Category Archives: Administrative Issues

The Importance of Appealing a DYFS/DCPP Substantiation of Abuse/Neglect


If the Division of Child Protection and Permanency substantiates an allegation of child abuse or neglect, the perpetrator’s name is listed on the Child Abuse Central Registry. N.J.S.A. 9:6-8.11. This is a confidential list that is maintained by the Department of Children and Families. Only a limited number of agencies have a statutory right to access the Registry, including licensed daycare providers, adoptive agencies and residential elder care facilities. For all others, a request must be made in writing to the Division to release the information, and failing same, court order must be sought.

School districts employing teachers are not, by statute, entitled to check the Registry. However, nothing in the law prevents an employer (including a school district) from requesting an applicant’s consent to authorize the Division to release this information for purposes of evaluating her employability. Further, nothing in the law protects an applicant from an employer’s choice to draw an adverse inference from an applicant’s failure or refusal to release the information.

So, if a person is listed on the Registry, they remain in jeopardy of having an employer-requested background check that could preclude him from employment. If you receive a letter advising that the Division had substantiated an allegation of abuse or neglect, you should appeal. Instructions will be provided in the letter, advising where to send the request and what information is required.

An administrative appeal occurs in the Office of Administrative Law (OAL). The Rules of Evidence do not apply. The procedure is trial-like, but the cases are tried “de novo”. Rather, the a question for the Administrative Law Judge is whether the agency’s decision is arbitrary, capricious or unreasonable. Because of these differences between Superior Court litigation and administrative practice, it is imperative that an accused parent/caregiver select an attorney that is skilled in handling these matters.

If you or someone you know has been substantiated for abuse or neglect and desire to appeal, please 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.

 

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)
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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.

New Evaluation Protocol for Child Abuse Investigations


Effective in April 2013, the Division of Child Protection and Permanency (formerly the Division of Youth and Family Services) will have a new administrative options for determinations of child abuse investigation. As the law stands now, when the division investigates an allegation of child abuse or neglect, there are only two options for the “outcome” of the investigation. Either the allegation is substantiated or unfounded.

“Substantiated” means that it is more likely than not that the alleged offense did occur and/or that the alleged perpetrator is responsible. “Unfounded” means that either the alleged offense is not more likely than not to have occurred or that the alleged perpetrator is not the one responsible for the abuse or neglect. Once the referral is received, the investigation outcome can be based on the initial allegation or upon any information arising from the investigation.

There once was a time when there existed a third category of outcomes between “unfounded” and “substantiated”. That category was “unsubstantiated”. “Unsubstantiated” means something more than unfounded – i.e., that the referral was not “baseless”, but that the information could not be verified one way or another and hence, the division would not characterize the allegation as abuse or neglect.

Now, the new administrative protocol will have four levels of evaluation. They will have varying degrees of consequences, but the most significant is that only an allegation that is “substantiated” will result in a listing of the parent on the Child Abuse Registry maintained by the Department of Children and Families (DCF). On the flipside, only allegations that are “unfounded” will result in an expungement of the child abuse records, which will occur within three years of the “unfounded” outcome. For the two into room findings on child abuse investigation, the division will retain child-abuse records and may have some increased authority to provide services to the family absent consent; however, the parent will not be listed on the registry.

While it may appear to those who handle these cases that the new system provides opportunities for “settlement”, practitioners should still be wary of “settling” these cases. The reason is that the prior administrative finding, if not contested and/or if not resolved as a fact finding hearing with the finding other than “unfounded”, future child abuse investigations may present a greater difficulty for your client to defend them if the matter had been simply “unfounded”. As with any burgeoning area of the law, new administrative and/or legislative imperatives do still require a full analysis of potential consequences, with disclosure to the parent of the uncertainty of consequences, before a body of law will be established to address the new regulations. Parents should be voire dired about their understanding of the “settlement”, if any is proposed.

Further, defense counsel should be careful in negotiating and place into consent orders the representations upon which the parent is relying in “settling” their case. This ensures that future child abuse investigations will not have the presumptive effect that our law currently provides to substantiated child abuse in a parent’s history.

For more information about child abuse agency regulation changes, please contact us to schedule a consultation.

Should a Parent Accused of Abuse or Neglect Agree to an Interview with DYFS?


Parents often contact me and ask if the accused parent is required to be interviewed by the Division of Youth and Family Services (DYFS), n/k/a the Division of Child Protection of Permanency (DCPP). Some parents want to exonerate themselves and often feel that a quick chat with the Division may resolve the issue. Other parents fear exchanging any words with the Division, no matter how innocuous the alleged infraction or conciliatory the worker who contacts them. The determination of whether or not a parent should be interviewed is fact sensitive and requires legal advice. This post is not designed to replace that advice.

The Division has an obligation to investigate every referral made alleging potential abuse or neglect or parental unfitness. Their focus is on actual harm and risk of harm. To do that, an interview with the child is typically required. For non-verbal children, the investigator must personally observe the non-verbal child. Once these minimum requirements (and others) are satisfied, the Division must speak with the accused parent.

If the parent refuses to be interviewed and the Division can discern that there is no imminent risk of harm that necessitates the removal of a child, the agency must determine whether or not it will pursue the matter further. In some instances, the Division can determine from the information gathered to date that no abuse or neglect has occurred or is likely to occur based upon the current level of risk to the child. In these instances, the agency may choose to close its investigation with a determination and no further involvement with the family – despite its non-compliance with the Administrative Code requirement that it speak to the accused parent. My experience has been that this is rare.

Conversely, if the parent refuses to be interviewed, the Division may elect to take one of several actions – all of which are undesirable. The Division may determine that the potential risk to the child cannot be determined, absent an interview with the parent. If that is the case, the agency may elect to seek removal of the child until such time as risk can be assessed. The Division may also file an action in Superior Court to compel a parent to cooperate with its investigation. A court will typically compel the parent to be interviewed, absent some compelling reason such as the pendency of a criminal investigation or prosecution.

The determination of when a parent should submit or refuse to submit to an interview with the agency is very fact-specific. The nature of the allegations, parent’s knowledge of the child’s statement(s) if any to the agency, the parent’s relationship with the other parent of the child at issue, and most importantly, the county office investigating and the judge in the county hearing DYFS/DCPP matters.

If a parent is contacted by the agency and an interview is requested, the parent should ask for the opportunity to consult with counsel. In such instances, Allison C. Williams, Esq. can consult with the parent to determine the best course of action, which may include an interview in the presence of counsel or a refusal to be interviewed. A parent should not simply refuse to be interviewed and hope for the best. This rarely works out for the best.