First court appearance in your termination of parental rights case

Sometimes parents are able to appear in court when DYFS applies to the judge for the order to show cause that starts their termination of parental rights case. However, in most instances, the first time a parent goes to court in a termination of parental rights case will be the return date, the date on which the order to show cause says the parent must appear.

If English is not your native language and you do not understand English well enough to know what is being said, ask for an interpreter to be present each time you are in court.

Discovery

Beginning at the first court appearance, both sides will gather information for the trial. This process of information gathering before a trial is called discovery. Under the discovery rules, DYFS is required to give your lawyer copies of all of the reports and other papers it is relying on to make its case against you. Your lawyer is allowed to look at the DYFS file about you and your children. The DYFS reports and file are very important. You should discuss the information in the reports and the file with your lawyer. If your lawyer wants more information from DYFS or other sources that refuse to provide it, your lawyer will need the court’s permission to get it.

Expert psychological and other evaluations

Psychological evaluations are very important in parental rights termination cases. DYFS is likely to convince the court to order you to be evaluated by a psychologist or other mental health expert it selects. The court may also order you to go to substance abuse evaluations or physical examinations. If you do not attend and cooperate with these court-ordered evaluations and examinations, you will almost certainly lose your parental rights. A DYFS expert may also observe you and your child together to determine what kind of relationship you and your child have and how emotionally attached your child is to you. If one of DYFS’ claims is that your parental rights should be terminated because the child has become emotionally bonded or attached to foster parents who want to adopt him or her, the foster parents’ relationship with the child must also be evaluated. The DYFS expert will try to determine if separation from them will cause your child “serious and enduring harm.”

An evaluation by a potential expert witness is not a private therapy session. There is no doctor-patient privilege or confidentiality. The expert evaluator will prepare a report for DYFS that may be used in court against you. The report will describe significant events and conversations that occurred during your evaluation.

Sometimes lawyers agree on joint experts, but you probably will want to have your own defense expert in this case. Part of your lawyer’s job is to arrange for an expert to help in your defense. After your expert has evaluated you, your child and, in some cases, the foster parents, the expert may be able to testify to positive things about you. Your expert also may be able to testify that he or she disagrees with negative testimony DYFS’ experts may give about you. If your own expert reaches conclusions that would hurt rather than help your case, your lawyer does not have to call the person to testify at your trial.

In most cases, if DYFS’ experts decide that you are capable of caring for your child and that your child is attached to you emotionally, your chances of getting the child back are good. On the other hand, if the DYFS experts decide that your child might be harmed if he or she is returned to you, DYFS will use their evaluations as evidence against you.

If you are financially eligible to be represented by a lawyer through the Office of Parental Representation (OPR) of the Public Defender’s Office, even if you are represented by a private lawyer or a Legal Services lawyer, your lawyer can apply to the OPR for money to pay your defense expert fees.

Always be on time for the expert evaluations you are to attend. Be polite, and follow the instructions of whoever is evaluating you. Remember that, at trial, the experts who have evaluated you will be telling the judge what they think of you.

How you act while your case is pending is important

Always keep in mind that DYFS, the law guardian, and the judge are forming opinions about you based on your behavior. Try not to express anger toward DYFS workers, foster parents, therapists, the judge, other court officials, any of the lawyers, or anyone else. Angry, aggressive behavior will probably hurt your chances of winning your case. Be courteous, respectful, and calm in the following situations: in court, at visits with your child, in your treatment program, at your therapy, at parenting classes, and when anyone from DYFS or the law guardian’s office visits with you. When you have the opportunity to do so, show that you are willing to cooperate and do all of the reasonable things you may be asked to do. Show that you care about and love your child very much.

What you say may be used against you

Things you say to DYFS workers can be used against you in your termination of parental rights case and also may be used against you in a criminal case. The same is true of things you say to other people, including therapists or anyone who is evaluating or investigating you. Only things that you tell your lawyer are confidential.

Defaults

If you miss any court hearing or any court-ordered evaluation, a default can be entered against you. Defaults are dangerous if you want to defend against termination of parental rights. Once a default is entered, DYFS can ask for a proof hearing instead of a regular trial. At a proof hearing, DYFS will still have to prove all of the facts the law requires for termination of parental rights, and your lawyer (or you, yourself, if you have no lawyer) will be allowed to cross-examine the witnesses presented by DYFS or the law guardian. Objections to evidence offered against you will also be permitted at the proof hearing. However, no defense experts or other witnesses or any other evidence on your behalf will be allowed.

You may be able to undo a default that has been entered against you by explaining your reason for not going to the court hearing or evaluation you missed and asking the judge to vacate the default. If your default is vacated, your right to a complete trial will be given back to you. Be prepared to give your lawyer and the court evidence of a serious event or circumstance that prevented your attendance, such as an emergency room discharge form if you were in a car accident on the way to court.

You need to contact your lawyer as soon as possible if you miss court or an evaluation. Your lawyer will know or can find out if a default has been entered and can try to vacate it, with your cooperation.

Child Placement Review Board hearings

While your termination of parental rights case is pending, you may get a letter telling you that a hearing about your child is scheduled before the Child Placement Review Board (CPRB). The CPRB is a volunteer group of community members that makes recommendations to the court about children who are in DYFS custody and have been placed outside of their homes.

The CPRB in the county where your case is being heard will review your child’s placement at least once a year. When it is time to review your child’s placement, DYFS will provide the CPRB with a report. The CPRB will also invite you, your child (if he or she is old enough), your child’s caretakers, and other interested people to inform the CPRB about how your child is doing and what permanent plans should be made.

You should attend all CPRB hearings that concern your child so that you can give the CPRB information about your child, including progress you have made toward being able to get your child back, and what you think the permanent plan for your child should be. You should make sure that your lawyer knows about the hearing and ask him or her to come with you.

After reading DYFS’ report and listening to the people who come to discuss your child, the CPRB will make recommendations about your case to the court. These recommendations will include whether your child should be returned home, adopted, or kept in a temporary out-of-home placement. The CPRB is required to provide you and your lawyer with a copy of those recommendations, so that you have an opportunity to object to them. If you have no objection, a judge will usually sign an order based on the CPRB’s recommendation. If you object to the recommendations, the judge will consider the objections and possibly hold a hearing before deciding whether or not to sign the order containing the CPRB’s recommendations.

Since there is an active termination of parental rights case against you, the CPRB will probably recommend that your parental rights be terminated so that your child can be adopted. Your parental rights cannot be terminated by a CPRB order. (They can only be terminated by your voluntary surrender or by DYFS proving its case against you before the judge.) You should still try to convince the CPRB that it should recommend an alternative other than termination of your parental rights.

After your parental rights are terminated, the CPRB will continue to review your child’s case until the child is adopted. In very unusual cases, Child Placement Review Boards have allowed biological parents and other relatives to provide information and make requests about their children who have not been adopted after parental rights have been terminated.