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.
http://www.law.com/jsp/article.jsp?id=1202462796054&Parental_Rights_Trump_Bonds_Formed_Between_Child_and_Foster_Parents_NJ_Court_Rules
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Friday, June 18, 2010
Regaining children unlikely Parents whose lawyers failed to file paperwork face a tough task, experienced attorneys say
Regaining children unlikely
Parents whose lawyers failed to file paperwork face a tough task, experienced attorneys say.
By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
WILKES-BARRE – The 15 Luzerne County parents who lost appeals of the termination of their parental rights after their attorneys failed to file court papers will face a nearly insurmountable obstacle should they seek to get their children back, two attorneys who specialize in child welfare law said.
RELATED HEADLINES
How to direct parent cases being mulled
The parents would first have to convince the state Superior Court to reinstate their appeal. The legal grounds for making that argument are extremely limited, making it unlikely they will succeed, the attorneys said.
Even if they do get their appeal reinstated, the chance they will prevail in getting the case overturned are slim, the attorneys said.
Since 2005, at least 53 parents have filed appeals of termination rulings entered in Luzerne County to the state Superior Court, according to a review of docket sheets. Not a single case was overturned by the court.
In 27 of the cases, the appellate court affirmed the trial judge’s order. Of the remaining 26 cases, 22 were dismissed because attorneys did not file a legal brief detailing the alleged errors the trial judge made. The Luzerne County Public Defender’s Office represented 15 of those 22 people.
Of the remaining four cases, two are pending, one was voluntarily withdrawn and one was dismissed on other grounds that are not specified.
Luzerne County Chief Public Defender Al Flora Jr. is continuing to investigate why attorneys in his office failed to file legal briefs in the 15 cases that were uncovered earlier this week by The Times Leader, and to determine if there is any legal recourse to get the appeals reinstated.
Should the appeals be restored, it would place the Superior Court in the difficult position of having to weigh the rights of the parents against what’s in the best interest of the children.
Attorney Martin Guggenheim, a professor at New York University, said he believes the parents would have virtually no chance of prevailing because, even if they can show an egregious violation of their rights, the court will give great deference to the impact its decision would have on the children involved.
“Because the child is seen as the innocent victim of someone else’s screw-up, the ordinary remedy to restore the harmed party to the place they were before the mistake now has to be considered in a broader context,” Guggenheim said. “Even if something can be done to fix this procedurally, you can’t overlook the reality that this will have a devastating impact on the parents’ chances of winning on the merits.”
Guggenheim is president of National Coalition for Child Protection Reform, a nonprofit group based in Virginia that advocates for changes in child welfare law to ensure parents’ and children’s rights are protected.
Guggenheim and Mike Pendolphi, a Forty Fort attorney who handles many child dependency cases, said termination of parental rights cases are extremely difficult to win on appeal because of the standard of review the court employs.
At the trial court phase, the judge makes a determination based on what is in the best interest of the child. An appellate court can only overturn the trial judge if it finds he or she committed a legal error, or if there is other evidence the judge somehow abused their discretion. Both are extremely high standards.
Pendolphi, who has specialized in family law for 19 years, said it’s rare, but he has occasionally prevailed in convincing the trial court to rule in favor of a parent in a termination case. He has never won an appeal of a termination case with the Superior Court, however.
Pendolphi said the 15 Luzerne County parents whose appeals were lost for failure to file legal briefs face an ever bigger challenge because of the age of the cases.
“Some of these appeals were dismissed years ago. Now you have children who have already been adopted out who have not seen their biological parents for years. You’re going to have to convince a trial court it’s in the best of a child to uproot him from that family and transfer him back to parents he doesn’t even know,” he said.
Pendolphi does not dispute that the best interests of the child should be considered. The problem, he said, is the system is often stacked against the parents in seeking reunification.
One of the biggest obstacles to reunification is the delay in obtaining the counseling, parenting classes or drug-and-alcohol services that are often required of parents, he said. That keeps the child out of the home, precluding the parents from developing a bond with them.
Often times a parent will complete one program, but Children and Youth will then determine the parent needs additional services. By the time parents obtain referrals and complete the other programs, the child may be in foster care for 15 of the past 22 months. That triggers a federal law that allows the agency to seek the termination of parental rights.
Attorney Mike Shucosky, director of family court for the county, acknowledged there are delays in getting parents into some treatment programs, particularly drug-and-alcohol, which can takes “weeks sometimes months,” he said.
While federal law mandates agencies seek to terminate rights once the child hits that 15-month mark, the agency can extend the deadline if it believes there are compelling reasons to do so, said Frank Castano, executive director of Children and Youth.
“Everyone is aware there is a clock and we need to follow federal law,” Castano said. “There are certain compelling reasons to extend it. If they are working diligently on whatever treatment that’s outlined in the service plan, that will be acknowledged and presented to the court.”
Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.
http://www.timesleader.com/news/Regaining_children_unlikely_06-17-2010.html
Parents whose lawyers failed to file paperwork face a tough task, experienced attorneys say.
By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
WILKES-BARRE – The 15 Luzerne County parents who lost appeals of the termination of their parental rights after their attorneys failed to file court papers will face a nearly insurmountable obstacle should they seek to get their children back, two attorneys who specialize in child welfare law said.
RELATED HEADLINES
How to direct parent cases being mulled
The parents would first have to convince the state Superior Court to reinstate their appeal. The legal grounds for making that argument are extremely limited, making it unlikely they will succeed, the attorneys said.
Even if they do get their appeal reinstated, the chance they will prevail in getting the case overturned are slim, the attorneys said.
Since 2005, at least 53 parents have filed appeals of termination rulings entered in Luzerne County to the state Superior Court, according to a review of docket sheets. Not a single case was overturned by the court.
In 27 of the cases, the appellate court affirmed the trial judge’s order. Of the remaining 26 cases, 22 were dismissed because attorneys did not file a legal brief detailing the alleged errors the trial judge made. The Luzerne County Public Defender’s Office represented 15 of those 22 people.
Of the remaining four cases, two are pending, one was voluntarily withdrawn and one was dismissed on other grounds that are not specified.
Luzerne County Chief Public Defender Al Flora Jr. is continuing to investigate why attorneys in his office failed to file legal briefs in the 15 cases that were uncovered earlier this week by The Times Leader, and to determine if there is any legal recourse to get the appeals reinstated.
Should the appeals be restored, it would place the Superior Court in the difficult position of having to weigh the rights of the parents against what’s in the best interest of the children.
Attorney Martin Guggenheim, a professor at New York University, said he believes the parents would have virtually no chance of prevailing because, even if they can show an egregious violation of their rights, the court will give great deference to the impact its decision would have on the children involved.
“Because the child is seen as the innocent victim of someone else’s screw-up, the ordinary remedy to restore the harmed party to the place they were before the mistake now has to be considered in a broader context,” Guggenheim said. “Even if something can be done to fix this procedurally, you can’t overlook the reality that this will have a devastating impact on the parents’ chances of winning on the merits.”
Guggenheim is president of National Coalition for Child Protection Reform, a nonprofit group based in Virginia that advocates for changes in child welfare law to ensure parents’ and children’s rights are protected.
Guggenheim and Mike Pendolphi, a Forty Fort attorney who handles many child dependency cases, said termination of parental rights cases are extremely difficult to win on appeal because of the standard of review the court employs.
At the trial court phase, the judge makes a determination based on what is in the best interest of the child. An appellate court can only overturn the trial judge if it finds he or she committed a legal error, or if there is other evidence the judge somehow abused their discretion. Both are extremely high standards.
Pendolphi, who has specialized in family law for 19 years, said it’s rare, but he has occasionally prevailed in convincing the trial court to rule in favor of a parent in a termination case. He has never won an appeal of a termination case with the Superior Court, however.
Pendolphi said the 15 Luzerne County parents whose appeals were lost for failure to file legal briefs face an ever bigger challenge because of the age of the cases.
“Some of these appeals were dismissed years ago. Now you have children who have already been adopted out who have not seen their biological parents for years. You’re going to have to convince a trial court it’s in the best of a child to uproot him from that family and transfer him back to parents he doesn’t even know,” he said.
Pendolphi does not dispute that the best interests of the child should be considered. The problem, he said, is the system is often stacked against the parents in seeking reunification.
One of the biggest obstacles to reunification is the delay in obtaining the counseling, parenting classes or drug-and-alcohol services that are often required of parents, he said. That keeps the child out of the home, precluding the parents from developing a bond with them.
Often times a parent will complete one program, but Children and Youth will then determine the parent needs additional services. By the time parents obtain referrals and complete the other programs, the child may be in foster care for 15 of the past 22 months. That triggers a federal law that allows the agency to seek the termination of parental rights.
Attorney Mike Shucosky, director of family court for the county, acknowledged there are delays in getting parents into some treatment programs, particularly drug-and-alcohol, which can takes “weeks sometimes months,” he said.
While federal law mandates agencies seek to terminate rights once the child hits that 15-month mark, the agency can extend the deadline if it believes there are compelling reasons to do so, said Frank Castano, executive director of Children and Youth.
“Everyone is aware there is a clock and we need to follow federal law,” Castano said. “There are certain compelling reasons to extend it. If they are working diligently on whatever treatment that’s outlined in the service plan, that will be acknowledged and presented to the court.”
Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.
http://www.timesleader.com/news/Regaining_children_unlikely_06-17-2010.html
Social Worker Charged With Fraud
Social Worker Charged With Fraud
He Is Accused Of Not Following Up On Reports Of Abuse
http://www.wisn.com/news/23942342/detail.html
He Is Accused Of Not Following Up On Reports Of Abuse
http://www.wisn.com/news/23942342/detail.html
Trial Begins For Woman Accused Of Hoarding Donated Toys meant for Foster children
Virginia Kelly
Story: Coordinator: Toy Drive Nearly Ran Dry As Woman Hoarded Toys
Story: Woman Accused Of Stealing Toys Proclaims Innocence
Story: Woman Accused Of Stealing From Toys For Tots
Video: Foster Mom Claims She Did Not Steal Donated Toys
Video: Foster Mom Accused Of Stealing Donated Toys
Trial Begins For Woman Accused Of Hoarding Donated Toys
Virginia Kelly, 75, Accused Of Grand Theft, Embezzlement
POSTED: 4:10 am PDT June 18, 2010
UPDATED: 7:37 am PDT June 18, 2010
SAN DIEGO -- Opening statements are scheduled Friday in the trial of a San Ysidro woman accused of hoarding thousand of toys donated as Christmas gifts to San Diego-area children.
Virginia Prieto Kelly, 75, faces four years in state prison if convicted of grand theft and embezzlement charges.
Her attorney has said Kelly, the president of the Latino Foster Parents Association, may have been overwhelmed by the quantity of toys, but that she didn't intend to profit from the gifts.
Investigators testified during a preliminary hearing last year that they found thousands of new, unopened toys, with an estimated value of $200,000, at three South Bay locations.
The gifts came from holiday drives conducted by Marine Toys for Tots, the Child Abuse Prevention Foundation and similar groups so foster children could receive Christmas presents, according to the District Attorney's Office.
Judge Margie Woods -- who presided over the preliminary hearing -- said Kelly was more of a "middle person" who kept an inordinate amount of the toys, which was not consented to by Toys for Tots.
A D.A.'s investigator said he watched as Kelly and others loaded boxes and large bags from her home into cars, which he then followed to a storage facility in Chula Vista.
Two weeks later, the investigator served a search warrant on the storage unit and found nearly 2,000 toys. Even more toys were found in other locations, the investigator testified.
When interviewed, Kelly said she planned to distribute the presents, her attorney said.
http://www.10news.com/news/23944744/detail.html
Story: Coordinator: Toy Drive Nearly Ran Dry As Woman Hoarded Toys
Story: Woman Accused Of Stealing Toys Proclaims Innocence
Story: Woman Accused Of Stealing From Toys For Tots
Video: Foster Mom Claims She Did Not Steal Donated Toys
Video: Foster Mom Accused Of Stealing Donated Toys
Trial Begins For Woman Accused Of Hoarding Donated Toys
Virginia Kelly, 75, Accused Of Grand Theft, Embezzlement
POSTED: 4:10 am PDT June 18, 2010
UPDATED: 7:37 am PDT June 18, 2010
SAN DIEGO -- Opening statements are scheduled Friday in the trial of a San Ysidro woman accused of hoarding thousand of toys donated as Christmas gifts to San Diego-area children.
Virginia Prieto Kelly, 75, faces four years in state prison if convicted of grand theft and embezzlement charges.
Her attorney has said Kelly, the president of the Latino Foster Parents Association, may have been overwhelmed by the quantity of toys, but that she didn't intend to profit from the gifts.
Investigators testified during a preliminary hearing last year that they found thousands of new, unopened toys, with an estimated value of $200,000, at three South Bay locations.
The gifts came from holiday drives conducted by Marine Toys for Tots, the Child Abuse Prevention Foundation and similar groups so foster children could receive Christmas presents, according to the District Attorney's Office.
Judge Margie Woods -- who presided over the preliminary hearing -- said Kelly was more of a "middle person" who kept an inordinate amount of the toys, which was not consented to by Toys for Tots.
A D.A.'s investigator said he watched as Kelly and others loaded boxes and large bags from her home into cars, which he then followed to a storage facility in Chula Vista.
Two weeks later, the investigator served a search warrant on the storage unit and found nearly 2,000 toys. Even more toys were found in other locations, the investigator testified.
When interviewed, Kelly said she planned to distribute the presents, her attorney said.
http://www.10news.com/news/23944744/detail.html
Thursday, June 17, 2010
Social workers forced to return twin babies to their parents (Thanks to a FAIR Judge)
Wednesday, June 16, 2010, 10:1511
Social workers forced to return twin babies to their parents
CITY social workers have been ordered to return twin baby boys to their parents after a judge ruled they should not have been taken away.
The boys were taken from their mother in hospital soon after their premature birth.
A Nottingham County Court judge made an interim care order in favour of Nottingham City Council authorising their transfer to temporary foster care.
But top family judge Lord Justice Thorpe said the move was unjustified.
He said there had been "no welfare concerns" brought up about the parents' ability to raise the boys "on a day-to-day basis".
And he said the reasons given for separating the twins from their parents "do not begin to meet the high threshold set by the authorities of this court".
Lord Justice Thorpe was sitting at London's Appeal Court with the President of the Family Division, Sir Nicholas Wall, and Mr Justice Hedley.
He said the county court judge had focused on the risk of the boys suffering "emotional harm" in their parents' care.
He said there were "historic" concerns about the parents' care of their older children, they had both striven to prove their parental skills and there was "no doubt as to their ability to care for the twins on a day-to-day basis".
The ruling means the boys must be returned to their parents as soon as practically possible, although a court hearing set for the autumn will decide their long-term future.
With the help of expert parental counselling, the couple hope to prove their long-term ability to raise their boys - who were born prematurely but are now in good health.
The ruling prompted loud sighs of relief from mother and father - both in their 20s - who later hugged their lawyers in gratitude.
The father said he was overjoyed by the court's decision, declaring himself "sick with relief".
http://www.thisisnottingham.co.uk/news/Social-workers-forced-return-twin-babies-parents/article-2313851-detail/article.html
Social workers forced to return twin babies to their parents
CITY social workers have been ordered to return twin baby boys to their parents after a judge ruled they should not have been taken away.
The boys were taken from their mother in hospital soon after their premature birth.
A Nottingham County Court judge made an interim care order in favour of Nottingham City Council authorising their transfer to temporary foster care.
But top family judge Lord Justice Thorpe said the move was unjustified.
He said there had been "no welfare concerns" brought up about the parents' ability to raise the boys "on a day-to-day basis".
And he said the reasons given for separating the twins from their parents "do not begin to meet the high threshold set by the authorities of this court".
Lord Justice Thorpe was sitting at London's Appeal Court with the President of the Family Division, Sir Nicholas Wall, and Mr Justice Hedley.
He said the county court judge had focused on the risk of the boys suffering "emotional harm" in their parents' care.
He said there were "historic" concerns about the parents' care of their older children, they had both striven to prove their parental skills and there was "no doubt as to their ability to care for the twins on a day-to-day basis".
The ruling means the boys must be returned to their parents as soon as practically possible, although a court hearing set for the autumn will decide their long-term future.
With the help of expert parental counselling, the couple hope to prove their long-term ability to raise their boys - who were born prematurely but are now in good health.
The ruling prompted loud sighs of relief from mother and father - both in their 20s - who later hugged their lawyers in gratitude.
The father said he was overjoyed by the court's decision, declaring himself "sick with relief".
http://www.thisisnottingham.co.uk/news/Social-workers-forced-return-twin-babies-parents/article-2313851-detail/article.html
Reforms Help States Cut Foster-Care Populations
Reforms Help States Cut Foster-Care Populations
Fewer kids in foster care: Some states make major strides to keep more families together
http://abcnews.go.com/US/wireStory?id=10832736&page=4
Fewer kids in foster care: Some states make major strides to keep more families together
http://abcnews.go.com/US/wireStory?id=10832736&page=4
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