Parental Rights Trump Bonds Formed Between Child and Foster Parents, N.J. Court Rules

Parental Rights Trump Bonds Formed Between Child and Foster Parents, N.J. Court Rules
Charles Toutant
New Jersey Law JournalJune 18, 2010

The possibility that a child may suffer serious psychological or emotional harm from severing bonds with foster parents is not alone sufficient grounds for termination of parental rights, a New Jersey appeals court says.

What must be proved, in essence, is that formation of foster-parental bond was in large part the birth parent's doing, to the point where "any harm caused to the child by severing the bond rests at the feet of the parent," the Appellate Division held in Division of Youth and Family Services v. D.M., A-6020-08.

The June 11 precedential ruling, reversing a trial court's decision, is an important victory for birth parents because of its insistence that the best-interest-of-the-child standard, codified in N.J.S.A. 30:4C-15.1(a), be followed scrupulously in termination cases despite a New Jersey Supreme Court ruling that seemed to allow a more expansive interpretation.

That test requires proof that: (1) the parent with rights has endangered the child's safety, health or development; (2) the parent is unwilling or unable to eliminate harm facing the child or provide a safe and stable home; (3) reasonable efforts have been made to help the parent correct circumstances that led to the child's removal, and the court has considered alternatives to termination; and (4) termination will not do more harm than good.

In this case, DYFS caseworkers began making regular visits to a family after a June 2004 domestic violence incident. The couple, F.M. and D.M., had a 3-year-old child, S.M. Agency workers found evidence that F.M. abused D.M. and were concerned that D.M.'s multiple sclerosis and scoliosis made her unable to supervise S.M., even though the child appeared healthy and normal and no allegation of child abuse had been made.

In July 2005, based on a caseworker's observation of D.M.'s "inappropriate and bizarre" behavior, the child was placed in the custody of D.M.'s mother. In August, after D.M.'s mother left the child in the care of D.M., the agency obtained a court order placing the child with a foster couple who have three children. The child is still with the family.

In 2006, Morris County Superior Court Judge Thomas Critchley Jr. severed the natural parents' rights, concluding all four prongs had been satisfied. D.M. appealed and an appellate panel, finding that only the third prong of the test had been met, remanded the case to Critchley for factfinding. The court relied on In re J.C., 129 N.J. 1 (1992), which said harm likely to result from separation from foster parents may be grounds to terminate parental rights. Critchley so found and again ordered termination of D.M.'s parental rights.

But in the most recent ruling, Appellate Division Judges William Gilroy, Jose Fuentes and Stephen Skillman said the J.C. rationale was undercut by the Supreme Court's June 1 ruling in Division of Youth and Family Services v. C.M., A-74-08, which called for a strict adherence to the "best interests of the child" standard.

The ruling in C.M. "supports our conclusion that termination of parental rights cannot be justified by evidence that a child may suffer serious, psychological or emotional harm by severing the bond between the child and his or her foster parents without evidence that the parent substantially caused, directly or indirectly, the harm to the child."

C.M. reaffirmed that "DYFS bears the burden of proving by clear and convincing evidence each of the four statutory prongs of the best interests of the child standard," Gilroy wrote.

The appeals court remanded to the trial court for formulation of a reunification plan between D.M. and S.M., including individual and joint therapy, and increased supervised visitation, leading to unsupervised daytime supervision and subsequent overnight visitation as determined by the court to minimize any emotional harm to S.M. by separating from her foster family.

DYFS was represented by Deputy Attorney General Lea DeGuilo, whose spokesman, Lee Moore, said only that the opinion is under review.

D.M. was represented by North Brunswick, N.J., solo Carleen Steward, designated counsel for the Office of the Public Defender, who said only that she is pleased with the ruling.

S.M. was represented by Assistant Deputy Public Defender Melissa Vance. The Public Defender's Office said Vance was not available for comment.

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