Monthly Archives: August 2012

DYFS (n/k/a DCPP) can only do so much


In an unpublished opinion, DYFS v. J.M., the Appellate Division has created a significant loophole in the notion, first established in DYFS v. G.M., that the offending parent is entitled to a dispositional hearing once he or she has remedied the harm that commenced the litigation.

In J.M., the Appellate Division upheld a trial court’s decision to terminate litigation once the father had performed all services to address an act of excessive corporal punishment. During dependency of the case, custody had been transferred to the mother. At the end of the case, everyone agreed that the father had addressed the issue. However, because the father has lost his job and was not able to be neatly resume custody of the child, the case was closed. The Appellate Division affirmed the trial court’s decision to close litigation and noted that, once the father obtained stable housing, he could apply for custody any non-dissolution (FD) proceeding.

Of course, this ruling leaves open a series of questions. Normally, once the parent has addressed the division’s concerns, the pre-litigation custody arrangement is reinstated. In this case, that could not yet happened. But, what happens when the father does obtain housing? Will the custody arrangement then resume based upon the father filing an FD action? Or, will the father have to prove a change of circumstances, because the Appellate Division directed him to file a “custody action”?

What a significant amount of time passes between this Appellate Division decision and the time when father obtains employment? One could argue that the passage of time that the child has been with the mother constitutes a change of circumstances. However, isn’t that what typically happens during the pendency of a protracted, DCPP case, which usually lasts about one year? The parent is still entitled to have the prior arrangement reinstated. Why, in this case, is the father required to file a new matter for custody?

It appears that this is yet another circumstance in child welfare law where the rules implemented are inconsistent with long – established family law principles. Another area is in foster parent litigation. We know that foster parent bonding, in and of itself, is not sufficient to warrant a custody application by the foster parents with the child has been in their care for several years. Yet, when that same child had been placed into the custody of a relative by the parent for a period as lengthy, that relative could have filed for custody, premised upon being the psychological parent of the child. See, V.C. v. M.J.B. Because of the policy of family reunification between parent and child, trumping the emotional pull of a foster parent, we gloss over that psychological bond between the child and the foster parent to serve what our society says is a superior goal.

Perhaps that is what the J.M. appellate court also sought to accomplish – namely, to support stability for a child as between his biological parents. In that sense, the father’s unemployment and inability to provide stable housing, inadvertently, led to a de facto change in custody as in the Ohloff decision – and hence, after the “test period” time has passed, a new application to modify custody must be filed.

It is uncertain the reasoning behind this decision; however, its vague directives leave much argument for future litigation for this family. What is clear from the decision, notably, is that DYFS (DCPP) is not required to be involved at that point – to assist with financing father reunification or otherwise. And as economic times continue to remain dismal, it is likely that similar decisions will be entered by the Appellate Division in the future, shifting the burden to parents to remedy child welfare concerns promptly or risk losing the agencies assistance with restoring the family unit altogether.

Defense counsel should be mindful to address this issue with parents as child welfare litigation unfolds and life circumstances may hamper and ultimate reunification, through no fault of the parent or the division.

Child Abuse Central Registry: Child Protection or Parental Punishment?


For many families, an allegation of child abuse or neglect may result in a finding without litigation. The agency investigates and determines that an allegation of child abuse or neglect is substantiated. The consequence is that the parent is then listed on the Child Abuse Central Registry maintained by the Department of Children and Families. This allows various agencies to confirm whether or not someone has “a history” of child abuse. And this is a good thing, right?

Perhaps. However, not every act of child abuse or neglect is created equal. Any substantiated finding results in a listing on the registry – from perpetrators of child sexual abuse to the everyday parent who runs into a grocery store, while leaving a young child in the backseat of a car for a few minutes. The registry does not differentiate.

Consequently, agencies that want to bar from employment those who are listed on the registry could very well be excluding people who have engaged in behavior that poses no risk to children whatsoever.

Take for instance, the family that has “history” of domestic violence. For some families, the allegation is that the children witnessed an incident of domestic violence. We know that domestic violence most often occurs in the privacy of the home. Is it likely, then, that a couple who engaged in domestic violence would, when working independent of each other, suddenly expose children who are not their biological children to an act of domestic violence? Hardly.

However, the system treats these parents the same as pedophiles and child murderers. And the consequence to this is questionable at best, from a child protection perspective. No one wants to acknowledge that there are gradations of child abuse – particularly not the social workers involved in that system. To egg knowledge that not all child-abuse is created equal is a tacit admission that some child abuse is, while still not acceptable, is not as unacceptable as other forms of child abuse. So we paint all substantiated parents the same, both by listing them on the registry and by the services that are imposed upon them.

The cost to this “one size fits all” approach is substantial. Resources that are invested in repetitive, unnecessary psychological evaluations for each and every family that is embroiled in the system takes away valuable resources that would be allocated to those families that really do require the assistance of the state in order to preserve their families. And, at the end of the day, by the time you get to your fact finding hearing in litigation, the registry is the only outstanding guillotine that requires a matter to be tried to conclusion. It is not uncommon that a family will already have been reunified following the removal prior to the fact finding hearing even taking place. This is due to the great backlog in our court system, as well as the complexities of human lives, which often necessitate interventions during the course of the case as a result of the trauma of the removal that need not have occurred in the first place.

Perhaps, we should reconsider whether child welfare intervention inherently requires the registry to be used. By doing so, we will increase the likelihood of having our resources, as scarce as they are, allocated toward those who are truly indeed, rather than those who are truly targeted by those interested with the inordinate power of our child welfare system.

Evidence in DYFS cases to be discussed in a panel discussion


On Monday, August 13, 2012, Allison C. Williams will be presenting for the New Jersey Institute of Continuing Legal Education (ICLE) in the preeminent Evidence for Family Lawyers CLE. This program is designed to provide hours of rich information about the intricacies of the Rules of Evidence in the Family Part.

Of critical importance is ICLE’s willingness to include topics related to DYFS (n/k/a DCPP) cases – a progressive move demonstrating ICLE’s continuing responsiveness to the needs of the legal community.

And, further, this is a real testament to Allison C. Williams’ fervent efforts to educate the bench, bar and society at large about litigation within the child welfare system in New Jersey.

When are DYFS services considered “reasonable”?


“Reasonableness” is imbued in our child protection laws. The agency must exercise “reasonable” efforts to avoid out of home placement. If the child is removed, the agency must provide “reasonable” services to achieve the goal of reunification. The “reasonableness” of those services is a condition precedent to termination of parental rights.

And yet, New Jersey case law is bereft of any true explication of what is considered “reasonable” for services rendered in the name of child protection. For instance, is your run-of-the-mill parenting class a “reasonable” service for the parent of a mentally disturbed, highly medicated “toxic terror” of a child with severe behavioral problems? Is “counseling” a “reasonable” service to address deep-seated psychological issues dating back to childhood, when such counseling is offered by an LCSW and not a psychologist?

And what about court-ordered services? If the division offers some services, but fails to comply with a court order providing for other services, can the totality of services rendered be deemed “reasonable”? And what about when mental health professionals that provide the court-ordered services sought by the division come up with the wrong diagnosis? New Jersey case law does not require the division to succeed in remedying the problems in a family with the services offered; however, in evaluating the “reasonableness” of those services, can a court legitimately find that a service that led a parent down the wrong path by mis-diagnosing a mental health disorder and requiring compliance with treatment of the wrong problem was, in fact, “reasonable” simply because it was sought and paid for by DYFS?

All too often, defense attorneys fail to make a probing inquiry into the appropriateness of the services sought by the division. Earlier this year, the Appellate Division decided T.S., which cautioned trial courts against surreptitiously ordering the “usual services” simply because they are the services usually ordered. Inherent in that Appellate Division ruling is an acknowledgment that over-servicing a family is not reasonable.

But aside from the sheer volume of the repetitive services offered in these cases, the issue of “reasonableness” remains an underutilized area of parental defense in these cases. When addressing the many requests made of parents in these cases, defense counsel should be ever mindful of the common sense, or lack thereof, of what is being requested.

Simply put, when baby has a wet diaper, the solution is not to give her a bottle. Similarly, when dad has an alcohol problem, the solution is not to stick him in a parenting class.

If the question being asked is, “Which came first, the chicken or the baseball,” perhaps we should be questioning the “reasonableness” of the question (i.e., the Division’s services), and not the “reasonableness” of the parent’s inability to answer a ridiculous question.

Can I sue DYFS?


Parents often wonder if they can file a lawsuit against the Department of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS). A simple Google search will locate many websites devoted to the goal of “suing DYFS”. Does this really happen? How often? And, who is the prevailing plaintiff when battling the state of New Jersey over its flawed child protection agency?

Unfortunately, only in very limited circumstances can a parent sue DYFS for its often ill-conceived interference in family life. DYFS caseworkers are afforded immunity when performing work in their official capacity as employees of the state. Only when conduct is performed outside the scope of their broad-ranging job duties, or when action is taken that can be considered tortious, may an employee be subject to civil penalties.

Unfortunately, much bad behavior is tolerable when acting under the guise of “child protection”. Perhaps this is because our society feels a moral imperative to protect those who cannot protect themselves. But, does state interference truly prevent and/or remediate harm to children? Or is it more often the case that state involvement causes more harm than good?

To be certain, many families require state assistance in order to function minimally and to preserve their families. However, the vast overreaching of many caseworkers and investigators call into question the legitimacy of those well intentioned, dedicated social workers who are truly desirous of preventing out-of-home placement and keeping families together through the provision of services and proper case management.

As is often the case, it may be that the only way to effectuate change in the system is to initiate litigation and bring the problems to the forefront. Only when we begin to see the evisceration of families as a societal problem, and not just a poor person’s problem, will families in New Jersey truly be safe from obtrusive government intervention.