Loss of Parental Rights

1. Law Lessons from N.J. Div. Of Youth And Family Services v. M.W. (App. Div., A-4268-04T4, December 1, 2005, not approved for publication):
   
   The fundamental nature of a parent's rights to her children and the Constitution's protection of those rights are thoroughly recognized, particularly in cases in which the termination of those rights is in issue. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558- 59 (1972); N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 505 (2004); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993); N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599. However, it is also recognized that parental rights are not inviolable, and may, in cases of parental unfitness, be subject to a State's parens patriae interest in the child's welfare when dictated by the child's best interests. K.H.O, supra, 161 N.J. at 347; In re Guardianship of J.C., 129 N.J. 1, 10 (1992); A.W., supra, 103 N.J. at 599. Nonetheless, recognition of the fundamental nature of a parent's right, the permanency of the threatened loss, and the complexity and subjectivity involved in evaluating parental fitness has led courts to impose a heightened standard of proof by clear and convincing evidence upon the State when seeking guardianship of a child and termination of the parent's rights to that child. Santosky v. Kramer, 455 U.S. 745, 762-64, 767-68, 102 S. Ct. 1388, 1399-1402, 71 L. Ed. 2d 599, 612-13, 615-16 (1982); L.A.S., supra, 134 N.J. at 132-33.
   
   Termination of a parent's rights to the parent's children may be sought under the "best interests" standards governed by N.J.S.A. 30:4C-15(c) and 15.1(a).



2. Law Lessons from NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.F. (App. Div., A-5038-04T4 and A-5398-04T4, December 6, 2005, not approved for publication):
   
   "The right of parents to be free from governmental intrusion is not absolute." A.W., 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., 161 N.J. at 347.
   
   The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C- 15.1a. DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., 161 N.J. at 348.
   
   In K.H.O., the Court held that where there is evidence that a bond with a foster parent is strong and that a bond with a natural parent, by comparison, is not as strong, the fourth prong of the best interest standard will be satisfied. Id. at 363. New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.
   
   The Legislature has established kinship legal guardianship as an appropriate alternative in cases "where adoption is neither feasible nor likely," N.J.S.A. 3B:12A-1c, which must be clearly and convincingly proven as a prerequisite to implementing that alternative. N.J.S.A. 3B:12A-6d(3)(b).



3. Law Lessons from NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.R. (App. Div., A-4543-04T4 and A-4725-04T4, December 6, 2005, not approved for publication): A father's or mother's right to parent his or her own child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citations omitted). However, that right is not absolute and must yield to protect a child's welfare. See New Jersey Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996). "Notwithstanding their profound nature, parental rights are not inviolate when a child's physical or mental health is jeopardized." Ibid. (citing New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)).



4. Law Lessons from DIVISION OF YOUTH AND FAMILY SERVICES v. M.S. (App. Div., A-4537-04T4, December 13, 2005, not approved for publication): Natural parents have a fundamental liberty interest to raise, care for and maintain custody of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The State through its parens patriae power in acting to protect a child from serious harm, either physically or emotionally, can terminate one's parental rights, either partly or entirely. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
   
   "When the child's biological parents resist the termination of their parental rights, the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. Our inquiry, however, is not to focus on the natural parents' adequacy and fitness, but instead whether the parents can provide the nurture and affection the child requires without any ensuing harm to the child. New Jersey Div. of Youth & Family Services v. A.W., 103 N.J. 591, 607 (1986).
   
   It is not enough to terminate parental rights through a mere "showing that a child would be better off with an adoptive parent rather than with the biological parent." In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999) (citations omitted). Generally, parents who have maintained a relationship with their children will not have their rights terminated. Ibid. "Conversely, when an adoptive parent has provided the child with a permanent home, courts often protect the child from interference by a biological parent with whom the child has no relationship." Ibid. (citing E.E.B. v. D.A., 89 N.J. 595, (1982); Sorentino v. Family and Children's Society of Elizabeth, 74 N.J. 313 (1977)).
   
   The burden of proof is placed on the moving party, who is seeking to have the parental rights terminated, "to demonstrate by clear and convincing evidence" that "serious and lasting harm to the child" will continue unless parental ties are severed. J.C., supra, 129 N.J. at 10 (citing Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17)). The best interests of the child standard is implemented to balance the rights of the natural parents with the State's responsibility as parens patriae. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The standard requires that the following criteria be met by clear and convincing evidence in order to terminate parental rights:
   (1) The child's health and development have 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 foster 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 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).]
   
   These four criteria overlap one another in order to "provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348 (1999).



5. Law Lessons from DIVISION OF YOUTH AND FAMILY SERVICES v. M.M. (App. Div., A-5528-04T4 and A-5529-04T4, approved for publication January 12, 2006):
   
   The right of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B. Jr., 161 N.J. 396, 404 (1999); Adoption of Children by L.A.S., 134 N.J. 127 (1993); A.W., 103 N.J. 591. Parents have a fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and State constitutions protect the integrity of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 1212-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.
   
   The law presumes that parents will act to promote the best interests of their children. See Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). However, "experience and reality may rebut what the law accepts as a starting point . . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119.
   
   When a biological parent resists termination of his or her parental rights, the courts' function is to decide whether that parent has the capacity to eliminate any harm the child may already have suffered, and whether that parent can raise the child without inflicting any further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The focus of our inquiry is not only whether the parent is fit, but also whether he or she can become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights" of the biological parents. Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that the risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.
   
   The balance between fundamental parental rights and the State's parens patriae responsibility is promoted by the law's best-interests-of-the-child standard. K.H.O., supra, 161 N.J. at 347. Under that principle, parental rights may be severed when:
   (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 termination of parental rights; and
   (4) Termination of parental rights will not do more harm than good.
   [N.J.S.A. 30:4C-15.1a.]
   See also A.W., supra, 103 N.J. at 604-11.
   
   One parent cannot be held responsible for the shortcomings of the other, at the cost of forfeiting his parental rights; the non-culpable parent is obliged only to exert reasonably successful efforts to protect the child from the harm inflicted by the deficient parent.



6. Law Lessons from NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.B. (App. Div., A-5371-04T4, January 30, 2006, not approved for publication):
   
   The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, 405 U.S. at 651, 92 S. Ct. at 121-13, 31 L. Ed. 2d at 558-59; A.W., 103 N.J. at 599.
   
   "The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point. . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.
   
   Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.
   
   When the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.
   
   This balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., 161 N.J. at 347. Under that standard, parental rights may be severed when:
   (1) The child's health and development have 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 [or her] foster 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 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).]
   
   These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. K.H.O., 161 N.J. at 348. The considerations involved in determining parental unfitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).



7. Law Lessons from: DIVISION OF YOUTH AND FAMILY SERVICES v. S.R. (App. Div., A-4687-04T4, February 21, 2006, not approved for publication): The underlying concern for a child's welfare is the need for permanency within a reasonable timeframe. In re Guardianship of J.C., 129 N.J. 1, 26 (1992). There is a "strong public policy in favor of permanency . . . [and] [i]n all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." In re Guardianship of K.H.O., 161 N.J. at 357. This principle has been codified by Title 30 of the New Jersey Statutes, which was amended to conform to the Federal Adoption and Safe Family Act of 1997 (ASFA), prohibiting a parent from keeping his or her child in foster care for a protracted period of time. See N.J.S.A. 30:4C-15 (requiring courts to hold permanency hearings for all children who have been in placement for twelve months and, unless there is an exception, requiring DYFS to file guardianship complaints for all children in placement for fifteen of the most recent twenty-two months). Ultimately, the objective of the best interests of the child test is to protect the emotional, mental, psychological, and physical well-being of the child. In re Guardianship of J.C., 129 N.J. at 26.



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