The Life of a DCPP Case, Part Eight - Considering Your Options Before Trial

Considering Your Options Before Trial

By now I am sure you know that once the Division has sought to terminate your rights, the process of preserving your rights and regaining custody of your child becomes extremely difficult.  As I mentioned in the previous post, you will be overwhelmed with appointments with service providers, evaluations, court appearances, and scheduled visits with your child for parenting time.  At the same time, you will want to keep up with your work and school obligations. 

I don't know the percentage of TPR cases that are won, but I do know that the process can be emotionally, mentally and physically draining for parents.    As overwhelmed as you are, at this point in the case you need to take time to think about your situation and decide what option is best.  Keep in mind that the option that is best for your child may not be the one that is best for you.

So what choices do you have?

• Attempt to regain custody of your child.

If you decide you want to move forward to trial, you need to work closely with your lawyer and continue to comply with all court Orders and work with DCPP.  In order to have a fighting chance, you must not miss any dates for evaluations, therapeutic appointments, court appearances, or visits.  At this point in your case your lawyer should be receiving discovery.  DCPP keeps contact sheets that document the life of your child almost on a minute by minute basis.  Everything you say or do (or fail to do) will be documented in these sheets.  The judge will be reviewing this evidence when he or she makes his decision.  That is why you should cooperate with your case worker at all time and never be berbally abusive.  However, do not discuss any issues with your worker if they pertain to legal issues in the case.   Your worker should not attempt to influence your decision or predict the outcome.  Do not sign any documents without consulting your lawyer first.  It is perfectly OK to say, "I need to discuss this with my lawyer, I will follow up with you after that."  If you have a problem, contact your lawyer and he will deal with the situation between attorneys.

• Ask the Court to place your child with a relative or friend

If your child is in foster care, you can ask the court to place your child with a relative or friend.  In most cases, DCPP will not want to remove the child from a foster home where he or she has lived for some time, if the foster parents wish to adopt.   But it some cases, the foster parents change their mind, and DCPP will be looking for a new placement.  Even if DCPP tells you they do not want to remove your child, ask the case worker to check out relatives or friends anyway.    DCPP would prefer to place with a relative, but will investigate placing with family friends also. 

During the discovery process, your lawyer will receive any letters from the Division to any relatives who have been considered as placement options, but have been ruled out.  Your attorney can tell you the reasons why DCPP has decided not to place a child with a relative or friend that you have suggested.

Anyone who is interested in taking your child will need to cooperate with DCPP by participating in a home study, and participating in foster parent training.  DCPP can rule out any individuals who have had previous drug, criminal or DCPP history.   Keep this in mind when you consider who to offer as a potential placement resource.

Sometimes, DCPP will agree to a relative placement on conditions that the birth parent have no contact with the child, or have only limited supervised contact.  In  those cases, the court will not terminate the rights of the birth parent.    However, DCPP can  ask the court to notify it if the birth parent files papers in court seeking to change custody or parenting time.   You should know that as long as you retain your parental rights, you retain the right to go to court and ask a judge to change custody or parenting time - but DCPP will most likely oppose your application.

Even if you choose to go to trial and attempt to regain custody yourself, it is always a good idea to discuss possible relative placements with your lawyer, if your child is not with a relative or family friend.

• Kinship Legal Guardianship (KLG)

In some cases, Kinship Legal Guardianship (KLG) can be an alternative to termination of parental rights.   It is a more permanent arrangement than simply to place a child in the custody of a relative or friend.  In a KLG arrangement, the relative agrees to raise the child until the age of 18, if necessary, and exercises all the functions of a parent.   At the same time, the birth parent retains some parental rights, including the right to maintain a relationship with the child.  In KLG, the child is not adopted, and the under KLG, the birth parent can decide whether or not to allow the KLG Guardian to adopt the child or change his or her name.  

In 2021, a new law allowed fot KLG to be permitted after a child has been living with a relative for s months.   Under previous law, the a chld had to be living with a relative for twelve months.

KLG is not an option in all situations and is only available if your child has been living with the prospective KLG guardian for six months  A KLG Guardian must undergo the same checks as a prospective adoptive parent.  The court must decide that the parent is unable or unwilling to care for the child on his or her own, and that DCPP has made reasonable efforts to reunify.  

KLG sounds like a good alternative, and in many cases it is.    Previous law stated that KLG is only an option if adoption "is neither feasible nor likely."    DCPP considered KLG a less permanent option than adoption, even though your lawyer will argue that it is not.   Sometimes DCPP would not even discuss KLG with the caregiver, even though your lawyer has notified DCPP that you want it to be considered.

If your lawyer thinks that KLG is an option for your case, he or she will discuss it with you.   Your lawyer can fight for KLG even if DCPP opposes it.  Under previous law, the fact that you want KLG was technically not a defense in a TPR case.   It is unclear if the new legislation will make it be easier for cases to result in KLG.  Always let your lawyer know if you are willing to agree to KLG.  

DCPP does not oppose KLG in all cases and sometimes will propose it as a plan.  Even though KLG preserves your parental rights, you do not have to consent to it and you have a right to a trial.  The judge would then decide if DCPP has proven that KLG is a better option than reunification.  DCPP would have to prove this by clear and convincing evidence.

If the judge does decide that KLG is appropriate in your case, you do have the right to go back to court to regain custody of your child.  However, in such a hearing, the burden of proof is on you to show by clear and convincing evidence that your incapacity no longer exists and that it is in your child's best interest to return to you.    One reason DCPP opposes KLG in many cases is that they fear that KLG would allow the birth parent to interfere with the arrangement by constantly filing applications to change custody.

KLG does not terminate your child support obligation, even though a KLG guardian can get financial assistance.   If you do not want to have an ongoing child support obligation after your case is over, KLG is not the option for you.  KLG allows you to retain some parental rights so it makes sense that it requires you to be responsible for child support as well.

• Voluntary Surrender of Parental Rights

You may decide that you do not want to proceed to trial and that you want to surrender your parental rights.  This is a very difficult decision which you must discuss with your lawyer.  There are lots of reasons why a birth parent might make this decision.  You may decide that you are unable to do what you need to do to get your child back.  You may decide that your child is better off in his or her current placement.  You may have ongoing issues, such as incarceration or drug problems that you have been unable to resolve and that would prevent you from parenting.  Your lawyer may have told you that after analyzing your case, it is unlikely that you would prevail at trial for whatever reason.

If you surrender your rights, your relationship with the child ends immediately.  You will still need to pay support until the adoption becomes final.  You cannot change your mind and you cannot appeal your case if you surrender.  That is why you should always wait as long as possible to decide.    Your lawyer would prefer to go to trial and wants to give you your day in court.   It is better to proceed as if you are going to trial, because you can surrender at any time before the trial is over.  But if you surrender, you cannot change your mind.  Don't make the decision until your lawyer has reviewed all the expert reports, and all of DCPP's evidence.  Your lawyer can advise you at that point if he or she thinks there is a realistic chance for success at trial, or not.

There are two ways to surrender your rights if you decide to do so.

• General Surrender

If you execute a general surrender, you give up your right to a child, and allow DCPP to place your child in the adoptive home of its choosing.  This means that you have no say at all in who will adopt your child.   In most cases, a general surrender is not a good idea for this reason.    There is no benefit for the birth parent whatsoever in executing a general surrender.   Only consider this option if you want no involvement with your child ever in the future, or if DCPP will not accept an identified surrender and you do not want to proceed to trial.

• Identified Surrender

For the above reason, most parents would choose an identified surrender instead.    An identified surrender also ends your relationship with your child.  However, unlike in a general surrender, you can designate a specific person to adopt your child, usually the current caregiver.  If your child is in the care of a relative who wishes to adopt, an identified surrender allows for the possibility that the adoptive parent might allow contact with your child in the future.  However, you can also execute and identified surrender if your child is in the care of a foster parent.

When you execute an identified surrender, you surrender your rights on the condition that your child is adopted by the person you designate.  If for any reason, the adoption does not take place, DCPP must notify you, and tell you that your surrender is void.  At that point your parental rights are reinstated, and you once again have the right to a trial.  

DCPP does not have to accept an identified surrender, and will only allow it if you are willing to surrender to the current caregiver.  You cannot surrender to anyone else.   If your surrender becomes void, DCPP may not be willing to offer an identified surrender and may ask if you will agree to a general surrender.  You do not have to agree to a general surrender and have the right to a trial.   If your identified surrender is void, it is because DCPP's original plan was not executed and it is DCPP's obligation to come up with another one.  You may be in a better situation at this point than you were when you originally decided to surrender. 

You need to contact your lawyer if you have executed a surrender that is now void.  If OPR has represented you, you need to reapply for the public defender so OPR can reassign your lawyer.   If you.  If you had a private attorney, you need to let him or her know that the situation has changed.

Every case is different.  Your lawyer can advise you but your decision is ultimately yours.   You genuinely think your child is better off with the people who have been caring for him or her.  If you feel that for whatever reason that you cannot parent your child, you are not a bad parent if you give your child to someone who can.   You may decide that the best gift you can give with your child is to allow your child to be raised by adoptive parents who can give him or her what you cannot. 

If you decide to surrender, you will be asked to fill out a form and testify in court.  Your lawyer will discuss this form with you before you make your final decision.  When you go into court you will be sworn and your lawyer will ask you the same questions on the form that you just signed.

But there is no reason to surrender if you don't feel that way.  A surrender does not help your legal position.  DCPP may make you think that if you lose the trial, they will automatically seek to remove any future children you have and will not provide services for you, but that if you surrender, they would work with you in that situation.  Those statements are not accurate.   It is true that if you lose your trial, DCPP may remove your future children, but that decision is at their discretion and they may still decide to work with you even if they do.  Don't let anything DCPP says influence your decision.  The only people who should influence your decision are your loved ones, your therapists or counselors, and your lawyer.

You may feel that you want to go to trial because you feel strongly that your child should be with you.  You may be thinking about the day  your child finds you in the future and that you want him or her to know that you did not give up and that you did all that you could.   Your lawyer may advise you that there is a chance of success at trial and that he or she feels you should not surrender.  I tell all my clients that I will support whatever decision they make.  

In our next post, I will discuss the pre-trial process in more detail so you know what you need to do before the trial date, and what you lawyer will do for you.

Next: Preparing for Trial

The Life of a DCPP Case, Part Seven - TPR - Your Rights and Responsibities

TPR - Your Rights and Responsibilities

I know the last post had a lot if information to absorb.  At this point in the process, you will have a lot on your mind and most likely will have a lot of questions for your lawyer.   You will want to know what you can do at this point to get your child back, and what DCPP has to do. in order to prove their case against you.

Getting Services

As I pointed out, the Division has to prove its case against you by clear and convincing evidence.   It is a high bar for the Division to clear in proving their case.  One thing the Division must prove is that they provided you with every possible service in order to prevent Termination of Parental Rights and to facilitate reunification with you instead.  In order to prove "reasonable efforts" the Division must show that they have:

• Worked with you to develop a reunification plan (even after the Judge has approved TPR as the permanency plan);
• Referring you to service providers that you and the Division have agreed upon, or that the court has ordered, including;
• counseling;
• family therapy;
• drug and alcohol treatment;
• parenting classes;
• anger management.
• Arranging for you to have continued parenting time with your child.

DCPP's obligation is to set up these services for you.  Your obligation is to attend every session and every scheduled visit with your child.  If you are serious about getting your child back, you would not want to miss any visits.

I understand that it is very difficult to juggle all these multiple responsibilities.  You will be overwhelmed with appointments for, substance abuse treatment, parenting classes, anger management sessions, and therapy sessions.   You will be required to attend psychological and bonding evaluations scheduled by the Division, the Law Guardian, and  your lawyer, with separate experts.   Of course, you also have to attend every pre-trial case management conference in court..  Many parents run into problems because these obligations interfere with their work or school schedule.  They worry that they have to choose between school or work and achieving the goal of reunification.

You need to discuss your school and work schedule with your case worker, so that he or she can try to schedule services around that schedule.  The Judge will want to see that you are either maintaining employment or going to school.  Tell your lawyer about any problems with your schedule, so he or she can talk to the DAG.   Not all services can be arranged to accommodate your schedule.  You have to rearrange your work and school schedule in order to do what you need to do.  The court can provide letters to your school or employers if necessary.  I know most parents do not want to discuss DCPP litigation with employers or teachers, but sometimes you will have no choice but to miss some days of work or school.  It is more important now than ever to keep a calendar of your obligations.

Parenting Time

You have the right to enjoy parenting time with your child during this process.  You want to maintain and solidify your relationship with your child.  The court wants you to have this regular contact, and if you are serious about reunification, so do you. 

The amount and type of parenting time you have depends on the facts of your case.  At minimum, the court will usually allow one hour a week of parenting time, supervised by the Division.  Of course that is not enough.  Your lawyer will always be seeking to expand your time.  He or she can request that a family member supervise your visits, whether or not your child is with a relative or in foster care.    If you are complying with all the required services, the Court will be more likely to grant your attorney's request for more time.  Your lawyer can argue that you have mad enough progress for supervision to be lifted.  He or she can present a defense evaluation that recommends lifting the supervision.  Your lawyer can request that visits take place in the community or your home, instead of the DCPP office.

DCPP will be keeping records of how often you visit and the quality of those visits.  Bring your child a healthy snack and age appropriate books to the visits.   Remember, the older your child, the more questions he or she will have about the outcome of the case.  If you are engaging in therapy, your therapist can help you develop age-appropriate answers for your child.  Never promise your child that he or she will be coming home to live with you. 

Transportation

We live in New Jersey!   Anyone who has lived here for any length of time knows that it's not easy to get anywhere without a car.    Although we have a public transportation system in New Jersey, it's not easy to get where you are going.   New Jersey is a very crowded state but the further you get from the Turnpike in either direction, the more rural our state gets.  Some rural parts of our state are very beautiful, but have little or no public transportation to offer.

If you are involved in the DCPP system and don't have easy access to reliable transportation, ask your DCPP case worker to assist.   DCPP can sometimes transport you to court, to visits, and to some service providers.  In some situations DCPP will provide a driver, in others they can provide bus or train passes.  If DCPP refuses to accommodate your transportation request, your lawyer can ask the Judge to order the Division to assist but it is up to the judge to decide to grant the request.  If you are in a substance abuse treatment facility, you can ask if the facility can provide transportation as well.

If you are represented by the a lawyer from the Office of Parental Representation, you can ask your lawyer if he or she can request that OPR assist in transportation.  OPR has limited resources though, and cannot accommodate every transportation requests it receives.

While DCPP can assist in transportation most of the time, arranging transportation is ultimately your responsibility.  If you have arranged for DCPP to transport you somewhere, don't refuse the ride.  If you must reschedule a visit with your child for any reason, contact DCPP a day in advance so that they don't send a transporter for your child or you unnecessarily.  If you don't cooperate with DCPP's transporters, DCPP will not want to assist you in the future. Always thank the transporter for the ride.   Never verbally abuse a DCPP transporter.  Don't do anything that will make DCPP decide it does not want to help you with transportation.

If you decide to arrange transportation on your own, for anything at all, please be sure you have a Plan B and Plan C to get to where you are going!  It's great if you can drive yourself to where you are going.  But if your car is on its last legs, it may not get you there.  It's great if you have a friend or relative to drive you somewhere, but it's not good if that person is not reliable.  Your friends and relatives do have their own lives after all.   And don't expect your lawyer to drive you to or from court - he or she has other things to do.   In short, if transportation is a problem, it is best to ask DCPP for transportation assistance first before you figure out your other options.

The Trial Date Gets Closer

As the trial date gets closer, you will be thinking about whether  you can meet your obligations to get your child back.  Your lawyer will be waiting for the results of you evaluations and will begin to assess the likelihood of success at trial.  In my next post, I will discuss the options that you need to consider as the trial date approaches.

Next: Considering Your Options Before Trial

 

The Life of a DCPP Case, Part Six - Termination of Parental Rights

Termination of Parental Rights

Why is the Division seeking to Terminate Parental Rights?

If your child has been in placement out of the home for one year, or 15 out of the last 22 months, and has ruled out the other possible plans which I discussed in the previous posts, the Division can seek to terminate parental rights.  If you have been served with a complaint for Termination of Parental Rights, but had not been involved with the process in the previous litigation, you should read all of the previous posts.

How does a TPR case start?

A Termination of Parental Rights (TPR) case, also called a guardianship case, begins when the Division of Child Protection and Permanency (DCPP) (formerly known as the Division of Youth and Family Services (DYFS)) files a complaint against you.  Like the original abuse or neglect  complaint that I discussed earlier, this is an ex parte process which means that you will not get a summons.  The order you received from the last permanency hearing gave the Division notice of the time allowed to file the complaint and the date you need to appear.  The Division will notify you of that date also.  A case for TPR is not a criminal case and you cannot be punished with a fine, jail time, or anything else if the court rules in the Division's favor.  However, your child support obligation will continue until your child is either adopted or returned to your custody.

What does TPR mean for me?

TPR is the most serious remedy available to the Division.  If the court terminates your parental rights, you will no longer have any right to:

• Have contact with your child, in person, by phone, or any other means, unless the adoptive parent agrees to allow such contact;
• Receive information about  your child's health, education, or welfare, except as the adoptive parent will allow,
• Seek to enforce any promises of such contact with the family court;
• Go to family court to regain custody.

DCPP has filed for TPR against me, what do I do now?

The first and most important step is to get a lawyer.  If you were represented by the Office of Parental Representation (OPR) during the previous abuse/neglect case, he or she will advise you that you will need to reapply for OPR representation so that he or she can continue to represent you for the TPR case.  OPR will usually assign your case to the same attorney who handled your case before.  If you are income eligible, you can qualify for an OPR attorney even if you did not have one before.

If you had a private attorney, he or she most likely will want to sign a new fee agreement with you.

You are allowed to represent yourself in any legal matter, but TPR cases are extremely serious.  Do not represent yourself.   Make sure the lawyer you hire is familiar with this type of litigation.

For the same reasons I explained in my earlier posts, each parent requires a separate lawyer, whether or not you and your co-defendant are married, or are living together.  Do nor hire an attorney who says he can represent both parents.  Very often, the mother an father are in different legal positions or simply disagree about how to handle the situation.

How can I help my lawyer prepare my case?

• Give your lawyer any documents you have including any reports and cord papers regrading the case and any past cases involving you.
• Meet with your lawyer and review DCPP's complaint, so your lawyer knows which facts are true and which ones you disagree with.
• Keep in touch with your lawyer at least once a week.  Always make sure your lawyer has a current address and working phone number for you, as well as an emergency contact you can trust.
• Always be honest with your lawyer.  Your lawyer will not disclose anything you wish to keep confidential.
• Keep  copies of all letters you give DCPP, and give your lawyer a copy.  Get a journal and write down the date and time whenever you try to contact DCPP or any service providers.  Leave messages with DCPP or service providers if you cannot reach them.
• Keep a calendar and use it to write down all court and visitation dates, as well as any dates for therapy or counseling appointments, and evaluations with experts.  Call 24 hours in advance of any scheduled visitations to confirm, even if the Court order does not require you to call ahead. 
• Ask your lawyer to answer all your questions.
• Let your lawyer know what result you want, as well as your "fallback" position.
• Continue to cooperate with your case worker, but do not discuss legal issues relating to the litigation itself.  Do not sign any documents without discussing them with your lawyer first.

Grounds for Termination of Parental Rights

DCPP can seek termination of parental rights for any of the following reasons.

• You have failed to correct the problems that led to your child's removal;
• You abandoned the child (meaning that DCPP cannot locate the parent after using every available means to do so, or you have had no contact with DCPP, the child, or foster parents for six months);
• You have been convicted of, or pleaded guilty to, a crime involving abuse, abandonment, neglect, or cruelty to a child in a criminal case;
• You either committed, attempted to commit, helped someone commit, or hired someone to commit murder, manslaughter, assault, or some other act that could have resulted in death or serious injury to any of your children.

Most cases don't proceed on these grounds though.  Rather the Division will usually proceed  on the theory that TPR is in the best interest of your child.  It's not a simple test though.  The Division would need to show that all of the following facts are true:

1. You harmed your child in the past and/or will continue to do so;
2. You are unwilling or unable to end the harm .
3. DCPP has provided all the services it could have to help you correct the problems;
4. Termination of Parental Rights will benefit the child more than in will hurt the child.

In 2021 new legislation eliminated the provision allowing DCPP to present evidence that sperating a child from the chlid's resource family would cause serious and enduring psychological harm to the child. 

No matter what DCPP chooses to try to prove in your case, it must do so by "clear and convincing evidence."  That means more than a simple preponderance of the evidence, but less than beyond a reasonable doubt.

The next few posts will deal with your rights and responsibilities, and explain the TPR process as the trial approaches.  I'll discuss what DCPP will do to prove its case, and how your lawyer will prepare a defense for you.

Next: TPR - Your Rights and Responsibilities

 

The Life of a DCPP Case, Part Five - Review and Permanecy Hearings

Review and Permanency Hearings

By now you have seen that the court has two functions in a DCPP case.  The first function is to determine if a parent has abused or neglected the child.  The court cannot continue to hear the case under Title 9 if it determines that there was no basis for the finding against at least one parent.   The court can establish abuse or neglect either because the parent has stipulated to one of the allegations in the complaint, or following a trial.   Once the Court enters a fact-finding Order, the court has completed that first function.  The court can continue to hear the case under Title 30 if the Judge has found that it is necessary to continue services for your family.   Title 30 jurisdiction last six months and the Division must request that the case remain open every six months if it does not want the case to be dismissed.

The court begins to exercise its second function at the dispositional hearing, which I discussed in the previous post.  At that point, the court will have determined if your child can come home now.  The court will also have determined which services are necessary for the parent to complete in order to safely parent the child at home, or to allow a reunification when the case is over.  In order to properly monitor your family's progress, the court will schedule review hearings and at least one permanency hearing.

Review Hearings

At this point in your case, you will need to change your focus from the facts of the removal and redouble your efforts to get your child back.  You need to communicate with your case worker and CASA regularly and visit your child as often as allowed.  The court will schedule review hearings at least every three months.   Each time a hearing is scheduled, the Division, and often the CASA worker, will issue reports to the court documenting both the progress that you have made and any problems that still need to be addressed.  The Division will also document your compliance or failure to comply with court-ordered services.  

Your lawyer will receive these reports within a week of your court date.  It is very important that you maintain communication with your lawyer at this point in your case.  Your lawyer only gets these reports right before the review date and does not want to be learning about problems for the first time, or find out that you are not complying.   Any lawyer who handles these cases will understand when clients have setbacks and will not be upset with you or judge you for that.  However, speaking for myself, I do get upset when clients do not maintain communication.  Your lawyer cannot help you with problems he or she does not know about.  You need to give your lawyer any progress reports from service providers so that he or she can send them to the Judge and all attorneys before the review hearing.

During this period, your lawyer may determine that you should be evaluated by a defense expert, usually a psychologist.   Typically your lawyer will request two types of evaluations, a psychological evaluation, and a bonding evaluation.    A psychological evaluation seeks to determine if the parent has  any mental health issues that could impede successful parenting, or that would be a reason for the court not to allow your child to return home.  A bonding evaluation enables the psychologist  to observe your interaction with your child, to determine if there is a healthy and positive relationship.  If you have a public defender from OPR, he or she can also ask an investigator to check out the conditions of your home, if that becomes an issue in the case. 

Your lawyer will determine at which time in the case to schedule the evaluations.  He or she does not want to use the expert's time and effort unless and until you are participating in services that can help you.   It is important for your lawyer to be able to present reports that will show you in a positive light, so that the court does not only rely on the information in the Division's reports. 

If the judge has determined that you have made significant progress, you may be reunited with your child before the case is over.  However, that does not mean your case will necessarily be dismissed right away.  The judge will probably want to monitor your progress for at least a few months to ensure your situation is stable in the home. There is no limit to the amount of time the court can keep a case open once a child returns home.  But if your child comes home and you comply with court orders, the edge will eventually dismiss your case.  Hopefully you will find yourself in that situation, and you won't need to read any further in this blog!

Permanency Hearings

If your child is still out of the home and almost a year has passed by, your situation will become more serious.  There is a Federal Law called the Adoption and Safe Families Act  (ASFA).  You can check out the full text here, if you want to but you probably would rather click here for a summary of the law. 

ASFA, as a federal law, applies in all 50 states and  is a well-intentioned law that Congress passed because they did not want children to spend years in foster care while the court decides if reunification is possible.    This law is not bad for children in that sense.  However, in passing this law, Congress created an arbitrary deadline.   ASFA requires the Division to present a permanent plan for a child within one year from the date of removal.   If  the one-year anniversary of your child's removal is approaching, and your child is still in placement, the court must hold a permanency hearing.  Although the Division will present its plan to the Judge at that hearing, the Judge has the final say and can either accept or reject the Division's plan.  If the Judge rejects the Division's plan he or she will not substitute one of his/her own but will order the Division to present a new one in thirty days.

There are five possible outcomes to a permanency hearing:

• Reunification.  The court decides your child can come home with you now or in the immediate future.

• Three-Month Extension.   If your lawyer thinks that  you have made significant progress, but that there is more that you need to do before your child can return home, he or she can ask the judge for a one-time three-month extension of the Permanency deadline.   Although I am always happy to ask for these extensions, I would prefer that the Judge approve reunification than grant the extension.  Just because a Judge grants an extension does not necessarily mean he or she will approve a reunification plan next time.

• Custody to Other Parent or Relative.  If the Court reunites a child with one parent, the Division usually will not seek to terminate the parental rights of the other one.   If the Judge determines that a case can be dismissed, but wants to award primary custody to the parent who did not have it before the DCPP case began, the Court will schedule a best interest hearing, called a "G.M." hearing (after the case that ruled that such a hearing is required).    Any lawyer who handles your DCPP case will be able to represent you for that hearing.

• Kinship Legal Guardianship.   This is an arrangement in which your child's current caretaker, usually a relative or family friend, agree to care for your child in the long-term and assume all responsibility for the child.  However, in this arrangement, the birth parent retains parental rights including parenting time.  (This arrangement is a good outcome in some cases where reunification is not feasible.  Your lawyer can advocate for this outcome but it is difficult to achieve unless the Division agrees with it.  This is because the Division sees Termination of Parental Rights followed by adoption as a more permanent arrangement.   I could spend a lot of time on this issue but it will have to wait for a future post.

• Termination of Parental Rights (TPR).   If the Division determines that  any of the other possible outcomes are not feasible, their DAG will ask the court to approve a plan of Termination of Parental Rights (TPR) (also known as "Guardianship").   This is not the outcome you want or you hoped for, but it is not the final outcome of your case.    The Judge can order a plan of TPR at this point, but that Order does not terminate your rights.  The Judge will Order the Division to file a new Complaint for TPR within the next 45 days.    If the Judge approves a TPR plan, he or she will keep your current case open until the Division files the complaint and serves the parents.   When it is ready to file the Complaint, the Division will file and serve you with new Order to Show Cause which will set a court date for you to appear.  At that point, the Judge will dismiss the previous litigation.\ 

If you were represented by a Public Defender from OPR, your representation will conclude when the judge dismisses your abuse/neglect case.  Your Public Defender will ask you to reapply for the services of OPR so he or she can continue to represent you if you are approved.  If you were represented by a private attorney you will probably need to enter into a new fee agreement in order for him or her to continue to represent you.

Hopefully for you "The Life of A DCPP Case" does not go any further.   You want to get your child back before the case gets to that point where the Court has approved TPR as a permanency plan.   That is why I said earlier that your primary focus has to be on reunification beginning the day after your child is removed and on the 364 days after that.  The Division will always assume that reunification is the best plan, but you only have one year to prove it to DCPP - and the Judge.  If you don't achieve it, the DCPP will recommend TPR.  They will still offer you the same services, and say that they are "concurrently planning" for reunification.  But don't be fooled - the Division's focus is solely on TPR after this point.  You may still be able to get your child back before a trial - I've seen it happen.  But after this point it is much harder.  TPR Trials are hard to win.  The only way to guarantee that you will win it is to make sure it doesn't happen.

If you are facing a TPR trial, please keep following this blog.   As "The Life of A DCPP Case" continues, I'll discuss TPR trials in detail.  I'll explain how your lawyer will prepare  for trial and how you can assist him or her as he prepares your defense.  I'll also discuss the stresses that parents face when the trial is looming, and the difficult decisions and choices that parents have to make as trial approaches.

Next: Termination of Parental Rights: Preparing for Trial

The Life of a DCPP Case, Part Four - The Fact-Finding Trial and Disposition Hearing

The Fact-Finding Trial and Disposition Hearing

The Fact-Finding Trial

Let us assume you have made the decision that you should not stipulate to the allegations of abuse or neglect.  By this time, several weeks or even months have passed since your child was removed.  By this point, you should be compliant with all court orders, and working with your attorney to assist him or her in preparing your defense.  If you have done all of these things, your lawyer will be prepared for the trial  You will probably be nervous, but you will also be relieved that your long-awaited day in court has arrived.

Your trial will be in front of a judge only - there are no juries in family court.  At the fact-finding hearing your lawyer can cross-examine witnesses and call witnesses in your favor.   However, you need to let your lawyer know in advance about any witnesses, because the Division may request information about them.  Your lawyer wants to make sure that he or she does not present anything that might backfire and hurt your case.   The Division has to prove its case by a preponderance of the evidence unless they have notified your attorney that they are seeking the higher "clear and convincing" standard (see previous post).  You may want to testify yourself at the hearing, but your lawyer will want to discuss this decision with you.  You do not have to testify and if you do you will be subject to difficult cross-examination.   Because the Division has the burden of proof, your lawyer does not have to present a case for you and may decide to rest his or her case after the DAG rests.

Your lawyer will want to try to exclude as much evidence as possible.  Very often the documents that  the Division presents include inadmissible hearsay.  Or the Division will offer testimony of a worker or supervisor who does not have personal knowledge of the facts of the case.  Your attorney can make appropriate objections before and during the trial.

Most fact-finding trials take longer than one day and sometimes cannot be completed in consecutive days.  Often times you will be waiting weeks before the judge gives a decision at the end of the trial.  Once the Judge has considered all the evidence, he or she will make a decision and give an oral and/or a written opinion.     If the judge finds in your favor he or she may order the case closed and return your child to you.  If the Judge rules in the Division's favor, the court will immediately conduct a disposition hearing to determine what will happen next.

If the Court decides that you did abuse or neglect your child, you can appeal this decision within 45 days.   An appeal is not a new trial but a review of all the evidence by three Appellate Judge s who will decide if the Judge decided your case correctly.  Although the Appellate Division will hear any case that comes to it, not all appeals are successful.   Your attorney will discuss your situation with you and help you decide whether to appeal your case.   The Division or the Law Guardian can appeal also, if the court rules in your favor.    I will discuss appeals in detail in a later post.

The Disposition Hearing

The court will usually hold a  Disposition Hearing immediately after either a stipulation or a fact-finding hearing.  The Division will tell the Judge what steps you need to take in order to address the problems that led to the removal of your child.  The Judge will assess the situation and will decide if your child can come home now, or if you need to complete services first.  The Judge will issue an Order which will set forth what you need to do.

Next: Review and Permanency Hearings

 

 

The Life of a DCPP Case, Part Three - The Stipulation Conference and Case Management Conference

The Stipulation Conference and Case Management Conference

Once your lawyer has received the discovery from the Deputy Attorney General and Law Guardian,
he or she will want to discuss your option with you.   Usually the Court will set a date for a Case Management Conference or a Stipulation Conference before setting a date for the fact-finding trial.

Stipulations

Your first decision you need to discuss with your lawyer is whether or not to stipulate, or admit to, a specific allegation of abuse or neglect in the complaint.  Do not make this decision without discussing it with your lawyer first. 

Before you have this discussion, you should have already outlined your response to the Division's complaint, as if you were answering it.   This will make it easy for your lawyer to understand which facts in the Division's complaint are true and which ones you disagree with. 

If  you stipulate, the Judge can order that your child continue in placement and order you to comply with services that the Division wants you to use in order to get your child back.  Your lawyer will find out what these services are before you decide to stipulate.

Every case is different, but in general your lawyer would ideally prefer to take your case to trial.  However, in some situations, your lawyer may advise that  a stipulation would be the better course of action.   This post is not legal advice, however in every case, your lawyer will discuss reasons why you should stipulate, and the reasons why not.  

Reasons why you should stipulate:

• You acknowledge that a least some of the allegations against you are true;
• You wish to apply to participate in Family Drug Court in one of the counties that has one.  A Stipulation is necessary to apply to the program and your lawyer will explain the rights you will need to waive in order to participate.
• Your case is going well and your child has already been returned to you, or will be shortly.  In this situation you and your lawyer may decide that it is best to just move the case along.
• The Division has notified your lawyer that it wishes to prove the allegations against you by "clear and convincing evidence."  The standard of proof for a fact-finding trial is "preponderance of the evidence" which is a very low standard of proof.   As you may know, in criminal cases the standard of proof is "beyond a reasonable doubt."  In cases for Termination of Parental Rights, the standard is something in between, "clear and convincing."  Although you are not facing trial for Termination of Parental Rights now, if the Judge makes a finding of fact by clear and convincing evidence, that means that the Division has already proven part of its case if they seek to terminate your rights later.
• A stipulation cannot be used against you in another court, although any statements you make in on the record concerning the facts of the case can be.
• Your attorney feels it is best to litigate the facts later, at a trial for Termination of Parental Rights, if such a trial cannot be avoided.

Reasons why you should not stipulate and proceed to trial:

• You will waive your right to a fact-finding trial and any appeal. 
• You also waive your right to appeal the Division's internal finding of abuse or neglect before an administrative law judge. 
• Your name will be placed on the Division's registry of offenders (I will discuss this in detail in another post) and you will not be able to ask for it to be removed.
• Your attorney has determined that you have a strong defense on the facts and wishes to preserve issues for appeal even if you lose.

Case Management and Stipulation Conferences

The Court has lots of DCPP cases on the calendar, and wants to dispose of some of them before they go to trial.  Sometimes the court will schedule a Stipulation or Case Management Conference before the fact-finding date to give the attorneys a chance to discuss a possible stipulation.

Your lawyer will talk to the DAG and find out which facts the Division wants you to admit in your stipulation.  Your lawyer and the DAG will agree on the language and will ask you if you can agree to the stipulation.  If you stipulate, you will be required to fill out a form which your lawyer will discuss with you, and testify on the record.  If you do not stipulate, the court will set a date for the Fact-Finding Trial.

Conversion To "Title 30"

In some cases, the Division may choose not to seek a finding of abuse or neglect against you, your co-parent, or both, but will instead ask for the court to keep the case open under "Title 30."  That means that DCPP does not believe abuse or neglect occurred by definiition, but does believe that your family needs services.  Your lawyer may advise  you to stipulate under Title 30.

Keep in mind that the Division can conclude its abuse/neglect investigation in four ways, substantiated, established, not established, or unfounded.  Sometimes the Division will seek to dismiss the case under Title 9 and proceed under Title 30  even when their finding is "established."  The courts have determined that there is no right to a fact-finding over a finding of "established" and that the only remedy is an administrative appeal.  That means the Division may keep a record of a finding of "Established" even if the case is dismissed under Title 9 and proceeds under Title 30.  (Your lawyer can advise you how to proceed in this situation).

Next: The Fact-Finding Trial and Disposition Hearing

The Life of a DCPP Case, Part Two - The Return Date and Case Management Conference

The Return Date and Case Management Conference

Let us assume at this point that the Court has ordered your child to remain in the custody of the Division.  Your child may remain in foster care, but at this point the Division should be looking to place your child with a relative or family friend if possible.   Remember, the Division, not the court, will determine what the placement will be.  However at some point during the process you may be notified of a meeting of the Child Placement Review Board, which makes placement recommendations.  You may attend this meeting and advocate for the placement that you think is best for your child.  It is not necessary for a lawyer to appear at such a meeting.

Your case will typically return to court within two weeks of your hearing.  At this point, you will definitely have a Public Defender if you qualified for one.  Usually, the Judge will conduct a short hearing on the return date.  The Court will probably schedule a date for a Case Management Conference to be held within the next month, and a date for a fact-finding trial to be held at some point after that.   Your lawyer will ask for as much parenting time with your child as the court will allow, and may be able to convince the judge that your child can return home soon if certain services are put in place immediately.  Typically, the courts will order only one hour a week of supervised parenting time if your child is in foster care.  Your lawyer will want you to have additional time.  This can be achieved if your child is placed with a relative or friend who can supervise.  Even if you do not have a relative caregiver, you may suggest relatives who can be approved to supervise visits.

Your attorney at this point will want to meet with you to discuss the complaint in detail.  Although unlike in other cases, the defendant does not usually file an answer to the complaint, your lawyer has the right to do so!  Although an answer is not necessary, you should go over each and every paragraph of the complaint against you.  Although you will probably disagree with the majority of the allegations in the complaint, here may be some facts contained in the complaint that you can admit are true.   When your lawyer has this discussion with you, he or she will understand your side of the case, and will be prepared for the fact-finding trial that will be scheduled.   You should let your lawyer know about any potential witnesses, or any other evidence that will be helpful to your defense.

At this point your lawyer will seek discovery to get information about your case.  The Division will provide your lawyer with all the evidence and witnesses it will present in the fact-finding trial.  Your lawyer can also inspect the entire DCPP file at their office.   If you have qualified for the public defender, your lawyer can request payment for whatever type of expert evaluation he or she arranges for you.  Your lawyer cannot interview your child but can request an evaluation of your child.
At this point, you may not know exactly what you have to do to regain custody.  The court will determine what services are necessary at a dispositional hearing, which generally takes place on the date of the fact-finding trial.

Next:  The Stipulation Conference and Case Management Conference