July 01, 2014

Termination of Parental Rights Was Inappropriate Based on Incarceration Alone

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re T.G., 2014 WL 2440978 (N.J.).

In case where incarcerated father maintained contact with daughter, had been provided little to no assistance toward reunification or another permanency goal, and evidence was conflicting as to the effect of severing the parent-child bond, trial court properly found state failed to meet clear and convincing standard to terminate parental rights. 

A father lived with his daughter for the first six months of her life but was then incarcerated for five years. During most of that time, she remained with her mother. Due to her young age, he had asked that she not visit him in prison. The father spoke on the phone with his daughter and wrote letters however.

The daughter was removed from the mother when she was four due to substance abuse. She was placed with the maternal grandmother and the father approved the placement. The court allowed continued contact by letter and phone. 

Approximately a year later, the state moved to terminate parental rights when the mother would not remain sober. 

The mother surrendered her rights. The father contested the termination. Although he did not seek custody and continued to approve of the grandmother having custody, he wanted to maintain contact and build on his relationship with his daughter after his upcoming release from prison. 

Though the grandmother did not oppose having guardianship and wanted to continue contact with the father, she expressed a preference for adoption due to the legal security. 

The agency caseworker testified that they did not provide many services to the father while he was incarcerated. She did encourage the child to write letters to him. She testified that the child said her father always wrote her back promptly and that he called her frequently. 

A psychologist testified at trial that the father did not have a strong bond with the child, despite not conducting a bonding evaluation. In sum, he testified the father would need years of services due to the absence from the child’s life. 

The father testified that he had participated in services including anger management, parenting, and behavioral modification programs in prison. He also claimed the agency never helped him obtain calling cards when the grandmother complained of the high bills from the frequent collect calls. He testified that when he spoke to his daughter, she said she looked forward to seeing him and watching movies. 

The trial court found the state failed to prove by clear and convincing evidence grounds for termination. 

The state appealed and the appellate court reversed in an unpublished opinion. The father appealed to the New Jersey Supreme Court, which reinstated the trial court opinion denying the petition to terminate parental rights.

The supreme court went through the four statutory requirements for termination, each of which the state must prove by clear and convincing evidence. 

First, the state must prove that the child’s safety and health have been or will be endangered by the parental relationship. A lengthy incarceration is a relevant but not dispositive factor. The courts should look to whether incarceration results in abandonment or whether the crimes that led to incarceration showed a parent could not provide a safe home in the future. 

Here, the child was, as far as the father knew, safely with the mother when he was first incarcerated. When she was removed, he increased his level of contact with her. In contrast with other cases where parental rights have been terminated based on the parent’s incarceration where the parent made little effort to maintain contact. The supreme court also found the charges that the father was in prison for lacked a sufficient bearing on father’s fitness to parent. 

Second, the state must prove the parent is unwilling or unable to provide a safe home and the delay of permanency will add to the harm. The appellate court characterized the father’s approval of his child remaining in the grandmother’s home as a lack of willingness to reunify. However, this interpretation ignored the fact that many parents who do not seek full custody do seek to maintain other parental rights, including visitation. 

The supreme court did find that the agency’s argument regarding the strength of the child’s bond to the grandmother was persuasive. However, the trial court was faced with a high burden of clear and convincing proof and did not act improperly in finding the agency did not meet the burden given the deferential standard of appeal.

Third, the agency must prove it made reasonable efforts to help the parent correct the conditions. Here, the agency did little to help the father maintain his relationship or prepare for his pending release from prison. The agency did not help him contact his daughter and did not investigate how prison programs compared to services they might have offered.

Fourth, the state must prove termination will not do more harm than good. No one disputed the child had a strong bond with the grandmother and was willing to be adopted by her. However, testimony by the caseworker, grandmother, and father supported the father’s strong bond with his child. Because of this strong evidence, the trial court was reasonable in not crediting a psychologist’s testimony to the contrary.