DCPP/DYFS Attorneys Making a Difference

Today marks the end of our first official month in business here at Paragano & Williams, LLC. In that brief time, the firm has signed up over a dozen new clients; won Domestic violence trials; secured reunification of a client accused of heinous child abuse with the alleged child victim that she never harmed; navigated investigations brought by the Division of Child Protection and Permanency (DCPP), f/k/a the Division of Youth and Family Services (DYFS); thwarted interruption in our client’s parental access due to DCPP investigations; sought and obtained an emergent remand from the Appellate Division, with reassignment to a different trial court judge; and secured speaking engagements at the NJSBA Annual Convention and the Barry Croland Family Law Inns of Court.

We appreciate the confidence that others have in our abilities, which we demonstrate time and time again.  We are committed to zealous advocacy and will remain the Aggressive Advocates who Care for our Clients.

We thank our adversaries, fellow practitioners who refer us business, and the judiciary for your loyal support and encouragement during our transition.  But most of all, we thank our wonderful clients for bestowing upon us the honor of representing your interests.  It is an awesome responsibility, which we take very seriously.

Here, at NewJerseyDYFSdefense.com, we are commited to providing you with excellent service.  If you require representation in a DCPP matter or assistance in navigating the perilous process of a DCPP investigation, contact Paragano & Williams, LLC to schedule a consultation.

Recording of DYFS Investigation Interviews

A number of parents have contacted me to seek guidance on how to handle child welfare investigations. A common query is whether or not it is permissible to record an interview with the investigator from the Division of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS). The short answer is yes, child welfare investigations may be tape-recorded. However, the better question is whether or not the investigator will allow such recording.

So long as the tape recording is of a conversation to which the parent is a party, the recording is authorized and is not a violation of either of the New Jersey Wiretap Act or considered a tortious invasion of privacy. Unfortunately, the vast majority of division investigators will outright refuse a request to tape-record their conversations with the parent. This, of course, begs the question: If you are going to perform your job as required by law, why would you oppose the recording of your interview with the accused parent? Is it because you cannot manipulate the responses provided by the parent if those responses are captured on tape recording? Perhaps it is because you fear a lack of perfection in performing your job duties, which may be brought to the attention of your supervisor.

In fairness to the workers, most people would feel some degree of anxiety if the routine performance of their job duties was captured on a recording device. Nevertheless, not only should workers consent to tape-recording of interviews, but they should encourage them. The information gathered by a Division investigator is not dispositive of the outcome of the child welfare investigation… but, it greatly influences the outcome.

The information collected is to be provided to the agency supervisor, and ultimately, a determination will be made as to whether a child is at risk of harm, has been harmed and/or is the subject of abuse or neglect by the parent. However, because caselaw imbues the Division with a “high degree of reliability” in its collection of information that is documented in agency records, information later admitted into evidence in court proceedings summarily and with little personal knowledge by the testifying worker, it is imperative that the information collected be accurate.

The high caseloads of division investigators, the speed with which referrals must be investigated, the timing of presentment to the parent for their interview, the stress of the situation and the reality that fact gathering during stressful confrontations between potential child abusers and Division workers may distort perception, justifies – if not compels – the necessity of tape-recording to accurately capture what has been reported. Many Division workers are well-intentioned professionals who aim to protect children from abuse and neglect. However, because that is their stated objective, many workers come to believe that every referral investigated should be approached from the law-enforcement perspective of aiming to “shakedown” the crime they feel is ongoing. Consequently, very few parents have reviewed investigation summaries with counsel and found their statements accurately documented in agency records. The well intentioned social worker “documented” what she believed had occurred, rather than what the parent stated had occurred. This interviewer bias has been the subject of numerous psychological studies.

With all that is at stake, the legislature should require these investigation interviews to be recorded. If the goal is to truly protect children who have been abused or neglected, or are at risk of same, our system should want harmless families to be left alone so that division resources can be devoted to those truly in need of assistance.

If you or someone you know would like assistance with a Division investigation, that may or may not involve a tape-recorded interview, contact Paragano & Williams, LLC for a consultation.

The Value of DYFS Administrative Appeals

When the Division of Child Protective and Permanency (DCPP), formerly DYFS, investigates an allegation of abuse or neglect, the alleged perpetrator is notified, in writing, of the investigation findings.  As of April 2013, there will be four potential determinations from the investigations. But for now, the determination will be either substantiated or unfounded.

If the allegation is substantiated, that means that the Division has decided that the parent has done something to violate Title 9, the statute defining abuse and neglect of children.  See, generally, N.J.S.A. 9:6-8.21(c).  In that event, your name will be listed on the Child Abuse Central Registry.  See, N.J.S.A. 9:6-8.11.  If the Division does not file litigation, then the only way to challenge the finding is to request an Administrative Appeal.

Administrative appeals are a much easier way to secure vindication than the Superior Court process.  For starters, if the Division is not actively litigating against the parent in Court, the workers involved are generally less married to the notion that the “right” thing to do is to list the parent’s name on the Registry.  Also, administrative appeals are not typically heard until the case is 8 months to a year old.  By that time, the witness’ recollection is stale, evidence eroded and interest waned.

Most importantly, an Administrative Law Judge (ALJ) actively manages the appeal, conferences with the attorneys and can often be very instrumental in convincing the Division of the fallacy of its position.  While Superior Court judges also conduct conferences, they rarely steer these cases toward settlement.  The case is either tried to conclusion or the parent stipulates.

Administrative appeals are a useful and effective tool to secure the removal of a parent’s name from the Child Abuse Central Registry.  If you or someone you know wants your name removed from the Registry, contact Paragano & Williams, LLC to handle your administrative appeal.


Frivolous Litigation brought by DCPP

When a party to litigation files an action or asserts an affirmative defense to an action which he knows has no basis in law or in fact, the adverse party may serve notice pursuant to the Frivolous Litigation statute seeking withdrawal of the frivolous pleading within 30 days or an award of sanctions will be sought. See, N.J.S.A. 2A:15-59.1. The requirements to seek sanctions for frivolous litigation can be found in Court Rule 1:4-8.

So, one must wonder: Can Frivolous Litigation sanctions be sought against the Division of Child Protection and Permanency (DCPP) when it asserts a knowingly unsupportable position to achieve temporary custody, or worse, to ratify a Dodd removal (i.e., a removal performed with no court order)?

The short answer is Yes, but courts are not likely to enter sanctions against the Division for many reasons:

1. If DCPP pays out money to recompense parents for its wrongdoing, those funds will not bd available to help other families genuinely in need of services.

2. The time, effort and cost involved in unearthing a “knowing falsehood”, rather than an inadvertent one, disincentivizes courts to allow exploration of the issue in pending court actions, and filing a new court action creates all sorts of problems with confidentiality.

3. Most judges are not willing to say that s/he erred by believing the Division, which is almost universally done in removal hearings. Doing so would undermine the court’s ability to give deference at the start of a case (which will make decision-making that much harder and more time-consuming).

So, should you seek sanctions against the Division, with this great likelihood of being unsuccessful? Absolutely!

Unless and until the court is presented with a compelling pattern of egregious overstepping by the agency, as demonstrated through aggressive applications by wronged parents, errors on the part of the agency will continue to appear as misguided efforts to protect children, rather than part and parcel of a pattern of abuse by the agency guided by its culture of ill-conceived arrogance about parenting and families.

Rome was not built in a day. Similarly, upending the culture of overreaching by the Division will not occur in a day. We must be ever mindful of the need to battle this culture, and the frivolous litigation statute is one way of doing that.

If you or someone you know has been the subject of a wrongful custody action or removal of a child by the Division of Child Protection and Permanency (i.e., DCPP/DYFS), please contact us to Schedule a Consultation to discuss how we can help.

Victory in Family Court Matter involving DYFS: A Cautionary Tale!

The firm of Paragano & Williams, LLC, has achieved a resounding victory for our client in the Appellate Division on an emergent basis!

We represent a Father wrongfully accused by his pre-teen daughter of excessive corporal punishment.  The Division of Child Protection and Permanency (DCPP), f/k/a the Division of Youth and Family Services (DYFS) investigated and deemed the child’s statements unfounded.  The Mother took it upon herself to remove the children from the Father in New Jersey, behind his back, and took them to her home in Maryland.  When law enforcement in both states refused to intervene, the Father retained Ms. Williams to secure their return.

Unfortunately, as is often the case, the trial judge had an immediate, negative reaction to the Father solely because of the DYFS investigation.  Never mind that DYFS ultimately concluded that no abuse or neglect had occurred.  Never mind that DYFS made that determination before the Father filed an application in Court.  The trial Court heard “DYFS” and immediately formed a perception that irreparably tainted the proceedings.  Believing the child’s words within the DYFS report, the trial Court became married to allegations that even the Division found not credible.

Without a trial, the court granted the mother custody and authorized her to start the children’s lives anew in another State.  The Appellate Division has reversed and remanded – on an emergent basis – to a different trial Court judge for an evidentiary hearing as required by law.  Proof positive that zealous advocacy can achieve justice, the pursuit of which is the passion of Paragano & Williams, LLC!

This, my friends, is a cautionary tale.  The Division of Child Protection and Permanency does not always substantiate child abuse or neglect.  Many times, the Division has access to witness statements, school records, medical reports and other evidence that normally would never be presented in Court, absent subpoena power, depositions and trial dates at substantial cost to the families.  Non-dissolution (FD) proceedings are replete with instances of well-intentioned jurists using the Division as a discovery agent and to determine issues of custody and parenting time.  That is not the Division’s role.

Unfortunately, parents rarely have the resources to battle the Division and to refute its collection of information.  In this instance, the Division took all of that voluminous information and made the determination that abuse and neglect was simply not present.  While I certainly do not suggest that the Division cannot err, the trial judge cannot dispense with a trial, rely upon the information gathered by DYFS and written into a report — without testimony — no matter the Division’s conclusion or the trial court’s agreement or disagreement with that conclusion.

Luckily, for our client, a new trial Court judge will take testimony in this matter, in the pursuit of the best interests of the children.

An interesting article detailing the importance of psychological experts in custody matters.

About The Children, LLC's Blog

 How to Avoid a Biased Recommendation from an Expert Witness

                In a custody and divorce situation, having an expert witness can either improve your case or work against you, depending on what side of the battle you’re on. Typically, father’s have a harder time obtaining custody of their kids. In cases like this, having an expert witness disclosing information to the judge that is against you can make things incredibly more difficult. What’s an expert witness? This is a person who has sufficient training, skills or knowledge such that the community deems them to be professional experts on a particular subject. This could be a Psychologist or a legal professional that is brought in to evaluate and assess the situation. In family law, this is usually because one part, or both parties involved, wants to have a professional determine a child’s psychological stability or assess a person’s ability to…

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Supreme Court Rules No Automatic Abuse from Drug Use During Pregnancy

The New Jersey Supreme Court has put its foot down against DYFS automatically ripping custody of a newborn child from its mother due to evidence the mother used drugs during pregnancy. Without expert evidence that the child has been harmed or is in imminent danger or at substantial risk of harm, the Division of Youth and Family Services (DYFS), n/k/a the Division of Child Protection and Permanency (DCPP) cannot enter a finding of abuse and neglect under Title 9, the unanimous court held Wednesday in DYFS v. A.L., A-28-11.

The relevant section, N.J.S.A. 9:6-8.21(c)(4)(b), cannot be used to protect a fetus since, the court held, the Legislature drafted Title 9 to protect children only after birth.

On September 10, 2012, we spoke about this very issue and what we knew would be this precedential ruling. See previous post on this site. Hopefully, armed with this wonderful decision for parental defense advocates, the division will make appropriate “reasonable efforts” required by law to prevent removal, rather than take infants from their mothers at the hospital solely because of her addiction.

If you or someone you know suffers from a drug or alcohol problem and fear the loss of your baby or excessive intrusion by the Division, contact us to schedule a consultation to discuss your matter.

Find out if Your Name is on the Child Abuse Registry

Parents have recently inquired of me as to how they can find out if your name is on the child abuse registry. The registry is maintained by the Department of Children and Families (DCF). These agency records are confidential pursuant to statute. See, N.J.S.A. 9:6-8.10a. However, in certain limited circumstances, one may find out information that is otherwise confidential per statute.

If a parent or guardian is involved in a division matter, confidential information may be released to the extent necessary to help negotiate a case plan or discuss services for a family. N.J.S.A. 9:6-8.10a(b)(19).

If the matter is in active litigation, the parent’s attorney may have access to the confidential information. N.J.S.A. 9:6-8.10a(b)(17).

Finally, if the information is sought while no litigation is pending by the division, but other litigation exists or is contemplated, the parent may seek a court order to compel the release of the information. N.J.S.A. 9:6-8.10a(b)(6)
If a parent is listed on the registry, they are entitled to appeal this administrative finding. The division will notify the parent in writing of the administrative right to appeal, which must be taken within 20 days of receiving written notification by the agency of its finding. For this reason, the division typically will advise the parent of the existence of a substantiated finding, even if the written notification has been sent to the parent. If the parent has not timely appealed, the division may choose to allow an administrative right to appeal; however, if not, the parent’s only recourse is to proceed to the Appellate Division to compel the agency to allow an administrative appeal.

For more information about gaining access to the registry and other confidential information, please contact our office and schedule a consultation to discuss your particular circumstances.

DCPP Court: Desperately Seeking Logic

In the world of child protection, judges are often inclined to “err on the side of caution” when faced with requests for parenting time. Almost universally, parents are required to be supervised when the litigation commences. As the case proceeds, that supervision is often lessened to the point of allowing unsupervised time leading into reunification.

But how often do we truly question the necessity for supervision, let alone the parameters of supervision of parenting time? Recently, I observed a court proceeding where a mother was declared not protective of her children because she had allowed her husband, the perpetrator of domestic violence, to return to the home and continue his abuse of her in the presence of the children. This was the classic “failure to protect” case. The domestic violence victim was allowed only supervised parenting time with the children; however, it was allowed to be liberal and reasonable supervised parenting time. Significantly, the judge was emphatic that the mother could spend as much time with the children in that supervised setting as she desired, so long as she did not spend the night.

Of course, this begs the question. What exactly would she “fail to protect” the children from while they are sleeping in their beds at night?! And if someone else is entrusted with the care of the children, isn’t it that person’s responsibility to protect the children?

Similar questions arise in cases where the allegation is excessive corporal punishment. And most times, the parent accused to be excessive in corporal punishment is required to be supervised. Do we ever stop and think that the best court order for such a parent would be to simply bar any corporal punishment pending an outcome of the case? And if supervision is required, could we not protect the children by simply having the supervisor sleep in the same room with the children so that the parent accused of excessive corporal punishment could not have access to them at night?

But let’s take it one step further. Has anyone ever stopped to question the “logic” of having a parent barred from the home at night time under the theory of requiring supervision, where the allegation is excessive corporal punishment? After all, does anyone really think that the accused parent is going to wake up the children in the middle of the night just for the fun of beating the children? Really?!

Must we assume that every parent accused of poor judgment in parenting requires line of site supervision at all times? It appears the general consensus is that we must in order to be most protective of the children. However, if we consider the overwhelming intrusion into family life and unfortunate impingement upon parental autonomy where supervision is routinely imposed, perhaps we will broaden our perspective on these cases and seek an appropriate compromise that will both ensure child protection and constitutional parental rights.

If you believe the judge in your case is being unduly restrictive as to your parenting time, feel free to contact us to schedule a consultation.