights be Terminated in NJ?
Termination of Parental Rights or TPR means the legal action whereby a court severs all of a parent’s legal rights he or she has with their child. Parents have constitutionally protected rights that are both honored and protected under our laws. They have the right to select their child’s medical treatment and education. They have the right to control who their children interact with and under what circumstances. Parents have the right to make decisions and execute legal documents on behalf of their children. Overall, they have a constitutionally protected right to raise their child free from government intrusion. Moreover, this sacred and cherished right has been upheld and enforced by both the United States Supreme Court and the New Jersey Supreme Court.
However, parental rights are not absolute and there are many instances where the State has the authority to intervene and sometimes outright terminate those rights. Alongside the parents’ rights are the children’s rights to be free from harm. Nevertheless, because children are especially vulnerable and in many respects, cannot protect themselves, the State is responsible and has a legal duty to ensure children are safe and their best interests are being served.
To that end, the Division of Child Protection and Permanency is the branch of the State that is responsible for protecting children. Similar to the police, if the Division receives a report that a child may be endangered, they are responsible for investigating the claim. In turn, when DCP&P enters a home and begins asking questions, there is a clash between the parent’s interests to be free from government interference and a child’s interests to be safe. Furthermore, that clash or collision can erupt when the State tries to implement restrictions such as removing a child or placing restrictions upon the parents. Additionally, the conflict may ultimately end in a devastating manner wherein, the parents’ rights to raise and maintain a relationship with their child is terminated.
Grounds for Termination of Parent’s Rights in New Jersey
Our system recognizes the dual and competing interests at stake and consequently, will not terminate a parent’s rights unless the Division can demonstrate, by clear and convincing evidence, the following.
- The child’s safety, health or development has been or will continue to be endangered by the parental relationship;
- 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.
- DCP&P 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
- Termination of parental rights will not do more harm than good.
Please keep in mind, the above four factors are not separate and discrete elements. Rather, they tend to overlap and intersect with one another. The principal purpose of the termination factor and what the Family Court is trying to achieve is to examine the whole picture in order to promote what is best for the child. With that backdrop, it is also important to note, every case is unique and requires an extremely fact-sensitive analysis to address the particularized circumstances of the parents and the child. Therefore, there is no single solution or formula to defending a termination case. Again, every case is different and must be addressed as such.
How Parental Rights can be Involuntarily Terminated in New Jersey
A full DCP&P proceeding consists of two parts: Title 9 filing and Title 30 filing. The first part focuses on whether the parents committed an act of abuse or neglect and the second part addresses whether the parents’ rights should be terminated. Generally, most cases brought to court do not reach the second half because the circumstances of the matter do not warrant parental termination, or the parents are able to cure the problems. However, there are few matters every year that do cross that threshold and sadly, a determination is made by the Court to sever a parent’s rights.
Most DCP&P matters begin with a referral to the agency. This can occur in a myriad of ways. For instance, a police officer may be investigating a case and during the course of the investigation, he or she may observe some concerning behavior involving the child. As a result, the officer contacts the Division. Another instance is a child disclosing something disturbing to a teacher at school or a doctor during a routine checkup. Consequently, the teacher or physician notifies DCP&P. Also, it is not uncommon for a bitter ex-partner to contact the Division in order to gain an advantage in a custody proceeding.
Once DCP&P receives a claim, the agency must open up an investigation. A caseworker will visit the home, speak to the parents, examine the child, and will likely question any other person who may have any knowledge about the report. If the caseworker determines that the child’s welfare may be endangered, a complaint will be filed with the Family Court. If a complaint is filed, the Family Judge will initially hear from the Division and the parents. Thereafter, the Judge will enter a temporary order addressing custody and parenting time. In addition, the Court will also issue an order compelling the parents to undergo services to address the Division’s concerns. For example, if the Division opens up a case because there are allegations that the parents have a substance abuse problem. The Court will order the parents to attend drug counseling sessions so the issue can be corrected and the child can be raised in a home free from dangerous substances.
Can You Challenge Wrongful Termination of Parental Rights in NJ?
It may sound like the parents are defenseless and once DCP&P enters their lives, they must comply with whatever they desire. Not true. The parents are entitled to a fact-finding hearing to challenge the report made to the Division. A fact-finding hearing is a trial and at the trial, the parents can question any witnesses DCP&P may present and challenge any other evidence put before the Court. The parents may also call witnesses of their own and present any evidence they may have to demonstrate that they did not abuse or neglect their child. At the conclusion of the hearing, the Family Court will either find in favor of the Division and thus, find that the parents did in fact commit an act of abuse of neglect, or, the Judge may side with the parents, and rule that no harmful conduct occurred.
If the Family Court declares that the parents committed an act of child abuse or neglect, the Judge will enter another order compelling services. This order is slightly different because at this point, the Judge has reviewed all the evidence from both sides and has determined that the parents have either harmed or placed their child at risk of harm. Consequently, the Court will craft an order tailored to address the parents’ conduct. For example, as mentioned above, if the parents are suffering with substance abuse problems, the Court will direct the parents to attend counseling and treatment. If the parents comply and show signs of improvement, the case will eventually be dismissed. However, if the parents’ conduct continues, the Division will then file a separate complaint seeking Guardianship.
A Guardianship complaint is a separate but related filing made by the Division. The Complaint outlines the history of the case and ultimately asked the Court to terminate the rights of the parents. Similar to the first half of the case, the Family Court will hear from both side and then, enter a temporary order. Thereafter, the parents can comply with the order in an effort to dismiss the case or chose to disregard the Judge’s mandates. Eventually, the case will be scheduled for a termination hearing where DCP&P will be seeking to show, by clear and convincing evidence, the four factors outlined above. If successful, the Court will sever the parental ties and thus, the parents will no longer be the child’s legal parents.
What Happens if a Parent Loses their Parental Rights in NJ?
The Child may be Placed up for Adoption
Sadly, if the Family Court terminates a parent’s rights, he or she no longer has any legal rights to the child. As a result, the child will be placed up for adoption. In most cases, if the matter has risen to this point, the minor will have already been placed in a resource home. If the resource parents indicate that they wish to adopt the child, the Court will usually permit it. Also, it is common for the resource parents to decline adopting the child and consequently, the child may be adopted by another family.
A Close Relative, Family, or Friend may take the Child
An alternative to adoption and the termination of parental rights is Kinship Legal Guardianship, also referred to as KLG. This alternative is very similar to adoption because the Guardian is awarded custody and inherits all the parenting responsibilities and duties. The KLG is responsible for adequate support and care, supplying financial assistance, consenting to medical treatment, arranging for proper education, and making decisions to promote the child’s overall welfare and well-being. However, the natural parents’ rights are not deemed to be completely extinct. The parents may object to adoption and at a later date, may petition the court to become the child’s parents once again.
The KLG option is an excellent alternative if the parents truly believe their rights are going to be terminated by the court. This option is even more attractive if the parents have a close relative or friend who can serve as the Guardian. If the Court names a close family member or friend as the KLG, it is very likely that the parents can visit their child regularly and thus, still maintain a relationship with him or her.
The Parents may Agree to Identified Surrender
Another legal alternative to termination is to execute an Identified Surrender. An Identified Surrender is an agreement between the parents and the Division wherein the child may be adopted by a person identified by the parents. This option is similar to a KLG and again, can be favorable if the child is placed with a relative or friend and the parents can maintain a relationship with the child. However, there is one very important difference. Under an Identified Surrender, the parents are agreeing to sever their rights and therefore, they are asking the Court to terminate their rights. As a result, the adoptive parents, if they want to, can legally forbid contact between the parents and the child. Nevertheless, in some cases, this is a better option than proceeding to trial and allowing the court to place the child in a resource home.
Facing Termination of Your Parental Rights? Contact DCPP Lawyers Serving Parents in Ocean, Union, Somerset County and across New Jersey
Knowing what you can do when facing termination of your parental rights or the rights of someone you love in New Jersey is paramount to securing the outcome you are seeking Up against a complicated legal process when parental rights may be terminated, you should seek legal counsel from a dedicated NJ Termination of Parental Rights Attorney who can ensure that you understand all of your options and walk you through the process of what happens next. Contact (908)-356-6900 to consult with an attorney free of charge.