On May 5, 2014, the New Jersey Appellate Division entered a critical ruling in the case of DCPP v. M.C., Docket No. A2398-12T.  The M.C. case draws from several recent published decisions to conclude that child abuse and neglect findings must be based upon proof of (a) actual impairment; or (b) substantial risk of impairment.  Where the basis of the finding of “substantial risk”, the Division must prove an “imminent danger” of impairment based upon present circumstances – i.e., the circumstances at the time of trial, not the circumstances at the time the Complaint was filed.

After performing a meticulous deconstruction of the statutory child abuse/neglect definition in N.J.S.A. 9:6-8.21(c), the Court discusses several cases that lend support to the Court’s interpretation that “imminent danger” of child impairment must exist and continue to exist, despite Division involvement.  The beauty of this finding is that it truly balances the equities between prevention and redress of child maltreatment, on the one hand, and parental autonomy and constitutional rights, on the other.

Many DCPP cases are approached from an adversarial posture.  Parents fear admitting to human frailties and accepting help from the Division, for fear that those admissions will put the nail in the coffin of the abuse finding by the Court.  Parents who accept help have their intimate thoughts documented in therapy reports.  Parents evaluated for substance or mental health treatment are expected to discuss their mistakes as parents, but those very statements are then used against them at trial.

The M.C. decision upends that sad commentary on social service intervention.  Now, impaired or otherwise imperfect parents can rely upon the Division’s assistance to improve their home lives, with the Court’s focus being on whether their child is in “imminent danger” of impairment.  This topic and more will be covered next week at a CLE taught by Allison C. Williams, Esq., entitled “Nuts and Bolts of Defending DCPP/DYFS Abuse & Neglect Actions”.  The program takes place at Seton Hall Law School on Monday, May 19, 2014, at 9:00 a.m.

If you or someone you know is involved with the child welfare agency, please contact the Williams Law Group, LLC, to schedule a consultation.

Today, I appeared in a matter in which the Court made a finding of excessive corporal punishment against the mother. She is from another country (actually, another continent) and had to learn that her culture’s disciplinary tactics are not acceptable in the U.S. That part was easy.

But, the case now center around an all-too-common circumstance, whereby the Division alleges a risk in reunifying the fmily because the mother does not BELIEVE the Division’s position on the case. How many times does this happen? More frequently than anyone would care to know.

The Division’s position is that the Mother must accept, believe and embrace the notion that spanking is wrong, or else, she presents a risk to re-offend. But is this assumption logical? Plenty of parents believe in spanking, though the Division consider an acceptance of the practice as presenting a risk.

What about when children allege they have been sexually abused? A parent who does not believe a child’s disclosure is often villified as non-supportive. By contrast, a parent who believes the abuse that the Division does not believe may also be villified as emotionally harmful to the child.

In New Jersey Division of Youth and Family Services v. G.L., 191 N.J. 597 (2007), our Supreme Court made cleat that a parent cannot lose parental rights because  she does not believe the child’s other parent committed abuse against the child .  So long as the parent is willing to ensure the child is kept safe (as required by the Court), risk does not exist.   Nevertheless, in case after case, the Division mandates that parents acknowledge what the Division believes happened in the case in order to have children reunified?

As distasteful as this practice may be, parents should know that it exists so they make wise choices in how they interact with the Division.  While attorneys cannot advise parents to lie, the extent to which feelings are acknowledged may delay reunification.  What we always tell parents: You are entitled to believe whatever you want to believe … but you do so at your own risk.

Parent are often induced into “cooperating” with the Division of Youth and Family Services, n/k/a the Division of Child Protection and Permanency, upon threat of the Division going to court.  Many fear that a judge would rule against them if they are seen as being uncooperative.  Others fear the parade of horribles threatened by the Division if they do not comply.  Where child safety is at issue, there are few absolutes.

However, one near-absolute is that “cooperating” with the Division can often make matters worse.  Not because all hell fire and damnation will be brought down upon the family if they do not cooperate.  Not because the parent will more likely face a removal of their child.  But, because when families are not in litigation with the Division, they are no longer a priority.  The agency is busy.  Over-worked caseworkers and under-funded program inundate a practice replete with emergencies.  When a parent agrees to cooperate, the Division runs the show, the parent usually loses any ability to object to proposed evaluations, programs, and services, and most importantly, any supervision or suspension of parenting time can drag on for a minor lifetime, ad the Division no longer feels the pressure to move promptly to reinstate the status quo.

in the past year, we have encountered a dozen families who endure 6 months or more or restrictive, supervised parenting time before the Division will even consider loosening the reigns.  These cases languish in the world of non-emergency, while parental bonds are attenuated, children are distressed in they are of a former non-custodial parent and the parents’ funds are depleted securing their own services.  If a hiccup occurs in the process designed and implemented by the Division, the matter goes to court, at which point the Division often minimizes the progress made before litigation is sought.  A well-intentioned, but sparsely-informed judge goes through the “usual process”, entering orders without due regard for the half-year of services endured to date.  Then, the parent is left starting all over again with new professionals, new evaluations, etc.

Sometimes, this torturous extension of the Division’s involvement is orchestrated, but often times, it is not.  Often, new workers are involved.  Fresh perspective is sought.  Motivation is refreshed.  Unfortunately, this comes at a cost to the family, who is still left with a period of jumping-through-hoops before their family is restored to normalcy.  For that reason, from this professional’s perspective, blind compliance with Division recommendations is usually ill-advised.  Instead, parents should try to obtain definitive time lines for progression of the matter, in writing, before agreeing to comply.  Insist that the Division agree to file litigation if certain benchmarks are not met.  If the Division will not agree, it may be advisable to place in writing a general willingness to cooperate with the agency, but a preference to await a court order up until doing so.

This should increase withe likelihood that whatever course of action is pursued, the parent’s cooperation can be monitored, with scheduled court appearances tracked to events in the case to prevent the parent’s cooperation from transmuting into a death sentence for all reasonable timeliness in the matter.

if you or someone you know is involved with the Division of Youth and Family Services, f/k/a the Division of Child Protection and Permanency, please contact the Williams Law Group, LLC, to schedule a consultation.

Below is link to an article demonstrating what happens when there are no checks and balances on the State’s inordinate power to remove children from their families.

http://www.policestateusa.com/2013/justina-pelletier-custody-battle/” title=”Parents lose custody of teen after seeking 2nd medical opinion

The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 42,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 16 sold-out performances for that many people to see it.

Click here to see the complete report.

Ever notice how psychologists in child welfare cases testify?  Their opinions are usually stated within a reasonable degree of psychological certainty.  But are they?  Do the psychologists’ opinion critically examine alternative theories or hypotheses?  Do they confirm that the diagnoses rendered and their consequential alleged impact upon parenting are generally accepted in the psychological community?  In short, do psychologists’ testimony meet the Frye standard?  See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The Frye case established the standard to be met for a Court to accept and rely upon an expert opinion.  In essence, trial Courts must decide whether scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, and if so, a witness qualified as an expert by knowledge, skill, experience, training or education may give opinion testimony regarding the issues in dispute.  This requirement is now contained within New Jersey Evidence Rule 702. 

The New Jersey Supreme Court established the following guidelines for the trial judge to assess at an evidentiary hearing whether the theory and methodology are reliable and relevant to the issue before the Court:

1) whether the evidence is scientific knowledge;

2) whether the expert’s hypothesis can be tested;

3) whether the methodology is subject to peer review and publication;

4) whether there is a known or potential rate of error for the methodology;

5) whether standards exist and are maintained for controlling the technique’s operation; and

6) whether the methodology has been accepted in the scientific community.

Much psychological opinion testimony in DCPP cases fails to meet this standard.  For instance, how often do psychologists testify as to the potential rate of error for their methodology of assessing bonding between children with their parents on the heels of bonding evaluations with their foster parents?  What, pray tell, is the standard for determining whether a particular child has been harmed by witnesses domestic violence between her parents?  And, have studies conducted ruled out other life stressors in evaluating the susceptibility of a particular child to distress from such experiences?

How “scientific” is the premise that a baby with a subdural hematoma and retinal hemorrhages, with no other medical findings, no external bruising, no fractures, etc., has been shaken aggressively by a parent?  Is that determination based on science?  Or conjecture/folklore/common assumption, etc.?  Assuming that the medical evidence is “scientific”, can we make the same claims of findings about parental capacity resulting from the shaking?  Or do we just accept the psychologist’s assumption that a parent who shakes a child in frustration is currently, will be in the future and forever shall remain incapable of safely parenting that child?

When issues are published in Learned Treatises, do we accept out of hand that the articles relied upon by the expert are pertinent to the issue before the Court?  How analogous must the studies’ findings be in order for the expert to rely upon them to support a finding to a reasonable degree of psychological certainty?  For instance, if one published study concludes that a young child’s disclosure of child sexual abuse are most reliable when made spontaneously, while another published study concludes that a young child is highly suggestible, is a psychologist’s finding that a child has been sexually abused ever anything more than a guess between the findings of these two peer-reviewed, published premises?

These questions, and many more, should be the subject of an evidentiary hearing pursuant to N.J.R.E. 104.  In a “104 hearing”, the Court can test the reliability of the alleged scientific evidence.  The inordinate frequency of psychological testimony in DCPP cases makes it unlikely that a Court will strike a psychologist’s opinion for lack of scientific reliability.  But, that does not mean that attorneys should not requests these hearings. 

Demonstrating the guesswork nature of the psychologist’s opinion may not render that opinion inadmissible, but it may attenuate the opinion’s worth in the eyes of the Court to such an extent that the parent’s defense may prevail.  Conducting 104 hearings ensures that defense counsel takes every opportunity to persuade the trier of fact of the parent’s position.

A child welfare parent defense attorney colleague recently shared with us an article out of Seattle, Washington. The termination of a mother’s parental rights was reversed on appeal. One of many infirmities with the trial Court’s opinion was that the mother was less than pleasant to her agency caseworker. Specifically, the Appellate Court held:

“While [the mother] had a duty to comply with all ordered services, no statute or rule required her do so with a smile on her face.”

A copy of the article is available here: http://mobile.seattletimes.com/story/today/2022084530/track-ip_news_lite-1.2.2-./

What strikes me about this article is not the obviousness of the premise asserted, but the commonality with which parents face the irrevocable loss of their parental rights for such mystifying reasons. We know that the child welfare system is unfair; that all that is required to take a child from a parent is (for the most part) an accusation of “concern”; that parents are often held captive to unrealistic deadlines – they must remedy all that ails them in about 1 year, or else risk permanent loss of child; and that delays in Court availability is held against parents when they exercise the rights granted to them under the applicable statutes to not to engage in “services” until such time as the State proves a violation of such statute. We know these premises to be true and nearly universal.

But, one aspect of child welfare world that is often overlooked, if not undervalued, is the extent to which a 22 year old, new graduate, fresh out of college with a Social Work degree and little to no life experience, can precipitate a termination of parental rights by peppering her paperwork with castigations about the parent’s attitude. How unconscionable a result that a parent could face the ultimate death penalty of parenting because she had the audacity to dislike the often-arrogant, judgmental, degrading instruction provided to her by a childless stranger, half her age.

But even where caseworkers are professional and empathetic, assigned therapists who antagonize and judge the parent are vested with the extraordinary power of ridiculing the attitude of that parent, as a basis for taking their child away forever. Parents are often naïve. Even those who approach the child welfare system with a healthy cynicism and skepticism, never imagine that if they “cure” what ails them, that a bad attitude can be the death-knell of their parental relationship.

Many lawyers find themselves battling this bad-attitude-equals-termination-of-parental-rights mantra. However, it is usually less stark than is presented in this article. More often, caseworkers and service providers are masterful at infusing their otherwise legitimate critiques with attitude assessment. When that happens, the critique is as faulty as the pre-seventies “compliment” to working women: “You’re so smart … for a woman.” Sounds benign enough. Almost complimentary. You hear it enough times, you almost begin to think it a kind remark. But, at the end of the day, it is as much as insult as a parent whose abilities to parents are impugned because she had the nerve to dislike the people who took her child away and are keeping her child away on specious grounds.

Lesson to be learned: Play nicely with your workers. Suck it up. One day, our society will come to loathe this time in history where children could be taken because their parents dislike their captors. But, alas, we are not quite there yet.

When the Division of Child Protection and Permanency (DCPP) removes a child from the custody of a parent, the agency is entrusted with locating an appropriate placement for the child. That placement can be with relatives or non-relative resource caregivers. When concerns of abuse or neglect occur in placement, the allegations are investigated by the Institutional Abuse Investigation Unit (IAIU). The Division also conducts an investigation to determine whether the child has been abused or neglected.

What role does the parent play in these investigations? Are the parents consulted? Pursuant to the administrative code, the parents must be contacted and advised of the investigation, even where the parent does not have custody. But, what happens when the parent is the one who makes the referral alleging abuse or neglect by the caregivers?

The Division and IAIU are required to investigate the referral. But when the agency has failed to choose an appropriate placement in the child in that being abused or neglected in the placement, the agency obviously does not want to highlight its failures to the parent. After all, it was the parents alleged malfeasance that led to the state taking action it deemed superior to that of the parent.

Unfortunately, when a parent is accused of abuse or neglect, his/her concerns for the child often fall on deaf ears. Anecdotal experience supports the notion that trial courts are more inclined to rely upon the division and especially the law guardian than upon the parents. How, then, can the parent convince the court to take their concerns for potential abuse or neglect of your child in foster care seriously?

Here are a few suggestions:

1. Document changes in the child’s physical appearance or emotional state at visitation. If the child comes to visitation with the parent with bruises or marks, that should be noted in writing to the agency and perhaps to the court.

2. Take pictures where appropriate to document injuries to the child.

3. If abuse is suspected, ask the child about suspicious injuries in the presence of a worker who would have a duty to document what the child has said.

4. Inconspicuously suggest to the law guardian that abuse may be at play. The law guardian has significantly more contact/access than the parents and can make surprise visits.

5. We’re serious concerns arise, insist upon a Child interview and pose questions about what is going on in foster care to the judge to be asked of the child.

Unfortunately, parents accused of abuse or neglect are often given short shrift when they raise concerns for the well-being of their child. That does not mean that the parents should give up hope and stop advocating for their child. But it does call into question our system when a parent accused of abusing a child, who may ultimately be exonerated, is ignored when real abuse takes place in foster care.

I recently had the pleasure of speaking to a judge about my most recent publication, “Play by the Rules”, an article which examines the court rules and statutory requirements where abuse or neglect is alleged by a parent or guardian versus the agency. The judge and I got into an intellectual debate about the role of judges in these cases. He suggested to me that judges are well intentioned and always try to “err on the side of caution”. While I agree that most judges are well intentioned, the “error” should be avoided no matter which side it falls.

I often sense that judges consider potential child abuse to be so egregious that almost anything on the other side is a de minimus intrusion that should not be avoided. The problem with this mindset is that it fails to recognize that the agency often overwhelms and antagonizes families, making the situation worse than it actually was. Then, interventions are implemented for the purpose of addressing family distress that was brought about by the agency’s involvement, rather than by the family’s inherent functioning. This is akin to breaking someone’s leg, applying a cast and applauding yourself for having “solved” the problem of the broken leg. But for your breaking the leg, your cast would have been unnecessary.

On the flipside, the agency often does provide necessary intervention and assistance to families. The threat of removal often does force people to make necessary improvements in their family situation that otherwise would not have been undertaken. Parents going to substance-abuse treatment, undertake counseling and commit to diligent thoughtful consumption of prescribed medication to avoid the potential removal of their children. So, in effect, the agency can and does accomplish many worthwhile interventions in many circumstances.

However, where a family resists the division’s intervention, courts tend to hold that against them and work to effectuate the divisions forced involvement, where a judge may otherwise have been able to resolve the issue without such involvement. It is not unheard of, and in fact is rather common, to have a family judge order a parent to have supervised parenting time pending completion of substance-abuse treatment. The agency is not needed in this circumstance.

New Jersey law allows for any person with an interest in a child to file an action relying upon the strictures of title 9. See, N.J.S.A. 9:6-8.34. Get, the judges prefer to have the agency investigate and determine child abuse and neglect, often giving undue weight to the agency’s perspective on an issue. If the agency files a complaint, the parent has a right to a trial and discovery and a probative analysis of the allegations made against him. However, where divorcing spouses make allegations against each other, the court will often direct the agency to investigate and simply rubberstamp whatever outcome they reach, dispensing with the necessary due process of a trial and discovery and the right of the parent to seek vindication in court.

For these reasons, the article, “Play by the Rules”, proposes that there be one set of rules and requirements and due process considerations where child abuse and neglect is alleged – no matter who makes the allegation.

But beyond this proposition, it should never be lost upon our judiciary that the child welfare agency is nothing more than a series of individuals who are making judgments based upon information. Just as information given to the mother in a contested custody case must be vetted before the court says the father should be held accountable for same, so too must the agency’s information and perspective on an issue be tested in court. Failure to do so just serves the families of our state. Giving undue weight to the opinion of the agency, particularly where the court is not aware of what information it relied upon in reaching its conclusion, disserves families.

And lest we forget, erring on the side of caution is still airing. And judicial error should be avoided at all costs.