As a parent, having your parental rights terminated is one of the most devastating events that may occur in your life. A termination of parental rights means that any legal relationship between you and your child ceases to exist. This means cutting off all legal and physical ties with your children immediately. You will not be allowed to contact them, receive information about them, or visit with them unless some special arrangement is in place, which is very rare. But in certain cases, you may be able to reverse the termination.
The information in this article is for parents who have gone through the trial court proceedings, appealed the termination of rights and lost, and who are now at a point where they want to look again at the termination. This article mainly focuses on children who have not been adopted and are still in foster care under the Division of Child Protection and Permanency (formerly known as DYFS).
The process to reverse or “vacate” an order for termination of parental rights is by no means an easy undertaking, but this article will give you information about your available legal options. In New Jersey, there is a statute that allows parents to appear in front of the judge and argue that it is no longer “equitable that the judgment or order have prospective application.” This simply means that a previous order that led to your rights being terminated should no longer be applicable because your circumstances have drastically changed. Below are a few helpful guidelines and answers to common questions associated with this process.
What gives me the right to challenge a previous termination of my parental rights?
In technical terms, your “right” comes from a New Jersey court rule: 4:50. Relief From Judgment or Order. It may be helpful to review this statute in the box before going to court.
4:50-1. Grounds of Motion
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time or to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or oder has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
Where do I start?
Before you start anything, make sure that you understand exactly what you are asking for. You want a chance to go in front of the court and ask the court to vacate (reverse) the termination order in hopes of regaining custody of your children. The court wants to see that the reasons for the termination of your rights in the first place are no longer affecting your ability to care for your child AND that reunification is in the best interest of your child. The courts look at certain factors, which you should keep in mind when showing whether something is in the best interest of the child. The court will look at where the child is now, the relationship to the person taking care of them, and whether you have a relationship with your child post-termination. The court may also look at factors relating to whether there are siblings who were born after the termination and whether a relationship should be encouraged between the children.
You will have the burden of proving that some events have occurred since the termination of your parental rights that, if not addressed, will result in certain unfairness if the order is to continue to be enforced. For example, let’s say your parental rights were terminated due to your substance addiction. Since the termination of your rights you have completed a rehabilitation program and shown that your substance addiction or past addiction will not affect your parenting. Let’s also say that your child has not been adopted and is floating in limbo within the foster care system. A successful argument would include showing the judge that you can provide a safe and stable home for your child, you have successfully completed a rehabilitation program, and it is in your child’s best interest to be reunited with you again. You can show that you have a good relationship with your child, still communicate with him and that he has not been adopted. You want to show that you can offer your child the permanency that he needs and is not getting right now under DCPP’s custody.
The process for filing a motion is available online, or you can reach out to the family intake person at the court house. Make sure that you have all of your previous paperwork on hand. See How to Ask the Court to Change or Enforce an Order in Your Case (from New Jersey Courts) to print a copy of all the required forms as well as instructions. These are the steps:
It is not enough that I have improved my own situation?
Unfortunately, the answer is no. Although you would have to show that your circumstances have changed for the better, the main focus is on the child and what effect reinstating your rights will have on the child. Your child may have been placed with a foster family or been adopted. (This depends on how long it has been since your termination.) The court is very hesitant to remove a child from a foster family if the child is thriving.
As an example, in a case named In Re J.N.H., the court specifically noted that despite the mother’s change in circumstances—getting a job, refraining from the use of drug and alcohol, and completing counseling—the court would not have considered her motion had it not been for the child doing poorly in his placement home. The court kept repeating that the primary issue was what effect the grant of the motion would have on the child. In that case, the child was “emotionally rigid and needy” and was having problems in school. Also, the adoption by his placement home was conditioned upon him having no contact with his mother or brothers. This is a possible, but difficult, argument to make. The judge in your case will weigh what’s going on in your child’s life now and what impact it would have to reintroduce you into his or her life.
What type of documents should I attach?
While every case is different and very fact specific, there are certain pieces of evidence that you should consider bringing with you to court. One piece would be any proof you have that you have changed your own situation for the better. If you previously had problems with addiction, bring any documentation that shows that you have completed a rehabilitation program or attended a substance abuse treatment program. If you previously had problems with housing and were homeless, bring proof (pictures of your new housing or a lease agreement) that you now have a place to live.
No matter what your previous situation was that caused your rights to be terminated, it is important to have proof that you were an active and supportive parent although you may have struggled with addiction or another issue. This could include anything from your child’s old school reports to pictures of your family together.
What happens after I file?
After you file for reinstatement of your parental rights, the Division of Child Protection and Permanency will respond to your motion and be involved in your case again. Your child’s law guardian will also be notified. As was mentioned in the Procedure for Filing a Motion section, these parties will get a copy of your Notice of Motion and will have a chance to respond. Your Motion will be scheduled for a hearing date. The judge will hear your application and the responses from the deputy attorney general and law guardian as to whether they support or oppose your application. In some cases, you may want to ask for a hearing evaluation and visitation to assist you in your request. The judge will then issue a decision. If you are not satisfied with the decision, you may want to appeal. Remember that an appeal has to be made within 45 days of the entry of the order or judgment.
If you have any questions about your investigation, findings, and your right to appeal, please feel free to contact Legal Services of New Jersey’s Family Representation Project by calling LSNJLAWSM, LSNJ’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529). You may also apply for help from the hotline online.
This information last reviewed: Jan 12, 2017