If you follow child protection law in New Jersey then you know how rare it is for the Appellate Division to publish one of its DCPP decision. DCPP decisions make up a large part of the Appellate Division’s docket due to the high number of indigent parents involved in these cases, their right to appeal, and the state’s obligation to provide them legal representation through the office of the public defender. However, they are rarely overturned and rarely published.
On October 30, 2018, the Appellate Division published DCPP v. P.O. & M.C.D, a DCPP guardianship case with a striking fact pattern. Although it affirmed the decision below to terminate the litigants’ parental rights, it emphasized how the due process rights of parents in DCPP cases must be protected. The parents in this case were illegal immigrants from Peru who had a long history with the Division, stemming back to 2007. As with most termination of parent rights (“TPR”) cases, the details are sad: the mother was cognitively impaired and the father reportedly required anger management. After one removal and successful reunification over a year later, the children were left alone at ages 7 and 2 which prompted their immediate removal and placement in a resource home.
Both parents were eventually charged with child endangerment and were deported back to Peru in 2013. Pursuant to its own regulations, the Division must explore relative resource homes before placing the children with strangers. According to the court decision, no suitable relatives could be found, in part because one of the relatives proposed lived in Peru and was ruled out by a classic red-tape scenario that needs its own blog post: Before placing a child, NJ law requires a home study to make sure it’s suitable and safe; according to the Hauge convention, such a study must be carried out by the State Department, which can only conduct it when the parents’ rights have already been terminated. However, the parents proposed family friends, the Rivas family, as a potential placement. In December 2013, both parents participated by phone in an identified surrender of their parental rights to the Rivas family.
Ten months later, the trial court vacated the identified surrender for reasons not given in the Appellate Decision but likely to do with the fact that the children had been with the same resource family for years at that point and only visited with the Rivas family for less than a year. Since the identified surrender was vacated, the guardianship case reopened and the parents rights were reinstated. The Division was able to contact the father and provide him services internationally, but not the mother until some time later. The court moved forward with a TPR trial and found that the Division had proven its case under the four prongs necessary to terminate parental rights. Crucial to the Court’s findings, both parents participated by phone during the trial.
On appeal, the parents raised for the first time claims that their due process had been violated because they did not receive notice of the dissolution of the identified surrender, and that several of the subsequent court appearances were never recorded and placed on the record. The Appellate Division found that these issues were of important public legal interest and addressed them. The Appellate Division agreed that the parents should have been notified before the identified surrender was vacated pursuant to NJSA 30:4C-54. It rejected the Division’s argument that the statute only requires that the legal guardians be notified and the Division was the children’s legal guardian. It also noted that the Division should have sought a court order earlier in order to obtain the parents’ contact information to provide them this notice.
The Appellate Division also noted the importance of every proceeding being placed on the record to allow for meaningful Appellate review and the decision not to do so violated court rules. However, the Appellate Division found neither issue fatal to the TPR determination below since the parents’ rights were reinstated and both participated in the trial via telephone. The Court also noted that after 7 years, the children deserved permanency. This case demonstrates another situation in which indigent parents’ procedural due process rights are pit against the need for permanency of the children. Had the children been out of placement only 2 years instead of 7, the case very easily could have been remanded. Will the parents file a petition for certification to the Supreme Court? Stay tuned…
The older child was removed as a toddler but eventually returned to the parents after approximately 18 months of services when the case was closed. The case reopened, and the children were removed in ______, when the older child at age 7, was left home alone with his two-year old brother, whom the 7 year old left home to go to school where he told his teachers. The children were placed with a resource family where they remained for 7 years.
