The Division of Youth and Services ("DYFS") is this state’s prosecutorial agency for children who suffer from abuse and/or neglect at the hands of their caretakers. DYFS is not an agency that many are or want to be familiar with. For others, they are all too familiar with DYFS and the effect its involvement can have on their family’s life.
In a recent published Appellate Division decision, the Court reminded us of the standard of proof to be demonstrated by DYFS in a proceeding where they are seeking to terminate a parent’s rights to a child. In DYFS v. A.R., A-5079-07T4, decided March 4, 2009, the Court set forth a detailed opinion and case history where DYFS failed to meets its burden of proof and thus lost its application to terminate the parental rights of A.R.
Some brief background of this case involves A.R. and her four children. A.R.’s involvement with DYFS began in 2005, when the children were first removed from the home. A.R. was married to an individual who was a known crack cocaine user. A.R. herself had been a crack cocaine user but had entered and completed a rehabilitation program and was sober at the time this opinion was rendered.
After the first removal of the children in 2005, several months later the trial court entered an Order allowing for reunification. This reunification did occur. Not but two months later, the children were again removed as A.R. had allowed her husband back into the home and to be with the children while he was actively using drugs. Two months after this removal, reunification was once again ordered. One month later, the children were removed for a third time because A.R.’s husband was found in the house high on crack cocaine. This time the children were placed under the care and supervision of DYFS and a law guardian was appointed.
DYFS filed a complaint for guardianship of the children. At a hearing, the trial court ordered a bonding evaluation, which never took place. A trial took place over a two month period. The trial court denied the termination and guardianship application stating that DYFS did not satisfy its burden of proof. The Appellate Division affirmed.
A parent’s right to "raise a child and maintain a relationship with that child" is constitutionally protected under the federal and state Constitutions. Id. at pg. 15 "As a result, the State’s rights "is limited to situations in which the State has demonstrated that the child’s parent or custodian is unfit…or the child has been neglected or harmed." Id. at pgs. 15-16. DYFS has the heavy burden, by clear and convincing evidence that this harm has not been cured, that the parent or custodian will continue to cause such harm and that terminating parental rights is in the best interest of the child.
N.J.S.A. 30:4C-15.1 is that statute that provides guidance for an agency that seeks to terminate the parental rights of an individual. This is a four prong test where all four prongs must be met by clear and convincing evidence for termination to occur. The first prong is whether "[t]he child’s safety, health or development has been or will continue to be endangered by the parental relationship." It focuses on the effect of the harms that stem from the parent-child relationship over time on the child’s health and development.
The second prong is whether "[t]he 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 delay of permanent placement will add to the harm." Id. at pg. 19. DYFS must demonstrate by clear and convincing evidence that the parent hasn’t cured the cause of the harm and will continue to cause serious and lasting harm to the child. This prong requires an assessment of the quality of the child’s relationship with foster parents as well as a child’s relationship with natural parents. Such proof should include testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation of the child’s relationship with the foster parent. Ibid. The fact that a child has a strong relationship with a foster parent isn’t enough to terminate a parent’s rights.
The third prong requires DYFS to demonstrate that it has made reasonable efforts to provide services to help the parent correct the circumstances that led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights.
Last, the fourth prong addresses whether termination of parental rights will not do more harm than good. After considering and balancing the child’s relationships with foster and birth parents, the child will suffer a greater harm from the termination of ties with natural parents than from the permanent disruption of their relationship with foster parents. Id. at pg. 28. To satisfy this prong, testimony of a well-qualified expert as stated above must be presented.
Termination of parental rights is not taken lightly and requires a high standard of proof evidenced by expert testimony that satisfies all four prongs as set forth above.