Category Archives: Legal Standards

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.

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.

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.

DCPP Segway into Custody Litigation


In New Jersey, as in most jurisdictions, the court must consider whether or not a child would be subjected to abuse or neglect in the care of any parent seeking legal and physical custody of the child. Consequently, the outcome of an abuse or neglect case brought by DCPP can be very significant for custody litigation. When a parent has been found by the agency or a court to have abused or neglected child, however, that finding is not dispositive of the custody issue.

Here are a few points to consider when contesting custody, after a finding of abuse or neglect has been made:

1. An agency finding without court intervention can, and often does, indicate an isolated incident that is of no further concern to the agency. Pursue an administrative appeal, if for no other reason than to alert the custody court that you contest the agency finding.

2. The court finding often occurs long after the problem has been remediated. Many times an allegation of abuse and neglect does not reach a fact-finding stage for many months, even a year, into the case. By that time, services have been offered to the family and the problem has resolved.

3. If abuse or neglect allegations arise during the pendency of a custody case, parents’ financial resources often limit them to litigate in only one forum. The parent may stipulate in order to get rid of the agency case and invest resources in the custody case.

Further, the agency is often more willing to be lax in its involvement with the family if the parent stipulates to expedite the process. However distasteful that may be, the reality should be addressed with the custody court so as not to prejudice a litigant seeking custody.

4. The broad, amorphus definition of neglect often makes less-than-perfect parental behavior a violation of law. Many times, parents can persuade the agency to change its finding if the facts of a contentious divorce are fleshed out in a custody case while the abuse and neglect case is ongoing.

5. Sometimes, both parents have engaged in some form of abuse and neglect; however, only one parent is accused and has a finding made against him. That does not prevent the other parent from filing his own Title 9 complaint or raising allegations of abuse or neglect in the custody case. The fact that the agency did not accuse the adverse party of abuse or neglect does not negate its existence.

In sum, do not assume that a finding by DCPP ends the custody case. Many times, it is merely an unfortunate blip on the radar screen that must be explained through custody and parenting time evaluations, custody mediation and trial.

For more information, please feel free to contact us and schedule a consultation.

A Father Wrongfully Accused of Rape on the Katie Couric Show


Thomas Kennedy, a father wrongfully accused of raping his daughter, tells his tragic tale on the Katie Couric Show. Thomas, a recovering alcoholic, neglected time with his daughters before he became sober. Unfortunately, post-divorce, his daughter was seeking attention, calling out for help, and this was her plea.

Because Thomas is a recovering alcoholic, Katie Couric asked the question if there was any possibility that he did something – anything – and did not recall it. Thomas maintains that this was impossible, as he never drank when he had custody or care of the children. Apparently, years after the wrongful conviction, the child came forward and recanted the allegation.

The only evidence against Thomas was his daughter’s accusation. In New Jersey, in order for DYFS (child welfare authorities) to rely upon the child’s hearsay statements of abuse, there must be corroboration. N.J.S.A. 9:6-8.46(a)(4). But, in Thomas’ case, his daughter took the witness stand, pointed to him and testified that he raped her.

And, sadly, many people ask the very question that Katie Couric posed to Thomas – why would a child tell such a heinous lie? That natural inclination to wonder makes overcoming such allegations particularly difficult.

Here at http://NewJerseyDYFSDefense.com, we can help parents wrongfully accused of child abuse, including child sexual abuse.

Spanking + Accidental Injury = Child Abuse


When parents ask, “Is it ‘child abuse’ to spank my child”, the answer on paper is no. New Jersey prohibits “excessive” corporal punishment, thereby clearly permitting corporal punishment that is not excessive. See, N.J.S.A. 9:6-8.21(c); N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510-11 (App. Div. 2010).

However, the Appellate Division’s interpretations of the K.A. case, the first published opinion to provide a framework to evaluate conduct and consequences that will render corporal punishment to be “excessive”, clearly show that our courts have little to no tolerance for parents who accidentally “injure” a child during the course of a spanking. The most recent unreported decision that demonstrates this point is New Jersey Division of Youth and Family Services v. R.S., A-0074-11T4 (OAL Docket No. AHU 09-1698).

In R.S., the grandmother of a five year old child spanked him on the behind and legs with a belt due to the child’s aggressive behavior toward his teacher. During the course of the spanking, the child squirmed and the belt accidentally hit the child in the face, causing a mark. The Appellate Division concurred with DYFS that this constitutes child abuse, calling the spanking “willful and wanton” misconduct, i.e., reckless.

What made this spanking “reckless”, rather than merely “negligent”? The grandmother should have foreseen that the child would attempt to evade the spanking because he had recently gotten into trouble at school for running away from his teacher. Applying this standard, any child who does not passively and peacefully accept a spanking – i.e., the children who likely need the discipline the most – cannot be spanked absent a finding that the “perpetrator” was “reckless” for using this form of discipline.

The Appellate Division also considers the use of the belt to be of significance. In K.A., the mother balled up her fist and punched her child repeatedly in anger and frustration. This form of discipline was merely “negligent” because it did not cause a visible mark and was considered an “ill-conceived impulse”. Yet, a grandparent who makes a conscious decision to obtain a belt and administer discipline is said to have assaulted the child.

The age of the child was also a distinguishing factor. In K.A., the child was age 8. The Appellate court in R.S. also mentions the P.W.R. case involving a slap in the face of a 16 year old stepchild. Apparently, one should anticipate that a 5 year old will seek to avoid discipline – i.e., squirm when spanked – but that same expectation does not attend to a rebellious teenager.

Perhaps the ruling in K.A. would have been different had the mother taken time to obtain a belt to spank the child on the legs – a clear no-no – rather than simply exploding with multiple punches to the shoulder – a area much closer to the child’s face, the area of concern in this R.S. case.

I speak somewhat tounge-in-cheek to illustrate this point. In reality, spanking occurs in households across New Jersey. What distinguishes one spanking from another when determining if corporal punishment is “excessive” varies from case to case, but generally, these guidelines apply:

1. If you spank, better to use a hand than an object.

2. Spanking is better left to severe mis-behavior – not your run-of-the-mill unruliness, lack of respect, non-compliance or impulsivity seen in children.

3. Try NEVER to leave a mark, bruise, cut, welt, depression, or redness – no matter how faint, no matter how inadvertently caused, no matter where located.

4. If ANY mark is left, better left on lower extremities than near the face.

5. If the child is seen for medical treatment — even if only when sought by DYFS — the child’s report of pain will be considered an additional harm in and of itself.

(This is akin to a judge relying upon a child’s report of feeling “sad” when they overhear parents’ arguing to support a finding that the child’s emotional state is “impaired” by parental conduct. Any discomfort or unpleasantness experienced by a child can and will be used against the parent to bolster a finding of abuse.)

So, the best advice for parents in New Jersey is simply do not spank… or if you do, make sure no marks can prove than you did.

Life (and the law) would be much clearer if the New Jersey legislature would enact legislation banning spanking. Whether we agree with that policy or not, it would provide parents with clarity in terms of what can and cannot be done to modify children’s behavior – rather than causing our judiciary to impute far-reaching assumptions to parents (e.g., that a child will squirm and likely be hit with a belt in his face rather than his legs because he once ran away from a teacher when being disciplined) as a means to qualifying their conduct as “reckless” rather than merely “negligent”.

Mandatory Reporting of Child Neglect may Open the Floodgates


A medical malpractice case published on November 16, 2012, provides us with a new standard – and clear requirements – for reporting child abuse and neglect. In

    L.A. v. New Jersey Div. of Youth and Fam. Svcs, Jersey Shore Medical Center, Dr. Yu, et. al.

, the Appellate Division interpreted the mandatory reporting provisions of Title 9, specifically N.J.S.A. 9:6-8.10, which provides: “[a]ny person having reasonable cause to believe that a child has been subjected to child abuse, or acts of child abuse, shall report the same immediately to [DYFS]”.

In L.A., a physician was sued for medical malpractice because of his failure to report to DYFS a child’s treatment in the Emergency Room. The child ingested cologne and was found to have a blood alcohol content of .035. There was no allegation or concern that this ingestion was intentional or a purposeful act of her caregivers. But, rather, concern arose over whether or not the child had been the subject of inadequate supervision or some other form of negligent conduct. In the child welfare conduct, “negligence” is defined as willful and wanton misconduct – i.e., the recklessness standard. This physician asserted that he had no concern for physical abuse, and therefore, no duty to report to DYFS.

The Appellate Division disagreed. In interpreting the mandatory reporting provisions of Title 9, the Court remanded the case to the trial court for a jury trial on the issue of whether or not the physician breached his duty of care and committed medical malpractice by failing to report negligence (i.e., recklessness) to DYFS. Ultimately, this ruling is consonant with the rubric of analysis in child welfare cases – child abuse and neglect endangers child safety, and therefore, should be addressed through the procedures established by law. However, L.A. raises the series of concerns for New Jersey families.

First, the Appellate Division notes that the mandatory reporting is no longer just for medical professionals, but for “any person”. Since L.A. requires reporting of negligent conduct for physicians, that mandate also applies for “any person” who becomes aware of negligence.

Second, the L.A. Court held that the reporting requirement is not triggered by “mere suspicions”. However, little more than that is required:

[T]he triggering of the obligation to report, especially in the context of civil litigation involving professional malpractice, does not require the potential reporter to possess the quantum of proof necessary for an administrative or judicial finding of abuse or neglect. All that is required by N.J.S.A. 9:6-8.10 is “reasonable cause to believe.”

How exactly are citizens in this State to know when they have “reasonable cause to believe” that a child has been subjected to “negligence”? Our case law defines negligence in child welfare as recklessness, and the distinction between mere negligence and gross negligence is fact sensitive. Even among our courts, there is no agreement. Each case turns on its facts. When in doubt, individuals are more likely to report than not to – especially since the L.A. Court made a point of noting that “[f]ailure to report as required by N.J.S.A. 9:6-8.10 is a disorderly persons offense punishable by incarceration for up to six months. N.J.S.A. 9:6-8.14, 2C:43-8.”

For certain, the L.A. Court was chagrin to learn that a physician did not so much as inquire as to how a 2 year old child accessed and ingested this potentially lethal, noxious substance. The Court has given real teeth to the mandatory reporting requirements for all citizens. However, the absence of any real teeth on the other side of the reporting spectrum – i.e., the knowing reporting of false allegations that lead to DYFS involvement – causes me great concern that the agency will continue to be the recipient of CYA-reporting, over-reacting in its highest form due to a well-intentioned, but perhaps slightly over-broad ruling.