Unless your case is settled before trial, your trial is the most important event in your termination of parental rights case. It will probably last a number of days, which may not be one right after the other. You need to be present in court every day of your trial. You should dress neatly to make a good impression on the judge. You should wear the same kind of dressy clothes you would wear to an important occasion, such as a wedding or funeral.
A trial in a termination of parental rights case usually begins with opening statements by the lawyer for DYFS, the law guardian, and the lawyers for the parents. Opening statements introduce the facts the lawyers will try to prove and explain how those facts are related to the laws that control termination of parental rights.
After the opening statements, the DYFS lawyer will call witnesses to testify against you. The DYFS witnesses probably will be your caseworkers and the experts DYFS hired to evaluate you. Other witnesses against you may be visiting nurses, home health aides, substance abuse rehabilitation counselors, neighbors, or relatives who have negative things to say about you. Even though you may be angry at some things these witnesses say, you must remain quiet and calm. However, if something a witness says is wrong, inconsistent, or reminds you of something important, you may silently write a note to your lawyer.
After the DYFS lawyer questions each of his or her witnesses (this is called direct examination), your lawyer will have a chance to ask the witnesses questions that bring out your side of the story (cross-examination). Your child’s law guardian will also get to cross-examine the DYFS witnesses.
When the direct examination and cross-examination of DYFS witnesses have been completed, your lawyer will call witnesses to testify for you. Long before your trial, you should discuss with your lawyer your ideas about who might testify on your behalf. When your lawyer presents your case, he or she may call experts, therapists and counselors, neighbors, friends, members of the clergy, and family members who can say positive things about you and your ability to care for your child. The lawyer for DYFS and the law guardian will have an opportunity to cross-examine the witnesses called by your lawyer.
If you believe that your child is old enough to talk to the judge and that the child does not want his or her relationship with you ended, you should discuss with your lawyer the possibility of having the judge interview the child. Children rarely testify in court in termination of parental rights cases. Instead, the judge can interview the child in his or her office, which is called the judge’s chambers. In most cases, all of the lawyers are allowed to submit questions for the judge to ask the child. Sometimes the judge allows the law guardian to be present during the interview. Generally, the lawyers are allowed to hear a tape or read a transcript of the interview later. In some instances, they may be able to listen to the interview from the courtroom.
It is important for you and your lawyer to decide if you will testify at the trial. Usually, a parent fighting against termination of parental rights will want to testify. If you do not testify, the judge may think that you have something to hide or that you have no defense to the evidence against you. However, in making your decision about testifying, you must remember that you will be cross-examined by the lawyers for DYFS and your child. They are likely to try to get you to say things that will hurt your chances of keeping your parental rights.
Preparing your testimony is very important. You should spend as much time as possible with your lawyer in order to get ready to answer the questions your lawyer will ask you on direct examination and the questions he or she thinks you will be asked on cross-examination.
Your child’s law guardian also has the right to call witnesses to testify at the trial. Again, your lawyer will have the chance to ask those witnesses questions on cross-examination.
After all of the witnesses have testified and been cross-examined, the lawyers will make closing arguments to the judge, either orally or in writing. Your lawyer will argue that DYFS has not proven clearly and convincingly the specific things required under New Jersey law to terminate parental rights. DYFS will argue that it has proven its case by clear and convincing evidence. Clear and convincing evidence is proof that is very strong. The law guardian will also be allowed to make closing arguments.
The judge’s decision
The judge must decide, based on the evidence presented at your trial and the law, whether or not to terminate your parental rights. The judge may announce the decision right after your trial ends or may take some additional time before making the decision. If the judge decides in your favor and orders your child returned to you, you and your child probably will be reunified gradually, after daylong and then overnight visits. Other possibilities are that the judge may not terminate your parental rights, but may decide that your child should be placed in the custody of a relative or family friend. It is also possible that the judge will decide that the case should become a kinship legal guardianship case.
If you disagree with the judge’s decision at the end of your trial, you have a right to appeal it. Appeals that challenge what the judge determined were the facts in a case are rarely successful. Most appeals challenge whether the trial judge applied the law correctly. DYFS and the law guardian also have a right to appeal if they disagree with the decision. Your lawyer should let the judge know if you wish to appeal and should start the appeal process for you. The time limit for filing an appeal is 45 days from the date the judge signs the order. It may take many months for your appeal to be decided. If you appeal, your lawyer may request that visits with your child continue while the appeal is pending.
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Copyright © 2011 Legal Services of New Jersey
This information last reviewed 10/28/11