The Effect of an Amendment to Prong Two of the “Best Interests of the Child” Test in Termination of Parental Rights Proceedings

New Jersey Division of Child Protection & Permanency v. D.C.A., 474 N.J. Super. 11 (App. Div. 2022). This opinion today by Judge Whipple affirmed the decision of a Family Part judge to terminate the parental rights of D.C.A. as to four of her children. As always in these cases, the facts were very sad, and Judge Whipple described them at length.

The standard of review of a decision terminating parental rights, Judge Whipple said, is “whether the decision . . . is supported by substantial and credible evidence on the record.” Family Part fact findings receive deference “due to that court’s special expertise in family matters, and the inadequacies of a cold record.”

Here, apart from some evidentiary challenges that the panel quickly rebuffed, D.C.A.’s argument for reversal was based on an argument that the four-pronged statutory “best interests of the child” standard applicable to termination of parental rights, codified in N.J.S.A. 30:4C-15.1(a), had been amended so as to preclude termination in this case. Judge Whipple observed that such an issue of statutory interpretation invokes de novo review. And the Division of Child Protection & Permanency must establish the elements of the “best interests” test by clear and convincing evidence.

The legal argument involved the second prong of the four-part test. The statute as currently written describes that prong this way: “[Whether t]he parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm.” A 2021 amendment to that second prong removed the following language from that prong: “Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child.”

Appellant contended that the deletion of this language meant that “all evidence concerning a child’s relationship with resource caregivers is barred, even in the context of other prongs of the best-interest standard.” She complained that the Family Part had considered evidence of the children’s relationship with their foster parents, which she claimed violated prong two.

Judge Whipple did not agree. Relying on legislative history and the plain language of prong four (“[whether t]ermination of parental rights will not do more harm than good”), she concluded that the amendment to prong two did not mean that the relationship with foster parents could not be considered as part of “the totality of the circumstances” relating to prong four. “The amended statute, in our view, requires a court to make a finding under prong two that does not include considerations of caregiver bonding, and then weigh that finding against all the evidence that may be considered under prong four—including the harm that would result from disrupting whatever bonds the child has formed.” Accordingly, the Family Part did not err, and the termination of appellant’s parental rights was affirmed.