termination of parental rights

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.

Continue Reading Standard of Proof To Terminate Parental Rights