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.

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?