NewJerseyDYFSDefense

In a recent unpublished decision, New Jersey Div. of Youth and Fam. Svcs. v. L.C., DYFS conceded that where the agency seeks to impose restraints upon parental access, parents are entitled to be represented by counsel.  Further, DYFS acknowledged that it cannot secure an “Order to Investigate” with restraints – i.e., supervised parenting time, psychological evaluations, therapy, and the like.  Because of DYFS’s concessions, the Appellate Division refused to reach the merits of the appeal, finding that “the Division conceded error and assured us at oral argument that this was an anomalous situation unlikely to recur”.  At oral argument, L.C.’s counsel argued that DYFS “regularly files orders to investigate containing ‘restraints’ “.  That has been my experience, as well.  However, the L.C. case eliminates DYFS’s ability to over-reach in this manner in the future.

On May 10, 2011, in New Jersey Div. of Youth and Family Servs v. A.R., the Appellate Division reversed a trial Court’s finding that the act of leaving a 10 month old child on a rail-less bed with a sleeping 10 year old child, near a hot radiator, constitutes mere simple negligence. The Appellate Division reaffirmed the neglect standard in the seminal case of G.S. – i.e., that the acts must be more than simple negligence, but less than intentional, and that “willful and wanton” disregard of known risks is required to violate Title 9. In this case, the parent placed towels around the child – a clear sign he knew of the risk of a 10-month old being in a rail-less bed. The parent also failed to tell the 10 year old that the 10-month old was being put in the bed, thereby increasing the likelihood that the 10 year old would kick in her sleep and inadvertently move the baby out of the bed.

This case presents a difficult scenario for most parents. The child was placed in a bed near a radiator. Perhaps the parent figured the child would be safe if buffered by the towels. Would the average parent think their 10 month old would roll out of bed onto the radiator? Probably not. And the trial judge saw this as a case of mere negligence – not willful and wanton misconduct. That just goes to show that oftentimes, the outcome of these cases turns on the personal views of those deciding the case.

On June 2, 2010, the Appellate Division issued its first published decision on the issue of what constitutes “excessive” corporal punishment.  In DYFS v. K.A., the Court noted the “general proposition that a parent may inflict moderate correction such as is reasonable under the circumstances”.   In determining what is reasonable, the Appellate Division cited to the definitions of what constitutes abuse in the Administrative Code, specifically N.J.A.C. 10:129-2.2. That list includes death, head injuries, burns, wounds, and other serious physical injuries.

The focus is on the harm to the child, not the mental state of the parent.  The Court acknowledges that “a situation where the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves necessary, may be sufficient to sustain a finding of excessive corporal punishment.”   Thus, even where medical attention is necessary, we do not have per se excessive corporal punishment “provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted.”

In K.A., the Court noted that the only visible injury to the child was a bruise, which “never exposed [the child] to any further harm if left untreated”.  Thus, the Court held, that in the absence of per se excessive corporal punishment, the Court must examine the circumstances facing the parent.

The parent in K.A. notably acted out of frustration – an “ill-advised impulse”.  However, in viewing the totality of the circumstances, the Court noted that “[t]hese blows, though undoubtedly painful, did not cause the child any permanent harm, did not require medical intervention of any kind, and were not a part of a pattern of abuse.”

Defense counsel is now armed with well-reasoned, binding authority which clearly demonstrates that an isolated incident of bruising a child does not a child abuser make.  Common sense codified in case law.

On April 14, 2010, the Appellate Division rendered a decision in DYFS v. N.S., 412 N.J.Super. 593 (App.Div.2010), which reconciled the conflicting authority on the issue of representation of an accused parent in both a criminal matter and a DYFS matter.  The Division routinely objects to counsel representing the accused parent in both matters, premised upon the confidentiality provisions of N.J.S.A. 9:6-8.10a, which limits access to DYFS records to a limited number of individuals, not including criminal defense counsel.

Two published, conflcting trial court decisions had addressed the issue of representation in criminal and DYFS matters by the same attorney.  One trial court permitted the representation in parallel proceedings; one created an asbolute bar to such representation.

The N.S. Court finally resolved the issue by creating a case-by-case analytical framework, whereby a motion should be filed by the attorney seeking to serve in both roles, on notice to the Division, so that any confidentiality concerns can be addressed.  The Court noted that any concerns may be militated by use of a protective order barring release of certain records.

Of particular note is the Court’s suggestion on preserving confidentiality, while allowing the parent counsel of her own choosing: “a prohibition on providing photocopies of various records to parent-defendants could be effectuated”.  Of course, this necessarily implies that no such prohibition presently exists.  Thus, defense counsel should be mindful of this language when denying parents copies of DYFS records that will be used in their case.

On March 31, 2010, the New Jersey Supreme Court issued its ruling in Division v. M.C. III., reversing the Appellate Division’s pro-defense ruling in October 2008 that certain hearsay documents are not permissible to be entered into evidence in DYFS matters.

The high Court noted that they cannot tell from the trial record whether or not the Screening Summary or the medical record completed by the treating physician should have been admissible in evidence — the fact that the defendant’s attorney did not object barred the defendant from objecting on appeal.  Nothing particularly shocking there.

However, the Court went on to provide guidance in future proceedings.  As to the Division’s Screening Summary, the Court said DYFS can satisfy the burden of admitting this evidence by taking testimony that the Screening Summary is kept in the ordinary course of business.   Justice Wallace also alludes to this notion that had defense counsel objected, DYFS could “shore up” its record by producing a witness to testify.  Of course, oftentimes objections to DYFS evidence are not made until after the Division has rested its case, causing one to query whether the Court is suggesting that the Division be granted unfettered authority to call witnesses – even after resting its case – to correct trial deficiencies warranting the exclusion of evidence.

As to the medical form prepared by the treating physician, the Court writes, “The Division’s use of a disinterested treating physician is not inconsistent with the purpose of the Rule” (referencing R. 5:12-4(d), which allows admission of forms from medical consultants of the Division).  This broad language appears to open the door for the Division to offer any hearsay notation by any medical provider, instead of its paid consultants, as has typically been required.

Defense counsel must always be mindful of the cautionary language in the seminal case of In re Cope – “evidence upon which judgment is based [must] be as reliable as the circumstances permit and the answering parent [must] be given the fullest possible opportunity to test the reliability of the [State’s] essential evidence by cross-examination”.  This proviso is the cornerstone of a fair judicial proceeding and can never be forgotten.

“The war against child abuse has become a war against children,” charges Wexler, a reporter for the Albany, N.Y., Times Union , in a well-argued, in-depth study of the “child protection system” in the U.S. and the politics that enmesh it. He maintains that even more alarming than the alleged abuses suffered by children at the hands of their parents are the disruption of home life and the long-lasting trauma of minors assigned to institutions and foster homes that are either as bad as or worse than their own families. He asserts also that “witch-hunts” of foster parents suspected of improper conduct and harried supporting care system administrators, at times involving false accusations of sexual abuse, are all too common. While crediting competent, dedicated caseworkers who struggle in an overloaded welfare system, Wexler deplores what he considers misleading statistics and the presumption of parental guilt that underlie much child protection work. Preventive programs, legal measures and financial incentives meant to preserve original families figure in his detailed recommendations for reform.”

 - Review by Publishers Weekly

THIS BOOK CHANGED MY LIFE AND MY PRACTICE.  A MUST READ!

In between litigating on behalf of good people, parents wrongfully and aggressively accused by the Division of Youth and Family Services of abuse and/or neglect, I somehow found the time to become Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney.  I am now the youngest attorney in the State, as well as the first African American, to become a Certified Matrimonial Law Attorney.  Of the approximate 85,000 attorneys licensed to practice law in New Jersey, I am one of the approximate 500 who are certified in any specialty.

Allison C. Williams, Esq. will be presenting on DYFS Defense Strategies at the New Jersey State Bar Association Annual Convention on May 20, 2010 at 1:00 p.m.  The presentation will provide tips on how to manage the impact of DYFS investigations on matrimonial and custody matters.

By: Allison C. Williams, Esq.

Unlike the traditional civil trial, DYFS cases are often “streamlined” because of the Division’s ability to enter documents generated by agency personnel into evidence without the formality required by the New Jersey Rules of Evidence.  The authority for this guiding principle can be found in the Rules of Court, specifically R. 5:12-4(d), which provides:

Reports. The Division of Youth and Family Services shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants.  Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.

Historically, reliance has been placed upon R. 5:12-4(d) to authorize the Division to simply provide the Court with a few reams of agency-generated Contact Sheets, reports, evaluations and summaries to be used at trial against a parent accused of abusing and/or neglecting his child.  These Contacts Sheets are typically inundated with multiple layers of hearsay, which would otherwise be inadmissible in any other proceeding.  For instance, the Contact Sheet may contain the substance of a conversation between a police detective and medical personnel, which was relayed to a Division caseworker.  Or perhaps, the Contact Sheet may contain the substance of a child’s allegation of abuse as relayed to a teacher, gleaned from the notations in a school’s file, which was reviewed by a Division investigator.

These hearsay statements are not automatically admissible simply because they are contained in a document prepared by the agency.  The threshold requirement of personal knowledge of the testifying witness, which is the hallmark of our adversarial system, must still be met.  The Appellate Division first analyzed the quality of proofs necessary in DYFS proceedings in 1969 in the seminal case of In re Guardianship of Cope, 106 N.J.Super. 336 (App.Div.1969). In In re Guardianship of Cope, “several of [DYFS]‘s witnesses testified from written reports prepared by other [DYFS] personnel…. The testimony of the witnesses was ‘double’ (sometimes ‘triple’) hearsay, making verification of its accuracy virtually impossible.”  Id. at 344.

The Court acknowledged that where fundamental rights are at stake (i.e., the irrevocable severance of the parent-child relationship), “evidence upon which judgment is based [must] be as reliable as the circumstances permit and the answering parent [must] be given the fullest possible opportunity to test the reliability of the [State’s] essential evidence by cross-examination”.  Id. By contrast, the Court also noted that were all Division employees having contact with a given case required to testify at trial, the workings of the agency would essentially grind to a halt.  Id. To reconcile these two significant interests, the Court established the following criteria as a condition precedent to admissibility of the Division’s hearsay reports in these matters:

1. Reports are prepared by Division employees or affiliated medical/mental health consultants
2. Reports are prepared from first-hand knowledge of the case
3. Reports are prepared at a time reasonably contemporaneous with the facts they relate
4. Reports are prepared in the ordinary course of business of the Division

In establishing these criteria, the Court reasoned that reports prepared by the “qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein”.  Id. Of course, any practitioner who regularly handles DYFS matters certainly will disagree with any suggestion that the Division’s records reliably contain “accurate” facts.  However questionable it may be, this rationale formed the basis of the Cope decision, as well as the many cases addressing the admissibility of hearsay reports by Division caseworkers for years to come.

Then, in 2008, the tide turned.  In a resounding victory for the champions of the Rules of Evidence, the Appellate Division decided the case of Division of Youth and Family Services v. M.C. III, 405 N.J.Super. 24 (App.Div.2008).  The M.C.III decision principally changed the manner in which hearsay is addressed in DYFS proceedings and fine-tuned the holding in Cope to preclude the common practice of Division records coming into evidence without proper testimony.

In M.C.III, the trial Court found two teenagers to be abused children as a result of a physical altercation with their father.  The trial judge placed primary reliance upon the Screening Summary report that was prepared by the Division Special Response Unit (SPRU) worker who investigated the allegation, as well as the DYFS-generated medical forms completed by the physician who examined the children following the incident.  Applying the standards established in Cope, the Appellate Division found the admission into evidence and the trial Court’s reliance upon both sets of documents to be impermissible.

In reversing and remanding, the Court found that the Screening Summary form prepared by the SPRU workers had not been prepared from their “actual knowledge” as required by N.J.R.E. 803(c)(6). Id. at 356.  Instead, the information that formed the basis of the abuse substantiation came from the physician who examined the children at the hospital.  Id. Similarly, the “medical records” upon which the Division relied were not properly admitted into evidence as a business record, as the records were not documents kept in the ordinary course of business of the hospital; rather, they were hearsay documents – forms generated by the Division and given to the doctor to complete.  Id. The Appellate Court reiterated the “high degree of reliability as to accuracy of facts” standard established in the Cope decision:

Where DYFS makes the initial referral to a DYFS-retained professional, resulting in an examination report proffered in evidence at a subsequent abuse or neglect proceeding, that professional is considered an “affiliated … consultant[.]” Thus, such a referral by DYFS may satisfy the concern that there be a “reasonably high degree of reliability as to the facts contained therein.” In re Guardianship of Cope, supra, 106 N.J.Super. at 344, 255 A.2d 798. The reliability of such evidence remains an issue to be assessed on a case by case basis within the trial judge’s discretion. Where, however, DYFS’s initial involvement in a matter arises from a referral by a non-affiliated professional …, the facts and opinions contained in that individual’s statements to a DYFS screening worker or on a DYFS-provided medical examination form do not rise to the “reasonably high degree of reliability[,]” ibid., required of DYFS’s proofs in this type of proceeding.

Id. at 356 (emphasis added).

The Appellate Court, by it decision in M.C.III held the Division to its burden to prove its allegations by use of only competent evidence, as is required by statute.  See, N.J.S.A. 9:6-8.46.  However, while the decision certainly goes a long way to level the playing field for parents accused by the State of abusing and/or neglecting their children, the viability of some of the assumptions underlying the opinion should be subjected to close scrutiny.

For instance, should one accept out of hand the notion that the findings of the Division’s hired gun – i.e., a child abuse “expert” physician paid by the State to investigate and, more often than not, to find child abuse – is more likely to present “highly reliable facts” than is an independent physician, unaffiliated with either the State or the parent who is subsequently accused of child abuse, who examines a child and makes a report of his findings?  Can the “facts” contained within Division Contact Sheets legitimately be considered to have a reasonably high degree of reliability when so many of these “facts”, when subjected to aggressive cross examination, turn out to be inaccurate, incomplete, or simply outright fabricated?  And should the presumption of accuracy inure to the benefit of the most powerful player in this adversarial proceeding when the goal of the fact-finding hearing is not truly to protect children (protection of the children occurs in other stages of the litigation –during the removal process and during other hearings, which do not require competency of evidence)– but solely to obtain a finding of abuse or neglect against the parent, so they can be branded a child abuser on the State’s Central Registry?

These questions cannot be answered at this time.  But, undoubtedly, published decisions containing the principles established in the M.C.III decision move us that much closer to a fair system to adjudicate these sensitive matters.