Tag Archives: abuse

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.

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.

Impact upon Siblings of False Child Sexual Abuse Allegations


Thomas Kennedy, a father wrongfully accused of raping his then 11 year old daughter, Cassandra, was convicted but eventually freed when the child came forward with the truth. Cassandra’s sister appeared with Thomas and Cassandra to discuss the implications for this family trauma on the Katie Couric show.

The siblings often suffer as a result of the child sexual abuse disclosure – whether it is truthful or not. The sibling is often placed in therapy to deal with the loss of the accused parent and to help support the victim child. But what of those cases when the accused parent is not guilty? In those circumstances where therapy is required for the sibling who does not believe the abuse, the forcing of therapy can be harm in and of itself. No matter how well-intentioned the professionals involved, the sibling’s resistance to believing that abuse occurred often prolongs the therapy required of them.

These difficult issues often plague the child welfare system. Therapeutic intervention occurs within the context of litigation. If you or someone you know requires help with these issues in child welfare litigation, please contact us at http://NewJerseyDYFSdefense.com.

Happy Thanksgiving to the Families of New Jersey!


This time of year is fraught with sadness for so many people – particularly those children and families that are kept from their loved ones due to allegations of abuse or neglect. When abuse has been substantiated, families are kept apart to ensure safety of children. However, when abuse is only suspected, the separation of children from their families is all the more troubling and tragic.

The Division of Youth and Family Services (“DYFS”), n/k/a the Division of Child Protection and Permanency (“DCPP”) – like many other partiers involved in family court litigation – is usually taxed with requests for holiday parenting time at this time of the year. Last minute requests for increased parenting time, approval of additional supervisors, overnight access to allow all family members to attend gatherings out of state, present in droves.

To increase the likelihood that your family may enjoy time together at the holidays, during the pendency of a DYFS/DCPP matter, here are a few suggestions:

1. Aim to address holiday parenting time requests at least 4 to 6 weeks in advance of the holiday.

2. Identify as many family members and friends to the agency that may be evaluated and approved to supervise parenting time. A person who may be ineligible for placement (e.g., because of inadequate shelter) may be approved to serve as a supervisor at a holiday party.

3. Remember that not every parent requires supervision. The Division almost universally requests supervised parenting time for parents accused of any form of abuse or neglect. However, the agency and the court must identify a basis for supervision, and absent same, visitation is to be unsupervised.

If the allegation is medical neglect of a child, what risk can be identified from the alleged neglectful parent spending time in the presence of the child at a holiday event, when someone else in the family would be responsible for the child’s medical needs if any? Do not be afraid to make the argument.

4. Supervised overnight parenting time is not impossible to accomplish while ensuring safety for the child. If the accused parent has a substance abuse problem, how likely is it that the parent will abstain from substances while supervised until the child’s bedtime, but then, while the child is asleep, abuse substances and place the child at risk? Not very.

5. Expansion of parenting time at the holidays is very common. Seek the support of agencies that will supervise parenting time for a fee. These agencies may not be available on the holiday, but may be available a day or two afterward.

Celebration can occur at any time. Arrange supervised visits for the day before or after the holiday. Many agencies will supervise visitation off site, traveling with the parent to public places for parenting time.

These tips are not designed to constitute legal advice. For information about how you and your family can be together for holiday parenting time while your DYFS case is ongoing, please contact Allison C. Williams, Esq. and schedule a consultation.

DYFS Lawyer: All Lawyers are not Created Equal


When a parent is accused of abuse or neglect, or faces the most severe life consequence of termination of parental rights, a lawyer with expertise in the field of child welfare law is vital to parent defense. Many lawyers advertise that they are capable of adeptly handling a DYFS matter. Some are correct. Unfortunately, many more are not.

DYFS litigation is imbued with complexities that transcend basic family law. This area of litigation requires an intimate familiarity with agency law and procedure, Superior Court law and procedure, and the intersection of the two. It requires an understanding of social work, psychology, psychiatry, mental health generally and medical conditions. It requires an understanding of the Rules of Court and Rules of Evidence, many of which differ from those applicable to matrimonial and family law. It requires an intimate familiarity with two key statutes defining abuse, neglect and parental unfitness, and their subparts. Few attorneys have this familiarity.

Many parents seek out an attorney who is skilled in the field of family law. One way of determining if a practitioner is skilled in family law is by seeking those who have been Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney. While these practitioners are deemed competent in the field of family law, they are not necessarily so in the field of Child welfare law. To become certified, one must pass an examination created by the Board on Attorney Certification. This examination does not include any material covering child welfare law topics.

Choosing an attorney is an important step in the reunification and sustenance of families involved in the child welfare system. Parents should be careful not to choose a lawyer simply because they are a skilled family law practitioner or, even worse, simply because they advertise that they are a “DYFS Lawyer“.

If a parent is seeking representation by an attorney with the skills, reputation and knowledge needed to help adeptly navigate the child welfare system, please contact Allison C. Williams, Esq. for a consultation.

Non-Offending Parents in Sex Abuse Cases


NewJerseyDYFSdefense.com received an inquiry regarding the Division’s hostility toward non-offending parents in sexual abuse cases. Allison C. Williams, Esq. responded to this inquiry, and since then, we have received very favorable responses to that Reply in Comments. For that reason, we have decided to republish that post here.

Counsel is involved in a matter involving alleged sexual abuse by the Father wherein the Mother believes in his innocence in a northern county. She represents the non-offending parent who firmly believes her husband’s innocence. The following suggestions are made for such circumstances:

1. The non-offending parent should compile a list of reasons why s/he believes his/her spouse. The reasons should focus upon the parent-child relationship with the non-offending spouse — not the spousal relationship. Focusing on the latter will likely draw complaint that the non-offending parent prioritizes the spouse over the child.

2. The psychological community acknowledges that a parent can disbelieve that abuse has occurred, and yet, still be supportive of the child who believes she has been abused. Cite to this research every time the matter is listed in court. Such information from Learned Treatises offers material and relevant evidence to the court for dispositional purposes.

3. Minimize the public appearance of support got the alleged offending parent by the non-offending parent. The image of wife supporting husband contradicts the position that wife supports his accuser (i.e.., the child) – no matter what the psychological community has to say about the two roles being compatible.

4. Obtain private therapy for the non-offending parent. Do NOT allow the Division access to this professional unless and until there is a finding, and only then, after the consequences of such finding have been addressed in court. Keep that safe space for the non-offending parent to express fear, concern, anxiety and yes, even doubt, without fear of jeopardizing the accused parent’s defense, the child’s sense of security or the marital relationship.

These tips are not intended to constitute legal advice. If you would like to discuss your matter further, please contact me at our office and schedule a consultation with Allison C. Williams, Esq.

Substance Abuse Evaluations by DCPP/DYFS


When the Division of Child Protection and Permanency (DCPP), f/k/a the Division of Youth and Family Services, (DYFS) receives an allegation of abuse or neglect stemming from the use or abuse of alcohol or drugs (legal or illegal), often the accused parent is asked to submit to a substance abuse evaluation. This process entails meeting with a Licensed Clinical Alcohol and Drug Counselor (LCADC) and taking a series of quantitative tests (yes/no; true/false; scale from 1 to 10; etc.) designed to evaluate potentially riskful behaviors involved in substance use.

Parents are often loathe to submit to any form of evaluation by the Division for fear that the agency’s bias in referring the parent for evaluation will taint the evaluator and result in an unfair assessment. This fear has much greater validity when the evaluation being proposed is a psychological evaluation, rather than a substance abuse evaluation.

The reason is that addiction is succinctly defined as compulsive behavior that continues in the face of adverse consequences. The answers to the substance abuse evaluation determine the risk; whereas, in psychological evaluations, there is a higher degree of subjectivity involved in interpreting the results of the quantitative tests.

If asked to submit to a Substance Abuse Evaluation, defense counsel may limit a parent’s exposure by implementing these practice pointers:

1. Ask that the evaluation not be used in the Fact Finding hearing.

Alcohol or drug addition is not, per se, child abuse. Div. of Youth and Fam. Svcs. v. V.T., 423 N.J.Super. 320 (App.Div.2011). Thus, the existence of an addiction is arguably not probative of whether or not such condition harmed a child on a specific occasion.

2. If the parent submits to evaluation and subsequently engages in treatment, that treatment should not be used in the Fact Finding hearing as evidence that an addiction existed.

Evidence in Fact Finding hearings must be “competent, material and relevant”. N.J.S.A. 9:6-8.46(c). That means, the Rules of Evidence apply. N.J.R.E. 407 prohibits the use of corrective action to prove the condition corrected.

“[E]vidence of remedial measures is excluded not because it lacks relevancy, but because admission of said testimony might discourage corrective action and induce perpetuation of the damage and condition that gave rise to the lawsuit.” Hansson v. Catalytic Constr. Co., 43 N.J.Super. at 29. That principle applies equally in child welfare cases, as it does in negligence cases.

3. Stipulating to the existence of an addiction obviates the need for cumulative evidence, such as the substance abuse evaluation, to prove that fact. See, N.J.R.E. 101(a)(4).

4. Even if a Substance Abuse Evaluation and/or treatment compliance comes into evidence, the focus for the Court must be directed to the risks inherent in the situation and whether a child has suffered harm or is likely to suffer future harm.

Where unintentional conduct (i.e., neglect) is alleged, the Division maintains the burden of proof to demonstrate the probability of present or future harm. New Jersey Div. of Youth & Fam. Svcs. v. S.S., 372 N.J.Super. 13 (App.Div.2004). Neglect cannot be founded on assumptions and suppositions.

These pointers are not designed to provide legal advice. For more information, please contact Allison C. Williams, Esq. and schedule a Consultation.

Abuse and Neglect: Do we have the correct “Burden” of Proof?


On July 20, 2012, the Appellate Division affirmed a trial court finding of abuse and neglect in a case where a father handled a three-month-old baby so roughly as to break his collarbone and cause various fractures. (DYFS v. J.F.) At the end of the decision, the court held that the “preponderance” standard is the appropriate standard for a abuse and neglect matters. But is it?

The rationale for using our judicial system’s lowest burden of proof in abuse and neglect matters is to err on the side of caution where protection of children is at issue. Yet, in DYFS v. J.Y., our court recognized the severe impingement upon family life resulting from a finding of abuse and neglect. Where parental rights are at stake, shouldn’t our judicial system require proof of abuse or neglect by a clear and convincing standard?

The J.F. court thought the lowest burden of proof was appropriate because of the subject matter – i.e., protecting children. After all, the preponderance standard, i.e., the “more likely than not”/50.1 % rule, is most likely to result in false positives. But we bear that risk in the name of “protecting children”. The court found it more protective of children to have Child abuse over-diagnosed then under-diagnosed. Yet, by the time the court system gets to a fact-finding hearing where the ultimate issue of abuse or neglect is determined, the children have already been “protected” by DYFS intrusion for the better part of a year! In fact, in J.F., by the time the case involving sophisticated medical science (rib fractures) was presented at trial, the parents had already completed all services DYFS requested and were immediately reunified with the children, even after the court found the children “abused” at trial.

In this circumstance, can one really suggest that the banging of the gavel and declaration of the children as being “abused” truly offered protection? Or, was the true “protection” in the court’s initial assumption that DYFS was correct, as is done at the initial filing, whether DYFS ultimately proves its case or not?

The J.F. case evidences the fallacy of our child welfare system – i.e., that branding parents as having committed an act of abuse or neglect and sticking the parent’s name on the DCF registry somehow “protects” children.

Yet, at the end of day, it is still the division’s imperative to assign parents the label of child abusers and stick their name on this registry, file litigation immediately severing or severely restricting parental access, for months on end, leaving parents to eventually fight the good fight all in the name of “child protection”. But does giving the parents that label do anything other then demonize often accidental behavior, under the guise of “child protection”? This fallacy undergirds many Appellate Division decisions reversing findings of abuse or neglect where the sole “benefit” of having the finding is “protecting” children who were long-ago return to their parents before a trial ever occurs.

Is this fallacy of child protection really how we want our child welfare system to operate?

How much “caution” is Enough for DYFS?


“Every failure to perform a cautionary act is not abuse or neglect. When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute.” This principle, first established in DYFS v. T.B., recently formed the basis of a reversal of a neglect finding by DYFS in DYFS v. M.D.

In M.D., a 4 year old reported to her mom that her 12 year old brother touched her and their 7 year old brother in a sexual manner. Mom immediately contacted a child psychologist, involved DYFS and, at the behest of DYFS, notified the Prosecutor’s Office. In response, DYFS and mom entered into a Safety Plan whereby the 12 year old would not be unsupervised with his siblings. The 12 year old began therapy.

After months of therapy, the therapist suggested that the 12 year old be granted gradual increases in unsupervised time, conditioned upon his adherence to rules governing his conduct. On one such occasion, mom found the 12 year old in a state of undress with his siblings. Mom notified DYFS. To thank her for her candor, DYFS substantiated child neglect. After a trial, an Administrative Law Judge agreed with DYFS that mom’s conduct constituted neglect. The Appellate Division, correctly, reversed, citing the “cautionary act” language of T.B.

Change the facts of this scenario somewhat: What if mom had refused to “turn in” her 12 year old to be criminally prosecuted? In all likelihood, DYFS would have substantiated Mom for neglect at that point. Would that substantiation have been upheld? What if mom had placed the 12 year old in therapy, despite not handing him over to be prosecuted? Would that “cautionary act” have sufficed to negate a substantiated finding?

In M.D., mom followed DYFS’s rules – i.e., turning in her 12 year old to be prosecuted and not allowing him to be unsupervised with his siblings – to the tee. No matter how arduous this requirement – to make a parent offer up her preteen to the criminal justice system – mom complied. Yet, once mom followed the instruction of a mental health professional to loosen the reigns on her 12 year old … and told DYFS about it, she was penalized.

How absurd a result! But, it does make one wonder: How many parents are substantiated for nothing more than failure to follow DYFS’s orders? Who trumps – the bureaucrats running DYFS or the treating professionals working with the family? At least in this case, the Appellate Division chose the latter.

Divided Loyalties NOT Allowed by DYFS


In DYFS v. E.R., the Appellate Division upheld a finding of neglect against a parent who violated a DYFS case plan by repeatedly exposing her daughter to the mother’s boyfriend’s unwanted sexual advances. In so holding, the Court held:

Defendant’s misconduct lies in her steadfast loyalty to her paramour while ignoring her legal responsibility to protect her daughter from his unwelcome and inappropriate sexual advances.

In essence, the mother was found culpable for NOT believing her child’s allegations. But, would the result have been the same if the mother had failed to believe her daughter’s allegations against her husband, rather than her boyfriend? And what if the daughter had been prone to acting out whenever mom commenced a new relationship? Is this a case of DYFS imputing to the parent the knowledge of when abuse claims are substantiated and should be believed? And what of those cases where DYFS substantiates abuse, then later changes the finding? If DYFS can change its mind, why cannot the parent?

The answer lies in the intricacies of each case. By and large, DYFS and the Superior Court have little to no tolerance for parents who place their individual need for a partner above their child’s need to live in an environment free from physical and emotional harm. Parents, disbelieve at your own peril…