Monthly Archives: July 2012

What’s In A Name: DYFS becomes DCPP


Never one to be labeled stagnant, our Child Welfare agency in New Jersey, formerly known as the Division of Youth and Family Services (DYFS), will now be known as the Department of Children Protection and Permanency (DCPP).  What does this means for those of us in the trenches?  And most importantly, what does this mean for the families of New Jersey?

A change in an agency name may signify a change in perspective – perhaps, a change in the objectives that will be pursued.  But, this may or may not be a good thing.  The prior name encompassed both Youth and Family.  Youth, i.e., Children, came first, but linked to Youth were their families.  Oftentimes, parents ask why DYFS is only concerned about the “youth” and not the “family”.  One can only imagine how that query will fester now that “Family” is taken out of the name altogether.

Child Welfare Advocates may posit that DYFS was always directed, first and foremost, toward “Child Protection and Permanency”, so codifying those goals in the agency name makes sense.  However, this position overlooks the reality for many families involved with the child welfare agency. 

When the State steps in, accuses parents of wrongdoing, critiques every aspect of their lives and their very being, sometimes removing their children from their care, many times restricting their access to their children, parents’ responses often range from Fight to Flight, long before submission emerges.  At the inception of the case, the child welfare advocate many times engenders a sense of helplessness in the parent that causes the parent to obfuscate issues in defensiveness, to such an extent that feigned concerns by the agency become as real in the eyes of the Court as the legitimate concerns that may, or may not, rise to the level of abuse or neglect of children.  When that occurs, the antagonistic relationship between the parent and the agency becomes yet another obstacle to be overcome by the parent in order to achieve reunification.  Yet, when this process of overcoming takes longer than a year, the State may proceed with an action to terminate parental rights.

Parents, quite justifiably, fear the agency.  Its involvement signifies the beginning of a very short (1 year) journey toward eliminating lifelong problems that took decades to present.  Met with this nearly impossible standard, families can be eviscerated.  Parents realize their ill-fated circumstances through all contacts with the agency – even by seeing its name and all that its name represents.

Do we really want “Permanency” (often equated with anti-reunification) to be the symbol of New Jersey’s Child Welfare agency?  Should “Family” have been removed from the name of the agency charged with “rehabilitating and improving family life N.J.S.A. 9:6-8.50(e)”?

Abuse and Neglect: Do we have the correct “Burden” of Proof?


On July 20, 2012, the Appellate Division affirmed a trial court finding of abuse and neglect in a case where a father handled a three-month-old baby so roughly as to break his collarbone and cause various fractures. (DYFS v. J.F.) At the end of the decision, the court held that the “preponderance” standard is the appropriate standard for a abuse and neglect matters. But is it?

The rationale for using our judicial system’s lowest burden of proof in abuse and neglect matters is to err on the side of caution where protection of children is at issue. Yet, in DYFS v. J.Y., our court recognized the severe impingement upon family life resulting from a finding of abuse and neglect. Where parental rights are at stake, shouldn’t our judicial system require proof of abuse or neglect by a clear and convincing standard?

The J.F. court thought the lowest burden of proof was appropriate because of the subject matter – i.e., protecting children. After all, the preponderance standard, i.e., the “more likely than not”/50.1 % rule, is most likely to result in false positives. But we bear that risk in the name of “protecting children”. The court found it more protective of children to have Child abuse over-diagnosed then under-diagnosed. Yet, by the time the court system gets to a fact-finding hearing where the ultimate issue of abuse or neglect is determined, the children have already been “protected” by DYFS intrusion for the better part of a year! In fact, in J.F., by the time the case involving sophisticated medical science (rib fractures) was presented at trial, the parents had already completed all services DYFS requested and were immediately reunified with the children, even after the court found the children “abused” at trial.

In this circumstance, can one really suggest that the banging of the gavel and declaration of the children as being “abused” truly offered protection? Or, was the true “protection” in the court’s initial assumption that DYFS was correct, as is done at the initial filing, whether DYFS ultimately proves its case or not?

The J.F. case evidences the fallacy of our child welfare system – i.e., that branding parents as having committed an act of abuse or neglect and sticking the parent’s name on the DCF registry somehow “protects” children.

Yet, at the end of day, it is still the division’s imperative to assign parents the label of child abusers and stick their name on this registry, file litigation immediately severing or severely restricting parental access, for months on end, leaving parents to eventually fight the good fight all in the name of “child protection”. But does giving the parents that label do anything other then demonize often accidental behavior, under the guise of “child protection”? This fallacy undergirds many Appellate Division decisions reversing findings of abuse or neglect where the sole “benefit” of having the finding is “protecting” children who were long-ago return to their parents before a trial ever occurs.

Is this fallacy of child protection really how we want our child welfare system to operate?

Psychologist Loses License for Fabricating Sex Abuse Allegations


Psychologist Marsha Kleinman has been found guilty of misconduct and malpractice for falsely implanting in young children memories of sexual abuse, which she fabricated. Over the years, this psychologist effectively limited and/or terminated contact between parents and children, premised upon her claims of sexual abuse, which did not occur. A particularly damning piece of evidence was the therapist’s recording of her session with a young child who she coached.

Unfortunately, it is rare for mental health professionals to record their sessions with patients. This, of course, begs the question: what about all of the children who may have been coached by psychologists, but those sessions have not been recorded? What, then, can be done for all of the broken families, fatherless children, who have been manipulated, irreversibly damaged, by such tactics as this psychologist employed? What is their remedy?

This case provides ample evidence of what mental health professionals should NOT do to evaluate and/or treat child sexual abuse. Hopefully, when future allegations of coaching are made against a psychologist, Courts will be less inclined to see the Kleinman case as aberrational and more inclined to take a hard look at the methodology and motivations employed by the professional involved.

How much “caution” is Enough for DYFS?


“Every failure to perform a cautionary act is not abuse or neglect. When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute.” This principle, first established in DYFS v. T.B., recently formed the basis of a reversal of a neglect finding by DYFS in DYFS v. M.D.

In M.D., a 4 year old reported to her mom that her 12 year old brother touched her and their 7 year old brother in a sexual manner. Mom immediately contacted a child psychologist, involved DYFS and, at the behest of DYFS, notified the Prosecutor’s Office. In response, DYFS and mom entered into a Safety Plan whereby the 12 year old would not be unsupervised with his siblings. The 12 year old began therapy.

After months of therapy, the therapist suggested that the 12 year old be granted gradual increases in unsupervised time, conditioned upon his adherence to rules governing his conduct. On one such occasion, mom found the 12 year old in a state of undress with his siblings. Mom notified DYFS. To thank her for her candor, DYFS substantiated child neglect. After a trial, an Administrative Law Judge agreed with DYFS that mom’s conduct constituted neglect. The Appellate Division, correctly, reversed, citing the “cautionary act” language of T.B.

Change the facts of this scenario somewhat: What if mom had refused to “turn in” her 12 year old to be criminally prosecuted? In all likelihood, DYFS would have substantiated Mom for neglect at that point. Would that substantiation have been upheld? What if mom had placed the 12 year old in therapy, despite not handing him over to be prosecuted? Would that “cautionary act” have sufficed to negate a substantiated finding?

In M.D., mom followed DYFS’s rules – i.e., turning in her 12 year old to be prosecuted and not allowing him to be unsupervised with his siblings – to the tee. No matter how arduous this requirement – to make a parent offer up her preteen to the criminal justice system – mom complied. Yet, once mom followed the instruction of a mental health professional to loosen the reigns on her 12 year old … and told DYFS about it, she was penalized.

How absurd a result! But, it does make one wonder: How many parents are substantiated for nothing more than failure to follow DYFS’s orders? Who trumps – the bureaucrats running DYFS or the treating professionals working with the family? At least in this case, the Appellate Division chose the latter.

Divided Loyalties NOT Allowed by DYFS


In DYFS v. E.R., the Appellate Division upheld a finding of neglect against a parent who violated a DYFS case plan by repeatedly exposing her daughter to the mother’s boyfriend’s unwanted sexual advances. In so holding, the Court held:

Defendant’s misconduct lies in her steadfast loyalty to her paramour while ignoring her legal responsibility to protect her daughter from his unwelcome and inappropriate sexual advances.

In essence, the mother was found culpable for NOT believing her child’s allegations. But, would the result have been the same if the mother had failed to believe her daughter’s allegations against her husband, rather than her boyfriend? And what if the daughter had been prone to acting out whenever mom commenced a new relationship? Is this a case of DYFS imputing to the parent the knowledge of when abuse claims are substantiated and should be believed? And what of those cases where DYFS substantiates abuse, then later changes the finding? If DYFS can change its mind, why cannot the parent?

The answer lies in the intricacies of each case. By and large, DYFS and the Superior Court have little to no tolerance for parents who place their individual need for a partner above their child’s need to live in an environment free from physical and emotional harm. Parents, disbelieve at your own peril…

Corroboration: When Should A Child’s Hearsay Statement be Allowed in a DYFS Case?


In a recent unpublished decision, DYFS v. J.B. & N.D., the Appellate Division reversed a finding of neglect against parents, citing insufficient factual support for the trial Court’s conclusion.  What I find interesting about this case is not the ultimate conclusion, but the Court’s analysis of the admissibility of the children’s statements to DYFS.

In this case, a little girl told DYFS that her brothers bagged marijuana in the home where she lived.  The Appellate Division deemed these statements admissible pursuant o N.J.S.A. 9:6-8.46(a)(3), which provides that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect”.  The issue is not whether or not there was corroboration; rather, one must ponder how a child’s statement that illegal activity conducted by her siblings qualifies as “previous statements …” as to “any allegations of abuse or neglect”. 

After all, the child did not say that her parents knew of this activity, engaged in this activity or facilitated it.  How, then, is the child’s statement a statement alleging abuse or neglect?  It is not uncommon in DYFS cases that any statement made by a child will be admitted into evidence, so long as corroboration exists.  I submit that this is not what the statute commands. 

The rationale behind admitting children’s hearsay statements of abuse is to avoid re-traumatization of a child by forcing them to relive their abuse by re-telling the tale of abuse or neglect.  But, here, this child was not saying that she was “abused” because her brothers bagged marijuana in her home.  She made no mention of her parents knowledge of this activity whatsoever.  Rather, the Court extrapolated this child’s statements into “any allegation of abuse” to justify, ex post facto, into an abuse allegation to admit her statement without an opportunity to cross examine her.  Is that the proper result? Would this child have suffered any harm from testifying that her brothers bagged weed in their home?

Even if the child may have disliked testifying in this case, that potential harm should not lead to the Court’s expansive interpretation of N.J.S.A. 9:6-8.46 to allow a child’s hearsay statement into the record, absent a finding that the statement reflects an actual statement of abuse or neglect.  To do so starkly contradicts the plain language of the statute, as well as its legislative intent.

DYFS Defense: Termination by Default


When DYFS becomes involved with a family, the clock starts ticking from the time a child is removed from a parent and placed into DYFS custody.  Parents, oftentimes battling life-long mental health and substance abuse issues, are expected to fix themselves within as little as 15 months or else the State of New Jersey will move to terminate parental rights.  Though the Adoption and Safe Families Act contains strict guidelines for achieving permanency for children caught up in the system, child welfare advocates recognize that parents likely will encounter bumps in the road… Family Courts? Not so much.

In a recent unpublished decision, DYFS v. T.R.R., a trial Court proceeded to terminate parental rights by default against a parent who failed to timely complete a psychological evaluation.  The reason for the parent’s delay?  A medical condition.  The parent supplied her medical records to document the illness, albeit belatedly, in support of her motion to vacate default.  Citing calendar concerns, the Court denied the motion, proceeded to trial and entered a judgment terminating parental rights. The Appellate Division rightfully reversed, relying upon long-established case law viewing with liberality applications to vacate default.  That was not a tough call here.

But, this case highlights a common inequity in DYFS cases.  In T.R.R., the parent was late to participate in a psychological evaluation due to her medical condition.  To the Court, this delay was inexcusable.  Yet, in the same case, DYFS was unable to meet its deadline for a bonding evaluation between the child and the foster parents because the child fell asleep during the evaluation and rescheduling occurred after the deadline.  The Division’s delay was of no moment.  Repeated bites at the apple abound for DYFS.  Parents?  One missed appointment can mean a TPR without their participation.  Do we ever see such rigid enforcement of deadlines inure to the detriment of DYFS?  Should we?