DYFS Idiosyncracies: Termination of Parental Rights Tidbits

In a recent unpublished decision, DYFS v. J.C.G., the Appellate Division reversed the termination of parental rights, highlighting several key principles that govern this area of law:

1. DYFS cannot deny a parent all access to child over years of litigation, then rely upon the absence of a parent-child bond to terminate parental rights (TPR).

2. DYFS has a huge advantage in TPR cases, because the agency has control of the child.  Parents are at a distinct disadvantage when defending in these actions.

3. Bare conclusory claims that a child may suffer harm from a bonding evaluation does not justify quashing a parent’s constitutional right to present evidence and conduct their own independent evaluation.

4. Law guardians are REQUIRED to advocate a safe means of accomplishing the child’s wishes in DYFS cases.  The Law Guardian cannot supplant what she feels is best for what the child truly desires.

In this case, the Appellate Division also made a point to include reference to the parent’s repeated requests for visitation, which requests were not ruled upon.  The trial record clearly reflects a manifest injustice toward the mother – particularly given that DYFS filed its first TPR Complaint a mere ONE YEAR after the litigation began. 

The JCG decision serves as an eloquent explication of the state’s duty to seek justice for children – starting with the reunification of families and, thereafter, establishing permanent arrangements for children with foster families only when absolutely necessary to achieve child safety.

DYFS Abuse Findings Must Be Based on Specific Harm or Substantial Risk of Harm

In a recent unpublished decision, DYFS v. S.S. the Appellate Division reversed a finding of abuse and neglect when the proofs showed that the mother separated from an abusive partner who may have been involved in illegal drug activity when DYFS became involved.  In this case, the police raided a house, performed a search pursuant to a warrant and discovered a home replete with illegal drugs.  However, the mother and month-old baby were found in the home, free of the smell of drugs, and the baby was unharmed.

The Court reiterated the principle that the purpose of DYFS substantiations is “to determine whether the child has been actually injured or placed emotionally or physically at risk in some significant way”.  That must be the focus when defending DYFS cases – the actual harm or SUBSTANTIAL risk of harm.

The S.S. Court further noted that mom voluntarily complied with DYFS services and had regained custody at the time the fact finding hearing commenced.  Thus, the sole reason for the Fact Finding hearing was so that DYFS could maintained the mother’s name on the Child Abuse Central Registry.  That purpose was criticized by the Appellate Division, inasmuch as mom had significantly alleviated the conditions leading to DYFS involvement by the time the Fact Finding hearing commenced.

So, again, defense counsel is left with this conundrum.  Do you advise the parent to cooperate with DYFS to expedite reunification and hope the agency capitulates?  Or, do you advise the parent to defend from the outset and prevent DYFS from gathering additional information vis-a-vis the services offered?  There is no simple answer.  One option is to have the parent submit to services, with an agreement that they will not used against the parent in the Fact Finding hearing.  But, some judges will not enforce this agreement, if DYFS learns information to support its finding at trial.

In cases where the parent is clearly being brought along for the ride with a problematic partner, cooperation with DYFS may yield expedited reunification and offer a greater defense at trial.  This S.S. decision certainly gives defense counsel strong incentive to recommend cooperation with DYFS in these limited circumstances.

DYFS v. K.T. – Excessive corporal punishment revisited?

In DYFS v. K.T., the Appellate Division reversed a trial Court‘s finding of no abuse or neglect in a case of alleged excessive corporal punishment. In K.T., a mother spanked her 7 year old daughter for kissing a boy and sitting on his lap at school. The spanking left bruises and cuts on the child’s arms, legs and buttocks a full seven days after the event. The trial Court did not condone the parent’s actions, but noted that (1) she was concerned regarding sexual conduct of her young child; and (2) the child was not hit in a vulnerable area (presumably this fact goes to the “recklessness” standard).

The trial Court further noted that the child did not appear upset when interviewed about the incident, and she did not require medical care. The trial Court was also concerned with labeling K.T. as an abuser for parenting behavior that did not harm the child.

The Appellate Division reversed, concluding that this was “hardly a ‘customary’ spanking”. However, in so holding, the Appellate Division appears to have sidestepped the published decision in DYFS v. K.A., in which the Court held corporal punishment is not excessive if the “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.”

So, the question remains – is there really a standard defining excessive corporal punishment? Or, are we left with the porn analysis – we know it when we see it?

It did not help in this case that, when asked if she knew what she did was wrong, K.T. said, “No, because that’s pretty much how I was raised.” Note, the same result was reached in DYFS v. C.H., where the Appellate Division rejected a parent’s urban cultural view that routine corporal punishment is the way to “keep [a child] out of the streets”. Yet, in K.A., a white suburban homemaker’s repeated punches to a special needs child was labeled an “ill-advised impulse”.

What motivates the Court to determine “excessiveness” will vary from case to case. But, for certain the discipline must be “reasonable in light of the circumstances” – and what is “reasonable” will always be fact-sensitive and subject to debate, causing a lack of uniformity.

Perhaps, that is they way it should be. Perhaps not. That, too, will always be subject to debate.

DYFS v. M.P.: Imperfect Parenting as Child Abuse or Neglect?

In the recent unpublished decision of DYFS v. M.P. & D.C., the Appellate Division reversed a trial Court’s finding of abuse and neglect against a mother, determining the ruling was insufficient as a matter of law. Albeit in relatively innocuous prose, the Appellate panel appeared cognizant of the inclination of some lower Courts to adjudicate imperfect parenting as abuse and neglect. For instance, in this case, the mother and 2 kids were staying in a trailer/camper while visiting relatives in New Jersey. The trial Court found the camper “inadequate” – “a fact that would support the unlikely conclusion that every child on a camping trip with a parent or guardian is abused or neglected”.

This powerful dicta raises an important issue for consideration. How many times are parents found to have abused or neglected a child, when all the parent really did was live a less-than-perfect existence? How often do Courts truly require “willful and wanton misconduct” by a parent, with an attendant negative consequence for a child – either harm or substantial risk of harm – before the parent is branded with the lifetime label of abuser? Defense counsel must be mindful to reiterate these standards in EVERY case to ensure that “imperfection of parenting” does not transmute into the “imperviousness of labeling” parents.

Shaken Baby Syndrome Evidence Questioned

Below is the link to an interesting article on “abusive head trauma”, formerly known as “Shaken Baby Syndrome”.

Has medicine finally discovered the err of its ways? And, if so, what then will become of the countless lives ruined by the misinformation, the countless children adopted out from underneath the accused parents, the parents jailed or worse due to the misinformation? Can child abuse zealots ever concede this point without calling into question the rationality of their procedures and convictions?

Read this article as poignant food for thought…


Evidence for Family Lawyers CLE

On August 13, 2012, Allison C. Williams will be presenting with a panel of experienced Family Law judges and attorneys on Evidence Issues in the Family Part at CLEfest.  Allison will focus her presentation on Evidence Issues in DYFS proceedings. Topics will include corroboration of abuse allegations, admissibility of business records, internal hearsay within hearsay reports, opinions of experts and more…

To register for the program, please visit: http://www.njicle.com/c-2106-p0-Family-Law.aspx.

DYFS Substantiations of Child Abuse – The Role of Corroboration

In DYFS v. T.L. A-0506-11T2, the Appellate Division entered several rulings about corroboration of children’s statements of prior abuse. The Court noted that N.J.S.A. 9:6-8.46(a)(4) exists to alleviate the necessity of having children unnecessarily relive unpleasant experiences by being required to testify when other reliable evidence will suffice to prove the truth of the matter.  One such piece of “reliable evidence” is the Admission of the parent. 

But interestingly, the Court also held that prior statements of “the child” need not be limited to “the child” at issue in the litigation.  Prior statements of non-subject children can also be admitted.  This ruling seems at variance with the plain language of the statute, which references “the” child – not “a” child.  However, the statute is designed to prevent abuse victims from testifying.  In this case, all children at issue – even those who were not subject to the action – were victimized by the conduct about which statements were given.  Hence, the result achieved by the ruling is consonant with the purpose of the statute.

But what if the non-subject children could only speak to the alleged victimization of “the child” at issue in the case?  In this scenario, I am not so sure that the Court’s ruling in T.L. would stand.  Future published appellate cases may give some guidance on this issue, as there is none at present.

DYFS Request for Services: Treatment or Entrapment

At the inception of every DYFS case, the agency will tell the parent to engage in “services” designed to remediate the condition that led to DYFS involvement. Services cannot be ordered until a court, by way of Stipulation or Fact Finding trial, makes a finding against the parent. However, parents are often urged by the Court and by defense counsel, to submit to services immediately so that, if the parent loses at trial, they will have already completed the services necessary to be reunited with their child.

My advice as to services: “Do not go gently into that good night!” As soon as the parents put themselves into the Division’s service provider’s hands, anything they say can and will be used against them. Normal mental health conditions such as depression and anxiety often are bootstrapped to whatever the initial complaint allegation was, inexorably enlarging the allegations to be countered.

Voluntary submission to services pre-fact finding should be the exception and not the rule.

DYFS Cases Cannot Continue when the Court finds No Abuse or Neglect, Absent Parental Unfitness

The Appellate Division has now disapproved of the common practice of trial Courts keeping DYFS cases open for “monitoring”, when the Court finds that DYFS did NOT prove abuse or neglect.  In DYFS v. T.S, the Court held that trial Courts cannot simply infer from testimony at the Fact Finding hearing that there is a need for DYFS “to provide services to the family or the children”.  If DYFS cannot prove abuse or neglect, DYFS must apply for a Order under Title 30 and prove parental unfitness, endangerment, etc.

Importantly, the Decision rebukes the routine of “unnecessarily obligating parents to participate in programs and undergo testing because they are routinely ordered”, noting that such cookbook services “may unnecessarily limit a parent’s ability to focus on meeting the child’s needs.”

Defense attorneys can now be armed with strong language in a published decision, stressing the need for tailoring Court Orders to the problems facing families.