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New Jersey Appellate Court Affirms Decision to Deny Termination of Parental Rights of Parent with Multiple Sclerosis

On May 3, 2018 the New Jersey Appellate  Division published the case of DCPP VS. T.D., R.C. AND R.G., IN THE MATTER OF THE GUARDIANSHIP OF M.G., B.C. AND A.G. (FG-20-0040-13, UNION COUNTY AND STATEWIDE)(CONSOLIDATED) (RECORD IMPOUNDED) (A-4918-c1b55e653e97997fd3f08500aae0ee83-225x30015T1/A-4923-15T1), an Opinion affirming the trial court’s decision to not terminate the parental rights of T.D., a mother suffering from multiple sclerosis, and R.C., the father of her two youngest children, born in 2012 and 2014, and removed from the care of their parents soon after birth.  The Appellate Division, in denying the appeals of the New Jersey Division of Child Protection and Permanency (Division), and the Law Guardian on behalf of the two young children, stated that the “United States Supreme Court has held that biological parents’ relationships with their children ‘is an interest far more precious than any property right.’ Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). Therefore, New Jersey courts protect that interest by imposing “strict standards for the termination of parental rights.” In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). However, parental rights are subject to the State’s parens patriae obligation to guard the health, safety, and welfare of children. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

If the Division seeks to abrogate the rights of a parent, it must do so by clear and convincing evidence. The statute requires the Division to prove:

(1) The child’s safety, health or development has been or will continue to be endangered by the parental relationship;

(2) 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;

(3) The division 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 the termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]

Here, the trial court found after that after conducting a trial that spanned 18 months, that the Division did not provide meaningful services to the mother, who is confined to wheel chair and was diagnosed with MS in approximately 2007 while in her early thirties. The case stems from complaints to the Division made by the paternal aunt which originally were considered unfounded. After second complaint, the “caseworker observed that the apartment had a bad odor, broken furniture, trash and dog feces on the floor, roaches on the kitchen counter top, and no food in the refrigerator. The Division worker saw an ‘empty whiskey bottle in the living room underneath a chair by the front window’ which [the mother] said belonged to her father. [The mother] confirmed that a ‘home aide service provider’ came daily.” The Division removed daughter Mary and placed her with the paternal Aunt. Later in in 2014, the parties had a second daughter, Alice, who was discharged from the hospital into the care of the parents. On month later the Division learned of the birth and removed the infant. The father, understandably upset, continued his “antagonistic communications with the Division.” The trial was held between December 2014 and June 2016. The children remained in placement during the pendency of trial. A mental health expert testified and recommended “therapeutic family visitation” which became a provision in the June 2015 court order. Over the next six months, the Division did not act to facilitate therapeutic visitation.

The Appellate Court affirmed the findings of the trial court that “the Division failed to adequately take [the mother’s] MS into account when providing services. This finding was amply supported by the evidence. The primary reason for Mary’s removal was the filthy condition of [the mother’s] home, but the Division did not work with [the mother] to ensure that competent home health services were in place. Before Belle’s birth, various experts and service providers recommended providing home services to [the mother] but the Division did not do so until the middle of trial in 2015, when visits were ordered to take place in the home. Also, the Division was aware that using Access Link created a problem for [the mother] but it continued to insist that she use that service when transportation was not available through Medicaid, FCS, or [the father].” The Appellate Division continued its critique of the Division, citing its “failure to provide reasonable services to [the mother] and its attitude towards her disability continued after [the father] entered the picture and infected the Division’s relationship with him as well. Moreover, the Division failed to implement court ordered therapeutic family visitation until nearly a year had passed and the judge had ordered it a second time. Additionally, the Division’s inability to prove its case against [the mother] made termination of [the father’s] rights harmful to the children.” The Appellate Court aptly noted: “Two parents are better than one, even if one parent falls far below the ideal . . . .” N.J. Div. of Youth & Family Servs. v. D.S.H., 425 N.J. Super. 228, 242 (App. Div. 2012). In conclusion, the Appellate Division held, “the trial judge’s determination that the Division did not provide reasonable services to the parents is well-supported by credible evidence in the record. Without meeting this third prong, the Division was unable to prove its case.”

This case demonstrates the complexity of matters involving termination of parental rights and fundamental concepts of parenthood.  The office of James P. Yudes, A Professional Corporation is here to help you navigate these treacherous waters.