When children can no longer safely reside with their birth parents, the New Jersey Division of Child Protection and Permanency (DCP&P) first look for relatives and family friends to provide care. The law recognizes that having children cared for by relatives and family friends who are familiar with them can help ease the trauma of being separated from a birth parent. However, these caregivers may not want or be able to adopt the children. The Kinship Legal Guardianship (KLG) Act, N.J.S.A. 3B:12A-1 to -7, provides an alternative permanent placement option for children when adoption is not feasible or likely. Once a caregiver becomes a kinship legal guardian, the caregiver is entitled to make all decisions relating to the care and well-being of the child and receive financial support from the birth parents, but parental rights are not terminated. As discussed in a recent New Jersey court case, the availability of the KLG option can effectively reduce the risk that parents will lose their parental rights entirely.

New Jersey Div. of Child Prot. & Permanency v. M.M., involved an appeal of the involuntary termination of the defendants’ parental rights with respect to their six children based on allegations of abuse or neglect. Three of the children were placed with their maternal grandmother while the other three were placed with a maternal great aunt. The trial court terminated the parents’ rights and approved the children’s placement with their grandmother and great aunt and their adoption of the children. In deciding whether severing parental rights was proper, the appellate court looked at the whether the 4-part test for terminating parental rights was met. The appellate court found that the first 2 prongs were met: namely, that the children’s health, safety, and development were endangered by defendants; and that defendants were unwilling or unable to eliminate the harms facing their children. However, the next 2 prongs required more evidence than in the record. These factors require that the court consider alternatives to the termination of parental rights and whether termination of parental rights will do more harm than good.

Essentially the key issue in the case revolved around whether the grandmother and great aunt were informed of the option of kinship legal guardianship and nonetheless unequivocally wanted to adopt the children. There was insufficient and conflicting evidence about whether they understood the difference between KLG and adoption and were affirmatively requesting adoption. The appellate court held that the trial court should have made a more specific determination about the availability of KLG as an alternative that would provide the children with stability without resorting to the termination of parental rights.

This decision demonstrates the reluctance of courts to terminate parental rights. As noted by the appellate court, the required standard of proof is clear and convincing evidence, which did not exist in this case.

If you are caring for minor children and would like more information about kinship legal guardianship, contact us for a consultation.


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