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In an unpublished opinion, DYFS v. J.M., the Appellate Division has created a significant loophole in the notion, first established in DYFS v. G.M., that the offending parent is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.

3 thoughts on “DYFS (n/k/a DCPP) can only do so much

    • Edya, when you say “corruption”, what do you mean? Do you mean overreaching by DCPP caseworkers? Political finagling of oversight in a given case? Or, simply a DCPP investigator or caseworker making poor decisions in your family’s circumstances?

      If you are unhappy with an investigator or caseworker, you should complain to a supervisor. If you cannot establish a productive relationship with the caseworker, DCF protocol requires that that person be removed from your family matter. If you have greater concerns about the handling of your matter within the agency, you should contact the commissioner, Allison Blake, first.

      Unfortunately, what most people conceive of as “corruption” is not so defined in our legal system. For a more detailed analysis, please contact my office and schedule a consultation where your matter can be discussed with greater specificity.

      Good luck to you!
      Allison C. Williams

      • Thank you for the helpful information. Here is the letter that I sent to the commissioner. Names has been omitted. Unfortunately, I currently have a public defender.
        To whom it may concern:  
                         My name is XXXXXXXXX and I have completed all my court ordered services. On July 18, 2012, the division was court ordered to obtain and issue a report from XXX (XXXX XXXX XXXX) stating that I completed my services and retained skills or subpoena the clinical director of the facility. On August 7, 2012, I refused mediation between myself and ESTRANGED HUSBAND citing a past history of domestic violence and my unwillingness to sign a confidentiality agreement. At this time, it was revealed to me by the mediator that mediation was for me to sign over custody of my older two children. On this date, I had my unsupervised visits taken from me.  I was also ordered to take another Psychological evaluation based on the premise that they did not have proper documentation stating that I have completed therapy. They also stated that the therapist was no longer employed at XXX. Now I am back to therapeutic visitations when after they approved my home I was supposed to start in home visitation. They approved my home. 
                    Attached with this email is a copy of the signed XXX release form and a copy of the letter of completion of services signed by my therapist, XXXX XXXXX, who still works at XXX and the clinical director, XXXX XXXXX, who was supposed to be subpoenaed. I don’t understand why my progress has regressed it feels like I am being punished for not participating in mediation.
                     They also stated in court that my allegations against ESTRANGED HUSBAND were brand new and to allow time for ESTRANGED HUSBAND to find appropriate housing. ESTRANGED HUSBAND has failed to submit himself to a background check and find appropriate housing twice in a 17 month period after being court ordered to do so. I have repeatedly stated to the division, therapists, and the court that my past domestic violence issues did not arise from LONG TERM BOYFRIEND . I have not suffered from physical harm or abuse by the hands of LONG TERM BOYFRIEND OF 8 YEARS. It is clearly on court record that I submitted my previous restraining orders from U.S. STATE on ESTRANGED HUSBAND back in the Spring of 2011. Those retraining orders was issued after ESTRANGED HUSBAND was arrested for showing homicidal tendencies by kicking down the door to my former CITY, STATE address and trying to suffocate me with a pillow until I passed out. According to my lawyer it is a part of DYFS case record that my oldest daughter witnessed the abuse between me and ESTRANGED HUSBAND. She states seeing ESTRANGED HUSBAND hit me in the stomach while I was pregnant with SON. So, I don’t understand why this information has been ignored and or misdirected for well over two years.
                       In court, I have found out that ESTRANGED HUSBAND visitation is being conducted in a location five blocks from my home. This is a serious threat to my safety. I do understand it is standard practice for the Division to favor the uninvolved parent, but it is not safe for my two oldest children by helping the uninvolved parent hide his violent history by ignoring and not fully investigating my claims and the evidence to support them.
                      While these concerns are being looked into, I want my caseworker and supervisor to be replaced. I have not been able to establish a productive relationship with my caseworker, XXX XXXXX, and supervisor, XXXX XXXXX, I have successfully kept in communication and compliance with my caseworker, despite the fact that her voice mailbox to her office number and cell phone is full majority of the time. And she constantly claims in court that we have no contact. CASEWORKER and her supervisor, XXXX XXXX, makes numerous false statements and accusations. I have received emails from my lawyer where there was accusations that my front door looked as if it was kicked in, I lived in a small basement apartment, and I no longer lived at my current addresss, Since these accusations were made, SUPERVISOR and FORMER CASEWORKER has came to my home, saw that LONG TERM BOYFRIEND no longer lived there and I did not live in a basement but a three bedroom, two bathroom home with adequate furnishings. My apartment was approved. SUPERVISOR has a habit of telling me that certain actions are court ordered and or mandatory when I learn later that it was a voluntary effort. For example, She tried to force me into accepting mediation after hearing my concerns claiming it was court ordered and mandatory. My lawyer had to point out that it was voluntary and not court ordered.

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