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.

When DCPP comes to Family Court


Not every family law case involving DCPP begins with DCPP filing a complaint against a parent. Many times, parents are involved in a dispute, an allegation of child abuse or neglect occurs and the agency becomes involved in investigating, although they have not yet decided to file a complaint. In these instances, it is not uncommon that the Family Court judge hearing the matter will simply order the parties to “cooperate with DCPP”. And by “cooperate”, the court usually means attend evaluations, cooperate in counseling or other “services” and other significant forms of relief that the division would otherwise have to seek by way of a formal complaint and adducing the appropriate proofs at trial.

Most family law practitioners, not wanting to upset the apple cart, simply agree to “cooperate with DCPP”, feeling that this will expedite their client’s return to a normal custody and parenting time arrangement. Unfortunately, this is not always the case.

Many times, the agency becomes involved to investigate, and being given carte blanche by the family court judge, choose to impose upon parents lengthy, overwhelming services that may or may not be necessary. But, since the agency is relieved of its responsibility to file a complaint and prove its case that the services are necessary, by virtue of the family court judge simply directing the parties to “cooperate with DCPP”, the agency can do whatever it wants.

So what has to be done when DCPP is investigating an allegation during the course of family court litigation? The first thing that the practitioner should be mindful of is noting to the court that were DCPP to file a complaint, it would have to prove its case by a preponderance of the evidence before services could be ordered by the court. Parents do not lose those statutory protections because DCPP is investigating without need of filing a complaint because a parent has already chosen to do so.

Second, practitioners should be mindful that the division determination that a certain service is necessary does not compel the result that that service must be provided by the state, in lieu of privately obtained services by the parents. So, for instance, if a parent is directed to participate in counseling, nothing prohibits the parent from seeking counseling through his or her private insurance. In fact, doing so often accelerates the creation of a true therapeutic doctor-patient relationship, as the parent is not weary that any and everything stated to this person will be reported back to the agency.

Finally, it is important that attorneys do not allow themselves to be bullied with a misplaced perception by the judge that a parent’s refusing to “cooperate with DCPP” has something to hide or is culpable of child abuse. Attorneys should offer themselves up as a shield for their clients. Let the court know that your client is more than willing to cooperate with the agency, but you are not willing to subject your client to division involvement absent asserting these protections for him or her, out of concern for your ability to advocate and protect their interests down the road.

Do not forget that Superior Court judges were once attorneys themselves. Even if they did not handle child abuse cases in their practice, they understand the concept of a lawyer’s need to protect his or her client. Assert that need to protect to shield your client from any adverse inferences from the failure to “cooperate”.

At the end of the day, your client may still desire to “cooperate” with DCPP. It maybe faster and accelerate reunification and:or resumption of normal parenting. As long as he or she understands the risks associated with this, that decision belongs to the client alone. But it needs to be an informed decision, and that is where parent attorneys are most vital to this process.

If you or someone you know is involved in a family court matter involving DCPP, please contact Paragano & Williams, LLC to schedule a consultation.

Child Abuse in New Jersey may soon be redefined


On March 11, 2013, the New Jersey Law Revision Commission issued its draft report and recommendations for changes to the two statutes in New Jersey that govern the law of child abuse and neglect – namely, Title 9 and Title 30. The public comment period is nearing conclusion.

For anyone who is interested in this area of law, it is vital that you review the Commission’s draft report. Many proposed changes will severely impact parental rights and metonymy in child welfare matters. Many of the current protections for parents will be eliminated, particularly a parent’s right to decline services pending resolution of a fact-finding hearing.

In addition, under the new law, only DCPP can file an action using the strictures of Title 9 to allege child abuse and neglect and seek protective orders. Presumably, that right will still be available in Family Court by other means; however, it is concerning that where DCPP investigates and sees no abuse or neglect, parents will lose the right to file a separate Title 9 action. Effectively, DCPP’s view of a family’s circumstances will be elevated beyond question, unless DCPP decides to file a court action.

Allison C. Williams, Esq., Chair of the DCPP subcommittee of the Family Law Executive Committee (FLEC) of the New Jersey State Bar Association (NJSBA), is working with James Colaprico, Esq., Chair of the Child Welfare Section of NJSBA to provide a comprehensive position opposing the most draconian provisions of the revised law, which aims to coalesce Title 9 and Title 30 into one comprehensive statute within Title 9.

For anyone who is interested, you may view the proposed revised law at:

http://www.lawrev.state.nj.us/children/t9childabuseandneglectDTR031113.pdf.

If you or someone you know is involved with DYFS/DCPP, and requires legal advice, please contact Paragano & Williams, LLC to schedule a consultation.

No More KLG based upon DCPP Lies … at least Not This One Particular Lie


In a published decision on June 11, 2013, the Appellate Division has explicitly prohibited trial Courts from ratifying the outright FALSE information given to resource parents by the Division of Child Protection and Permanency (“DCPP”) (formerly, the Division of Youth and Family Services (“DYFS”)). Specifically, in DYFS v. H.R. & N.B., the Appellate Division remanded to the trial Court the issue of alternatives to TPR (termination of parental rights) because the relative placement repeatedly testified that DCPP had told her in no uncertain terms that Kinship Legal Guardianship (KLG) was not available for her niece because the child was not 12 years of age.

The Court pointed out that this clearly erroneous 12-year benchmark was NOT included in the KLG statute. Further, once the trial Court became aware of the relatives’ misinformed perception that KLG was not available for a child under age 12, it had a duty to correct the misinformation.

What’s shocking about this decision is NOT the fact that DCPP lied to the resource parents. That happens all the time. Any attorney who does this work is likely familiar with the anecdotal tales of foster parents being told they MUST adopt or the children for whom they provide care will be yanked away by the Division. We hear, routinely, about the “12-year-old-rule” for KLG. No surprises there.

But when, exactly, is someone – ANYONE – going to address the fact that this very powerful government agency routinely lies to families involved with the child welfare system? This case provides evidence that, not only was the 12-year-old-rule offered up as gospel by the caseworker involved with this family, but she learned of it when she attended a foster parent class!

The Division LIE – “the 12-year-old-rule” was a part of its inculcation of foster parents… State-administered training courses premised upon a LIE by the State. And yet, while the Appellate Division correctly remanded the matter to be considered anew by the trial judge because of the patently inaccurate information provided by DCPP to the foster parent, the fact that an appeal was required in order to right this wrong is disturbing.

When, exactly, will trial Courts respond to outright lies by the Division with the same outrage engendered by lies told by litigants? Shouldn’t we, as a society, be able to rely upon the representations of those in power, those entrusted with protecting our most valuable asset – i.e., children? If anything, shouldn’t there be some sanction for the agency, which is already gifted with the benefit of a presumed “high degree of reliability” per the Cope decision?

When members of the defense bar routinely hear of patterns of practice by the Division that contravene statutes, case law, court rules, administrative regulations, AOC policies, court orders and other legal mandates, we must not shy away from unveiling these atrocities for the trial Court’s consideration. Hopefully, armed with the H.R. case, we now have strong precedent to urge trial Courts not to look past the manipulations of this agency.

One can only hope that trial Courts begin to see how rampant the Division’s lies are … and begin to do something about it.

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.

What is a Dodd Removal?


When DCPP, the Division of Child Protection and Permanency (formerly, DYFS, the Division of Youth and Family Services) investigates an allegation of child abuse or neglect, and uncovers what it believes to be “imminent risk of harm”, the Division may remove the children from the home immediately without a court order. N.J.S.A. 9:6-8.28. This removal is referred to as a “Dodd” removal, named after the legislator who sponsored the legislation giving the Division this right. Once a Dodd removal occurs, the Division must be before a judge seeking a court order ratifying the Dodd within two court days.

What constitutes “imminent risk of harm”? That varies from county to county, and frankly, from investigator to investigator. However, some general parameters include child sexual abuse where the alleged perpetrator is in the home; physical child abuse that would rise to the level of an “aggravating circumstance” that would relieve the Division of its obligation to make reasonable efforts to avoid placement; abandonment (i.e., child in the home with no caregiver), or acts of a similarly serious nature.

Unfortunately, the Division will, from time to time, act improvidently in removing children from their home. This may occur in circumstances where the parent has been voluntarily accepting services from the Division over a period of time, and the agency ultimately comes to the conclusion that it is tired of trying to work with the parents and feels court intervention must be imposed upon the family to effectuate the positive result sought.

It is also not unheard of that the agency will threaten to do a Dodd removal in order to scare parents into signing contracts with the agency, allowing unfettered access to a home, signing releases for medical or mental health information that is otherwise protected, and similar overreaching to accomplish what they otherwise could not.

Many times, parents will contact counsel after the fact and claim that they only signed agreements and authorized the release of confidential information upon threat of removal by the Division. Such tactics constitute a gross violation of the public trust and misuse of government authority. Unfortunately, my experience has been that judges are upset by improvident removals than by noncooperation by parents when the Division investigates. Therefore, one must not casually disregard the Division’s threats to remove children, even when the parent believes the agency could not ultimately prove “imminent risk of harm” in court.

If you or someone you know has been contacted by the Division seeking to investigate, before denying access and facing potential removal, contact Paragano and Williams, LLC for a consultation.

Defending DYFS/DCPP Cases: An Essential Primer


On Saturday, April 27, 2013, Allison C. Williams, Esq., Founder of NewJerseyDYFSdefense.com, will be presenting a Continuing Legal Education (CLE) seminar for the lawyers and judges of New Jersey. The topic: Parental Defense in DYFS/DCPP cases. The presentation will take place at the Crowne Plaza in Fairfield. To register for this CLE, visit www.njicle.com.

If you or someone you know is involved in litigation against the Division of Child Protection and Permanency, formerly known as the Division of Youth and Family Services, please contact Paragano & Williams, LLC for a consultation.

What a difference a year makes!


In litigation brought by the division of Child Protection and Permanency (DCPP)(formerly the Division of Youth and Family Services (DYFS)), one year is a very significant benchmark in the case. After one year in litigation, the court is required to conduct a permanency hearing and to approve a plan to achieve permanency for the child. That plan may include reunification with the parent, termination of parental rights followed by adoption, kinship legal guardianship with a relative, or one of three other alternatives. N.J.S.A. 9:6-8.50.

Though there is no statutory requirement for litigation to last one year, anecdotal experience from child welfare attorneys supports that this is typical. Various, however, a requirement for a permanency hearing within one year pursuant to the a
Adoption and Safe Families Act (ASFA).

Further, parent educational materials distributed in child welfare courts, provided by the Administrative Office of the Courts (AOC), that the case should be resolved with reunification, if possible, within one year.

But should we accept the de facto presumption that the litigation must last a year? Does having a one-year “benchmark” allow the agency to justify its delay in implementing necessary services to achieve reunification? Does having a one-year benchmark encourage the agency to talk on additional requested services for family over the course of that year, knowing that the practice typically includes a one-year period of litigation? And because it is exceedingly rare that a court will not grant the agency its request for additional services, what is lost, really, by requesting more and more and more of a parent because the agency has one year to play with?

It is a dirty little secret of child welfare agencies that services are often provided to families solely for the purpose of meeting the statutory requirement down the line to terminate parental rights. Now that ASFA requires concurrent planning, the agency cannot take this “over servicing” approach with only those families anticipated to have termination in their future; it adopts this approach for all families.

The consequence of this “standard operating procedure” is that many families are simply tortured by a one-year entitlement by the agency to control its life, rather than a strategic, directed approach to help families and end litigation. It is true that many families achieve reunification before the end of litigation, as a parent may seek return of the child at any time, which shall be granted unless there is evidence of harm to the child’s health, safety or welfare. See, N.J.S.A. 9:6-8.32(a). Yet, it is all too common that the division successfully opposes reunification upon the stated concern that a lapse of perfection upon reunification will only result in a subsequent removal.

This concern is not totally unwarranted. However, the one year benchmark is far too often used as a guillotine over families, rather than a tempered response to the circumstances presented to the court. Wow the benchmark appears to be here to stay, we should not accept that one year is a magic number that should guide most cases. Each case requires and deserves a case-by-case individual approach.

If you or someone you know is involved in child welfare litigation that appears to be dragging on needlessly, contact Paragano & Williams, LLC for assistance resolving your matter expeditiously.

Medically Fragile Children in DCPP/DYFS Custody


Children who are considered “special needs” that end up in resource care are required to be placed with special placement providers who are trained to provide a higher degree of care. These homes are referred to as “ships” placements. “Ships” is abbreviated as SHSP (Special Home Service Provider).

Children who are placed in SHSP’s homes are typically those with medical injuries that require more frequent medical attention than children in the same age category without such injuries. However, not every child who has some form of medical ailment or injury requires such a placement. For instance, a baby who was not yet ambulatory at the time of an injury that is now in a cast requires no higher degree of attention and care than any other baby, except that she must have her cast carefully cleaned, examined, et cetera.

The determination of whether a child requires a SHSPs home is an important one. If the child is placed in such a home, the parent will likely receive substantially less parenting time with the child, as relative placements are unlikely. With standard placements, relatives can be provisionally approved, subject to completing the foster parent training (i.e., referred to as the Pride training course). If a child is medically fragile, the placement must be a SHSPs foster placement, and the division and the court are less likely to approve a relative for placement, subject to subsequent training.

Of course, one must question why this is the case. After all, if a parent leaves the hospital with a child in a cast, with a medical problem, one requiring higher attention in the detailed medical instruction, that child is still released to his parents with instruction from his doctors. Yet, with foster placements, the state takes the position that some “high degree” of medical training is required in order to have placement of the child, no matter the degree of injury or ailment from which the child suffers. This is likely because parents are entitled to commit simple negligence when caring for their children, whereas the state is not. As such, the state is less likely to accept well-intentioned foster placements that do not meet their highest criteria for care if the child has already been physically injured, resulting in removal from the parents and placement in foster care.

It is important to look to the child’s specific injuries when evaluating whether or not a SHSP home is required. Many times, when such a placement is not required, exploring the basis for the placement can give helpful insights to the court when evaluating the case as a whole. Specifically, if the Division has reached the knee-jerk conclusion that it must have been the parent’s abuse that caused the child’s injuries, the division often takes draconian measures to ensure the parent is afforded as little contact with the child as possible while in placement. This often occurs by the Division’s insisting upon a SHSP’s placement when one is not required.

One way of uncovering such a tactic is by demanding a copy of the nurse’s notes that must be maintained for every SHSP’s placement. The division’s nurse is required to see the child weekly and make a detailed log of the child’s medical status, feeding schedule and care instructions administered by the resource parents in order to ensure that the child’s medical needs are being met in that placement. The parent is entitled to receive a copy of this nurse’s log upon request.

Rarely are these logs kept consistent with the training protocols and the requirements set forth in the administrative code. When these deficits are highlighted, the court will often grow weary of the division’s position as to the necessity of the placement, thereby calling into question the division’s position as to other issues in the case, including the parents’ culpability for the child’s injuries. One never knows what will be found until the information is sought and explored.

If you or someone you know has a child in placement that has been declared medically fragile when that designation appears unwarranted, please contact Paragano and Williams, LLC for assistance.

DYFS/DCPP’s marriage to Supervised Visitation


Ever notice how every case filed by the Division of Youth and Family Services (DYFS), n/k/a the Division of Child Protection and Permanency (DCPP) kicks off with a Complaint and a request for supervised visitation? Does anyone ever question the need for supervision at the initial filing? Of course not, you may be thinking. After all, why would DYFS (DCPP) be involved with the family if there was no need to monitor the actions of the alleged child abusers, right?

Sadly, the allegations made in these cases often come partnered with the assumption that parental supervision is required. But is that always true? What about the case where a father is accused to acts of domestic violence against a mother in the presence of a child but never any infliction of harm against a child? Presumably if the “harm” to that child is witnessing domestic violence, how likely is that harm to reoccur if the parents are not together when in the presence of the child?

And what about cases in which a parent has a substance abuse problem, but the parent’s relatives all confirm that she has never used or abused substances in the presence of the children? Can that parent really not be trusted to have unsupervised dinner visits with the children, especially if she must blow into a breathing device installed on her vehicle to confirm she is “dry” before operating it?

How about the case where a step-parent is accused of being unduly harsh toward a step-child but no such allegation exists as to his natural children? Can he really not be trusted to be alone with his children against whom there is no allegation?

Unfortunately, the DYFS/DCPP “script” is to request supervision; however, the Division’s Field Operations Manual clearly provides that visitation is to be LEAST RESTRICTIVE option available to ensure child safety, and where supervision is requested, the rationale for the request must be set forth with specificity. DYFS rarely goes “off script”, and as a result, Superior Court judges rarely go “off script”.

But placing the impediment of plastic, short-term parental restriction upon a parent who is already being overwhelmed by the panoply of testimony, evaluations, monitoring and worse, usually does more harm than good in the “altruistic” world of social work. It creates barriers to collaboration between the State and the parent to remedy the harm alleged to impair parenting. And, isn’t that why the action is being filed in the first place?

As defense counsel, it is our job to argue against supervision. Never concede that supervised visitation is warranted on the facts presented. Be creative in fashioning the “least restrictive” alternative. Stop assuming that the Division will prevail in its quest for supervision, and perhaps, one day, it will not.