“Erring on the Side of Caution” is still Erring

I recently had the pleasure of speaking to a judge about my most recent publication, “Play by the Rules”, an article which examines the court rules and statutory requirements where abuse or neglect is alleged by a parent or guardian versus the agency. The judge and I got into an intellectual debate about the role of judges in these cases. He suggested to me that judges are well intentioned and always try to “err on the side of caution”. While I agree that most judges are well intentioned, the “error” should be avoided no matter which side it falls.

I often sense that judges consider potential child abuse to be so egregious that almost anything on the other side is a de minimus intrusion that should not be avoided. The problem with this mindset is that it fails to recognize that the agency often overwhelms and antagonizes families, making the situation worse than it actually was. Then, interventions are implemented for the purpose of addressing family distress that was brought about by the agency’s involvement, rather than by the family’s inherent functioning. This is akin to breaking someone’s leg, applying a cast and applauding yourself for having “solved” the problem of the broken leg. But for your breaking the leg, your cast would have been unnecessary.

On the flipside, the agency often does provide necessary intervention and assistance to families. The threat of removal often does force people to make necessary improvements in their family situation that otherwise would not have been undertaken. Parents going to substance-abuse treatment, undertake counseling and commit to diligent thoughtful consumption of prescribed medication to avoid the potential removal of their children. So, in effect, the agency can and does accomplish many worthwhile interventions in many circumstances.

However, where a family resists the division’s intervention, courts tend to hold that against them and work to effectuate the divisions forced involvement, where a judge may otherwise have been able to resolve the issue without such involvement. It is not unheard of, and in fact is rather common, to have a family judge order a parent to have supervised parenting time pending completion of substance-abuse treatment. The agency is not needed in this circumstance.

New Jersey law allows for any person with an interest in a child to file an action relying upon the strictures of title 9. See, N.J.S.A. 9:6-8.34. Get, the judges prefer to have the agency investigate and determine child abuse and neglect, often giving undue weight to the agency’s perspective on an issue. If the agency files a complaint, the parent has a right to a trial and discovery and a probative analysis of the allegations made against him. However, where divorcing spouses make allegations against each other, the court will often direct the agency to investigate and simply rubberstamp whatever outcome they reach, dispensing with the necessary due process of a trial and discovery and the right of the parent to seek vindication in court.

For these reasons, the article, “Play by the Rules”, proposes that there be one set of rules and requirements and due process considerations where child abuse and neglect is alleged – no matter who makes the allegation.

But beyond this proposition, it should never be lost upon our judiciary that the child welfare agency is nothing more than a series of individuals who are making judgments based upon information. Just as information given to the mother in a contested custody case must be vetted before the court says the father should be held accountable for same, so too must the agency’s information and perspective on an issue be tested in court. Failure to do so just serves the families of our state. Giving undue weight to the opinion of the agency, particularly where the court is not aware of what information it relied upon in reaching its conclusion, disserves families.

And lest we forget, erring on the side of caution is still airing. And judicial error should be avoided at all costs.

Who Causes the Harm?

In protracted DCPP litigation, there are often many twists and turns in the cases. Sometimes, the “non-offending parent” becomes the target of an investigation by the agency. This is common in cases where one parent is substantiated for abuse and the other parent is subsequently substantiated for “failure to protect” the children from the alleged abusive parent.

If children are in the custody of the alleged non-protective parent, any distress by the children is typically attributed to that parent. But is that truly the case?

Is it not harm in and of itself to have the child welfare agency and its many, many individuals (caseworkers, investigators, supervisors and liaisons), the law guardian’s office (with its many investigators and attorneys), parents attorneys and a judge or two, involved in the life of a child? If the child is struggling with the loss of one parent who is barred from access due to court orders in DCPP Court, does that parental absence not cause immediate harm and trauma to the child? Especially when the child knows the parent has not died but is simply not authorized by the court to see them?

And can we place upon the “non-offending” parent the burden of the children’s emotional stability, when it is the very existence of the “helpers” of the child welfare system that is increasing if not causing the distress in the child?

In my experience, these thorny issues are too amorphous for this to be determined with any degree of psychological certainty. Expert reports are obtained and testimony is provided, which amounts to little more than the “gut reaction” of the expert. Absent a smoking gun such as a child confessing that the “non-offending” parent is berating the child about his/her offending parent, the child’s emotional response are often the product of all that plagues him/her.

Sadly, those involved in the child welfare system often fall into one of two camps – i.e., the child-saver camp and the parent-defender can. Those in the former category would be inclined to believe that child distress is a product of nonsupport by the “non-offending” parent. Those in the latter category are more inclined to believe that the child’s distress is a product of the enormous, oppressive invasion of the child’s life by the child welfare system.

Whichever view is adopted, the opinions on this topic are too significant to be decided by “gut reactions”. That is exactly what happens day in and day out. Consequently, many practitioners advise parents whose spouse has been substantiated to either sever ties with that parent or at least down play the relationship to appease the players in this system who take a predatory stance when faced with a parent they feel is supportive of a parent found by a judge to be abusive.

This post presents no position on the issue, but simply provides food for thought for future consideration.

If you or someone you know is involved in the child welfare system as either a targeted parent or a non-offending parent, contact the Williams Law Group, LLC to schedule a consultation.