Okay, so Here’s a First!

Today, of the New Jersey Appellate Division released a two-page decision reversing a finding of “risk of harm” under N.J.S.A. 30:4C–11 in a case brought by the Division of Child Protection and Permanency that was tried over four days. No facts were discussed, no law analyzed, and yet, the court reversed.

Why? Because the Division did not oppose a reversal! It stands to reason, then, but the Division knew the finding should have been reversed, but simply did not take the initiative to assert that to the court, but rather left the court to its own conclusion. A good result for the parents in this case; however, this decision presents more questions than answers for the field of child welfare law.

We do not know from the decision if a new DAG handle the appeal and disagreed with her predecessor to try the case, but that makes no difference in my view. The “client” is the Division. While a finding under Title 30 is not quite the same as a finding of Title 9 (no registry, no prior finding to taint future child abuse investigations, etc.), is still a child-abuse finding, which our law says is a substantial weight against the parent, if for no reason other than reputational injury in its existence. Should not then the Division have an obligation to be a sure of its position before putting the parents through the emotional and financial turmoil of a four day trial and appellate briefing before such a finding is sought?

And assuming that the agency changed its position in favor of the parents after the trial occurred. Should not the Division have simply joined in consent to have the finding reversed by the Appellate Division? After all, nothing compelled the Appellate Division to reverse the finding simply because all of the attorneys in the case disagreed with the trial judge’s conclusion.

And does the procedural machination in this case not call into question other cases that the agency prosecutes against parents? How many times has a fresh set of eyes come upon a DCPP case only to have the unsupportable finding of child abuse against the parent disregarded because someone somewhere in the halls of the agency felt, however unwarranted, that a finding was needed?

We often refer to the Title 9 finding as the first meal in the coffin any termination proceeding. In termination proceedings, all doubt is to be weighed against termination of parental rights and in favor of the parent. Should that standard not also apply any time child welfare if implicated? Does that not serve the policy of our state that accords parents the constitutional right to parent while also protecting children from harm?

Hopefully, defense counsel will rely upon this case to show the strategic maneuvering of the agency in court, if for no other reason than to demonstrate to judges that the agency is not a dis-interested body that simply wants to “protect the children”. It has its agenda and should be treated like any other litigant before the court, with its motivations analyzed.

If you or someone you know is involved with litigation against the Division of Child Protection and Permanency, contact Paragano & Williams, LLC to schedule a consultation.

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