Monthly Archives: October 2012

DYFS Cases name both Parents as Defendants


Parents often ask me why the non-offending parent is listed as a defendant when the State of New Jersey, vis-à-vis the Division of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS), files a lawsuit in court. The answer is simple. Because the state is seeking relief against the parents, whether that parent has done anything wrong or not.

Usually, in these cases the division is looking for the court to order the parents to call operate with services for the child who has been allegedly abused or neglected. Both parents have a right to be heard and to oppose any such relief as to their child.

Of course, this raises an important irony. When the court has jurisdiction over the child, which occurs as soon as the division files an action, services are routinely ordered for the child. This may include evaluations, therapy, mentors, school assistance, Financial assistance, etc. If a parent were inclined to oppose such “services”, what would be the end result? With rare exception, the parent’s opposition would be noted, but not honored, and services would be ordered in any event.

We do have the recent case of the New Jersey Division of Youth and Family Services vs. T.S., Which cautions the trial court against ordering services simply because they are “routinely ordered”; However, those services are related to the parent – not the child.

In reality, the state wants the parent to participate in the litigation – whether they are the cause of it or not – as they will be required to implement any services for the child, Including, for instance, transporting the child to therapy, assisting the child with any tutoring or mentoring that is provided for the child, giving background information to any professionals performing evaluations, etc. And, if nothing else, the non-offending parent will want to know what is being alleged as to his/her child.

Non-offending parents should use their participation in the litigation for its intended purpose of facilitating a resolution of issues impacting the child. For any litigation that follows the child welfare case, the parent will then be armed with information about the welfare of the child that may bare upon issues of custody, parenting time, and related issues.

Heightened Burden to Terminate Parental Rights of a Teen Parent


The New Jersey Superior Court Appellate Division has provided trial Courts with guidance vis-a-vis an analytical framework to evaluate the State’s efforts to terminate the parental rights of a teen parent. In the New Jersey Div. of Youth and Fam. Svcs. v. L.J.D., the Court established a “heightened burden” for guardianship matters involving teens. This “special circumstance” of teen parenthood requires “services to aid the development of the child-parent’s maturation” and likely necessitates extending reunification efforts beyond the twelve-month timeframe mandated by N.J.S.A. 30:4D-61.2(a) and N.J.S.A. 9:6-8.54(b). These are important guideposts to evaluate future TPR cases involving teen parents.

This 55-page Decision, authored by Judge Lihotz, raises many questions, not the least of which is the appropriateness of “services” offered by the agency to parents from whom children have been removed. In this case, the parent argued that services were not appropriate because the Division did not provide one last service – a Mommy & Me program – that may have been sufficient. The Court rejected this argument – not based upon the program proposed, but based upon the volume of “services” that otherwise were not utilized effectively by the parent.

This demonstrates the need for parent-advocates to oppose the routine referrals made for services when those services are not likely to benefit the parent and child. Services should not be rejected out of hand; however, if the only conceivable benefit to a parent in a particular service is to aid the Division is increasing its list of “services” offered to meet its “reasonable efforts” mandate, the service should be opposed.

Each offered “service” should be evaluated. Ask for Resumes of Service Providers. Request detailed information about the program guidelines. If the program is geared toward substance abuse, and the parent’s primary issue is psychological disorder, oppose this service being required of the parent. Or, at the very least, oppose the service being included in the list of the Division’s “reasonable efforts” to reunify. In all litigation, cases are won and lost on the details. Child welfare cases are no different. Make your record in these cases by holding the Division to its burden – whether it be the “usual” burden or the heightened burden of L.J.D.

Parental Alienation will NOT be included in DSM-V


Despite aggressive advocacy to accomplish the feat, the American Psychiatric Association has declined to identify Parental Alienation Syndrome (PAS) as a separate, diagnosable mental health disorder.

“The bottom line – it is not a disorder within one individual,” said Dr. Darrel Regier, vice chair of the task force drafting the manual. “It’s a relationship problem – parent-child or parent-parent. Relationship problems per se are not mental disorders.” Opponents to including PAS in the Diagnostic and Statistical Manual of Mental Health Disorders-Fifth Edition (DSM-V) also say that including the diagnosis would increased the cost and litigiousness of some high conflict litigants, as it would have provided another opportunity to debate whether one does or does not suffer from this very specific diagnosis, and if so, what degree of culpability can be assigned to the individual and what treatment modalities should be employed beyond those assigned to other diagnosable mental health ailments which the parent faces.

For a review of the varying opinions regarding this issue, check out this article discussing the recent news:

http://www.huffingtonpost.com/2012/09/21/parental-alienation-is-no_n_1904310.html

Intoxication from Prescription Drugs is NOT automatically Child Neglect


On October 2, 2012, the Appellate Division published the case of DYFS (DCPP) v. S.N.W., providing trial Courts with guidance to determine allegations of neglect where a parent consumes prescription medication to the point of intoxication.

In S.N.W., the parents both ingested prescribed Xanax – allegedly more than the maximum dosage permitted per day – while caring for their children, and as a result of the ingestion, became shaky and unstable, coherent, but visibly intoxicated. During the initial trial, the only evidence of intoxication was the observations of the police officer and the DYFS (DCPP) worker. No medical evidence supported intoxicated; none was offered. Evidence tended to suggest that the mother had taken more medication than was prescribed.

The trial court made a finding of neglect, after which an appeal ensued. Ultimately, the case resulted in this published decision, where the Appellate Division gave us two valuable holdings for defense of parents in these cases. First, the Court held that trial Courts MUST focus on the conduct of the parent when evaluating neglect cases – the G.S. standard of “willful and wanton misconduct” that rises to the level of recklessness MUST be present to have “neglect” pursuant to N.J.S.A. 9:6-8.21(c).

Second, if the parent ingests medication as prescribed, the legal standard for neglect precludes a finding of neglect. However, if the medication dosage was exceeded, a neglect finding is NOT automatic. Rather, the Court must evaluate various factors, including but not limited to the amount ingested, the physical effect on the parent, whether excess dosage was accidental or deliberate, and the ability of the parent to exercise the minimum degree of care in that state. Again, the Court reiterated – and strengthened the ultimate conclusion – that knee-jerk assumptions of “drugs = neglect” are NOT acceptable under New Jersey law.