Tag Archives: Appellate Division

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.

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.

Heightened Burden to Terminate Parental Rights of a Teen Parent


The New Jersey Superior Court Appellate Division has provided trial Courts with guidance vis-a-vis an analytical framework to evaluate the State’s efforts to terminate the parental rights of a teen parent. In the New Jersey Div. of Youth and Fam. Svcs. v. L.J.D., the Court established a “heightened burden” for guardianship matters involving teens. This “special circumstance” of teen parenthood requires “services to aid the development of the child-parent’s maturation” and likely necessitates extending reunification efforts beyond the twelve-month timeframe mandated by N.J.S.A. 30:4D-61.2(a) and N.J.S.A. 9:6-8.54(b). These are important guideposts to evaluate future TPR cases involving teen parents.

This 55-page Decision, authored by Judge Lihotz, raises many questions, not the least of which is the appropriateness of “services” offered by the agency to parents from whom children have been removed. In this case, the parent argued that services were not appropriate because the Division did not provide one last service – a Mommy & Me program – that may have been sufficient. The Court rejected this argument – not based upon the program proposed, but based upon the volume of “services” that otherwise were not utilized effectively by the parent.

This demonstrates the need for parent-advocates to oppose the routine referrals made for services when those services are not likely to benefit the parent and child. Services should not be rejected out of hand; however, if the only conceivable benefit to a parent in a particular service is to aid the Division is increasing its list of “services” offered to meet its “reasonable efforts” mandate, the service should be opposed.

Each offered “service” should be evaluated. Ask for Resumes of Service Providers. Request detailed information about the program guidelines. If the program is geared toward substance abuse, and the parent’s primary issue is psychological disorder, oppose this service being required of the parent. Or, at the very least, oppose the service being included in the list of the Division’s “reasonable efforts” to reunify. In all litigation, cases are won and lost on the details. Child welfare cases are no different. Make your record in these cases by holding the Division to its burden – whether it be the “usual” burden or the heightened burden of L.J.D.

Neglect Findings by DYFS/DCPP must be made on Science – not Assumption


On Monday, September 10, 2012, the New Jersey Supreme Court is scheduled to hear oral argument in a case of significance to all involved in the child welfare system. In DYFS (n/k/a/ DCPP) v. A.L., the trial Court, and subsequently, the Appellate Division, made a finding of neglect against a mother who ingested cocaine during her pregnancy. The finding has wide-ranging implications.

Certainly, no one disputes that ingestion of cocaine may have serious consequences for an unborn fetus – but no less serious than ingestion of cigarette smoke, failure to wear seatbelts, and other less than laudable conduct during pregnancy. The difference with cocaine, however, is that its very mention suggests a moral culpability, which does not attend to other conduct of mothers-to-be.

What may surprise many who do not dwell in the land of child protection is that there is little science to support the conclusion that in utero ingestion of cocaine, per se, is harmful to a fetus. Opponents of the trial court’s conclusion argue that attaching the severe consequence of a substantiation and loss of a child to the unfortunate conduct attendant to addiction will, in all likelihood, deter pregnant addicts from seeking treatment.

And, by thwarting treatment, the child protection community is, once again, creating a “cure” that is worse than the “ailment”. Better alternatives to treatment of addiction must be pursued by our society. It will be interesting to see how our Supreme Court views this critical issue.

To watch the Supreme Court argument, check out the live webcast at 10:00 a.m.:

http://www.judiciary.state.nj.us/webcast/index.htm

DYFS (n/k/a DCPP) can only do so much


In an unpublished opinion, DYFS v. J.M., the Appellate Division has created a significant loophole in the notion, first established in DYFS v. G.M., that the offending parent is entitled to a dispositional hearing once he or she has remedied the harm that commenced the litigation.

In J.M., the Appellate Division upheld a trial court’s decision to terminate litigation once the father had performed all services to address an act of excessive corporal punishment. During dependency of the case, custody had been transferred to the mother. At the end of the case, everyone agreed that the father had addressed the issue. However, because the father has lost his job and was not able to be neatly resume custody of the child, the case was closed. The Appellate Division affirmed the trial court’s decision to close litigation and noted that, once the father obtained stable housing, he could apply for custody any non-dissolution (FD) proceeding.

Of course, this ruling leaves open a series of questions. Normally, once the parent has addressed the division’s concerns, the pre-litigation custody arrangement is reinstated. In this case, that could not yet happened. But, what happens when the father does obtain housing? Will the custody arrangement then resume based upon the father filing an FD action? Or, will the father have to prove a change of circumstances, because the Appellate Division directed him to file a “custody action”?

What a significant amount of time passes between this Appellate Division decision and the time when father obtains employment? One could argue that the passage of time that the child has been with the mother constitutes a change of circumstances. However, isn’t that what typically happens during the pendency of a protracted, DCPP case, which usually lasts about one year? The parent is still entitled to have the prior arrangement reinstated. Why, in this case, is the father required to file a new matter for custody?

It appears that this is yet another circumstance in child welfare law where the rules implemented are inconsistent with long – established family law principles. Another area is in foster parent litigation. We know that foster parent bonding, in and of itself, is not sufficient to warrant a custody application by the foster parents with the child has been in their care for several years. Yet, when that same child had been placed into the custody of a relative by the parent for a period as lengthy, that relative could have filed for custody, premised upon being the psychological parent of the child. See, V.C. v. M.J.B. Because of the policy of family reunification between parent and child, trumping the emotional pull of a foster parent, we gloss over that psychological bond between the child and the foster parent to serve what our society says is a superior goal.

Perhaps that is what the J.M. appellate court also sought to accomplish – namely, to support stability for a child as between his biological parents. In that sense, the father’s unemployment and inability to provide stable housing, inadvertently, led to a de facto change in custody as in the Ohloff decision – and hence, after the “test period” time has passed, a new application to modify custody must be filed.

It is uncertain the reasoning behind this decision; however, its vague directives leave much argument for future litigation for this family. What is clear from the decision, notably, is that DYFS (DCPP) is not required to be involved at that point – to assist with financing father reunification or otherwise. And as economic times continue to remain dismal, it is likely that similar decisions will be entered by the Appellate Division in the future, shifting the burden to parents to remedy child welfare concerns promptly or risk losing the agencies assistance with restoring the family unit altogether.

Defense counsel should be mindful to address this issue with parents as child welfare litigation unfolds and life circumstances may hamper and ultimate reunification, through no fault of the parent or the division.

DYFS v. M.P.: Imperfect Parenting as Child Abuse or Neglect?


In the recent unpublished decision of DYFS v. M.P. & D.C., the Appellate Division reversed a trial Court’s finding of abuse and neglect against a mother, determining the ruling was insufficient as a matter of law. Albeit in relatively innocuous prose, the Appellate panel appeared cognizant of the inclination of some lower Courts to adjudicate imperfect parenting as abuse and neglect. For instance, in this case, the mother and 2 kids were staying in a trailer/camper while visiting relatives in New Jersey. The trial Court found the camper “inadequate” – “a fact that would support the unlikely conclusion that every child on a camping trip with a parent or guardian is abused or neglected”.

This powerful dicta raises an important issue for consideration. How many times are parents found to have abused or neglected a child, when all the parent really did was live a less-than-perfect existence? How often do Courts truly require “willful and wanton misconduct” by a parent, with an attendant negative consequence for a child – either harm or substantial risk of harm – before the parent is branded with the lifetime label of abuser? Defense counsel must be mindful to reiterate these standards in EVERY case to ensure that “imperfection of parenting” does not transmute into the “imperviousness of labeling” parents.

DYFS Substantiations of Child Abuse – The Role of Corroboration


In DYFS v. T.L. A-0506-11T2, the Appellate Division entered several rulings about corroboration of children’s statements of prior abuse. The Court noted that N.J.S.A. 9:6-8.46(a)(4) exists to alleviate the necessity of having children unnecessarily relive unpleasant experiences by being required to testify when other reliable evidence will suffice to prove the truth of the matter.  One such piece of “reliable evidence” is the Admission of the parent. 

But interestingly, the Court also held that prior statements of “the child” need not be limited to “the child” at issue in the litigation.  Prior statements of non-subject children can also be admitted.  This ruling seems at variance with the plain language of the statute, which references “the” child – not “a” child.  However, the statute is designed to prevent abuse victims from testifying.  In this case, all children at issue – even those who were not subject to the action – were victimized by the conduct about which statements were given.  Hence, the result achieved by the ruling is consonant with the purpose of the statute.

But what if the non-subject children could only speak to the alleged victimization of “the child” at issue in the case?  In this scenario, I am not so sure that the Court’s ruling in T.L. would stand.  Future published appellate cases may give some guidance on this issue, as there is none at present.