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.

Use of Child Interviews in DCPP Cases

In Family Court, children are often witnesses to matters before the Court.  Children may witness domestic violence between their parents.  They may provide exculpatory information to refute allegations of adultery or neglect.  In such cases, trial Courts usually shy away from placing children on the witness stand in open Court and instead conduct child interviews in the judge’s chambers, where the child’s testimony is critical.  The prevailing view is that method of information testing protects children.

In cases brought by the Division of Child Protection and Permanency (DCPP, formerly DYFS), the child is the subject of the action.  The child is person alleged to be in need of protection. So, courts go above and beyond — not only to ensure the child is subjected to in-court testimony, but also to avoid any child testimony, including child interviews.  In DCPP cases, children’s hearsay statements of abuse may be admitted into evidence; however, no such statement is sufficient to make a finding of abuse absent corroboration. N.J.S.A. 9:6-8.46(a)(4).  Despite this broad exception to the hearsay rule, the Court must still find “credible, corroborative evidence” as a precondition to admissibility of the statement.  New Jersey Division of Youth and Family Services v. L.A., 357 N.J.Super. 155, 167 (App.Div.2003).

Anecdotal experience finds that judges in DCPP matters often prefer to admit the child’s statements of abuse in lieu of live testimony.  But what happens when there is no corroboration for the child’s statements, rendering them inadmissible?  The Division may still choose to proceed, in which case the child’s testimony is required.  Trial judges, many of whom were litigators before they were elevated to the bench, are often adept at handling direct examination.

But what about cross examination?  What happens when defense counsel desires to confront a child witness with inconsistent statements?  What happens if the trial judge does not “confront” the child, but rather, gingerly explores the topic with the child?  Is not cross examination the best device we have in an adversarial system for unearthing the truth?  What becomes of that adversarial system when a trial judge refuses to become adversarial with a witness, and hence, defense counsel is deprived of the most effective means of challenging the child’s statements?

What about the element of surprise?  With a witness on the witness stand, defense counsel can confront the witness with pictures, recordings, written statements – anything likely to call into question the witness’s credibility.  A witness’s credibility is always at issue when he or she testifies; therefore, the New Jersey Rules of Evidence contemplate allowing broad latitude to counsel when exploring the witness’s truthfulness.  N.J.R.E. 611(b).  A party may introduce extrinsic evidence relevant to credibility, whether or not that extrinsic evidence bears upon the subject matter of the action. State v. Johnson, 216 N.J. Super. 588, 603 (App. Div. 1987). What happens when defense counsel is deprived of the element of surprise, inasmuch as she must present the information to the trial judge (and opposing counsel) in advance, rather than during live testimony?  Certainly, that takes some of the momentum out of the questioning.

There are no easy answers to these questions.  But, raise these questions (and more) when presenting questions to the trial judge to be asked of the witness.  R. 5:8-6 affords counsel the right to pose questions to be asked of the child by the trial judge.  Use the presentment of questions as your opportunity to educate the judge about the inconsistencies.  Just as there are times when attorneys ask marginally appropriate questions of witnesses moreso to elicit a reaction than to obtain the answer to the question – so, too, should counsel use every opportunity to present questions to inform the Court of weaknesses in the Division’s case.

If you or someone you know is involved in a child welfare (DCPP) matter, contact Paragano & Williams, 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.

Check Out our New Page: When Family Court meets DCPP Court!

This page contains an article published in the New Jersey Family Lawyer by Allison C. Williams, Esq., exploring the many ways that discrepant rules in child welfare matters – those rules applicable when DCPP files a case, verses those rules applicable when a parent, guardian or other concerned person files a case – can dramatically alter the outcome, and not in a manner that promotes child safety consistently across the Family Part.

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:


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 DCPP Agenda behind Services

In every case brought by the Division of Child Protection and Permanency (DCPP), the Division seeks an Order compelling the parent(s) to engage in services to address the issues that necessitated the Division’s involvement. These “services” range from psychological evaluations to substance abuse treatment to marital counseling. But, the one common denominator in all “services” is the Division’s insistence that the services be secured by the Division with its contracted providers and not privately retained by the parent.

Does one ever stop to question why? If a parent has a need for domestic violence counseling, is there some legitimate reason why New Jersey tax dollars are required to fund a 26-week course, in lieu of the parent’s resources paying for the counseling through her private insurance? Is it that the state wants the parent to jump through the hoops of attending a course once a week, at a pre-set time, with others, to atone for the sins of victim-hood in interpersonal relationship? Or perhaps it is because the division can rely upon a course it has approved, but has some trepidation about relying upon a professional with whom the Division is not familiar?

Perhaps. But, I would suggest there is another reason. However much the judiciary resists this truism, the Division is NOT a disinterested third party solely interested in the best interests of children. The Division is a government agency. A bureaucracy. It functions on red tape. Thrives on inefficiency. And succeeds on ensuring that everyone follows the rules, obeys the commands, sticks with the agenda, and makes sure the agency does not get sued for screwing up.

Not screwing up is good, right? Wrong. When one is motivated by not screwing up, the highest success ever to be achieved is blind adherence to rote instructions. That means, if 1 + 2 = 3, always, universally, because that’s the rule, when 1.1 comes along, and there’s no formula to determine how to reach 3, the universality of the 1+2=3 rule becomes the default. So, 1.1 becomes 1 because it is easier to get to 3 by adding 2, rather than do the math Dan subtract 1.1 from 3.

The net result becomes a gross oversimplification of complex problems or, alternatively, an exaggerated over-response to the simplicity of human interactions. That is the reason why it becomes easier to require a psychological evaluation in EVERY case, rather than say that in cases where a parent has already been evaluated by a credentialed psychologist other than one paid by the Division, there is no need to replicate the evaluation; we can simply implement the recommended treatment.

That is the reason why it is easier to say EVERY parent is limited to supervised visitation in the Division office, rather than question the need for a parent to have supervision where the alleged harm to the child was medical neglect, and the medical condition allegedly neglected no longer exists!

It is easier to follow simple rules (e.g., child in foster care = no phone access to parents) than it is to THINK and tailor decisions to the needs of the child, the parent and the circumstances. Consequently, the agency functions best when its employees obey. That ensures they keep their jobs. And THAT is what governs when alleged child abuse or neglect is investigated and treated. Once these motivations are questioned, one realizes that the agency is NOT merely a disinterested third party out to save the children. Underneath every decision is a motivation. Beyond every service is a checklist that ensures that the requested service is offered to promote many objectives, which may include child protection, but which may – and likely does – include job security by e obedient box-checker.

The sooner this reality is acknowledged by those in positions of power, the sooner “services” can be out into their proper context.

If you or someone you know is involved with the Division of Child Protection and Permanency, 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.

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.

New Jersey DYFS Defense is Changing with the Times!

Hi Everyone!  For the past few years, NewJerseyDYFSdefense.com has provided top-quality information, insights and perspectives on the topic of child abuse and neglect and the agency entrusted with investigating same.  Until February 29, 2013, that agency was most commonly known as DYFS – the Division of Youth and Family Services.  However, with an overhaul of agency protocol and procedure came a new name.  Now, DYFS is known as DCPP – the Division of Child Protection and Permanency.  

Though we are loathe to accept that the agency in our state entrusted with investigating often quite serious allegations such as child sexual abuse is referred to as “PP”, it is with much chagrin that we accept it.  And so, today, NewJerseyDYFSDefense will now be known as NewJerseyDCPPdefense.  We will function as we always have — to provide our perspective on how the child welfare systems works (and fails to work) for the families in this state.  We will continue to provide commentary and to refrain from giving legal advice.

And most importantly, we will continue to respond to your thoughts, concerns and questions by publishing content designed to enlighten our constituents about Child Welfare law, procedure and policy.

Stay tuned for more great content.

If you or someone you know is involved with the child welfare agency, DCPP, please contact Paragano & Williams, LLC, for a consultation.