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.

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.

New Evaluation Protocol for Child Abuse Investigations


Effective in April 2013, the Division of Child Protection and Permanency (formerly the Division of Youth and Family Services) will have a new administrative options for determinations of child abuse investigation. As the law stands now, when the division investigates an allegation of child abuse or neglect, there are only two options for the “outcome” of the investigation. Either the allegation is substantiated or unfounded.

“Substantiated” means that it is more likely than not that the alleged offense did occur and/or that the alleged perpetrator is responsible. “Unfounded” means that either the alleged offense is not more likely than not to have occurred or that the alleged perpetrator is not the one responsible for the abuse or neglect. Once the referral is received, the investigation outcome can be based on the initial allegation or upon any information arising from the investigation.

There once was a time when there existed a third category of outcomes between “unfounded” and “substantiated”. That category was “unsubstantiated”. “Unsubstantiated” means something more than unfounded – i.e., that the referral was not “baseless”, but that the information could not be verified one way or another and hence, the division would not characterize the allegation as abuse or neglect.

Now, the new administrative protocol will have four levels of evaluation. They will have varying degrees of consequences, but the most significant is that only an allegation that is “substantiated” will result in a listing of the parent on the Child Abuse Registry maintained by the Department of Children and Families (DCF). On the flipside, only allegations that are “unfounded” will result in an expungement of the child abuse records, which will occur within three years of the “unfounded” outcome. For the two into room findings on child abuse investigation, the division will retain child-abuse records and may have some increased authority to provide services to the family absent consent; however, the parent will not be listed on the registry.

While it may appear to those who handle these cases that the new system provides opportunities for “settlement”, practitioners should still be wary of “settling” these cases. The reason is that the prior administrative finding, if not contested and/or if not resolved as a fact finding hearing with the finding other than “unfounded”, future child abuse investigations may present a greater difficulty for your client to defend them if the matter had been simply “unfounded”. As with any burgeoning area of the law, new administrative and/or legislative imperatives do still require a full analysis of potential consequences, with disclosure to the parent of the uncertainty of consequences, before a body of law will be established to address the new regulations. Parents should be voire dired about their understanding of the “settlement”, if any is proposed.

Further, defense counsel should be careful in negotiating and place into consent orders the representations upon which the parent is relying in “settling” their case. This ensures that future child abuse investigations will not have the presumptive effect that our law currently provides to substantiated child abuse in a parent’s history.

For more information about child abuse agency regulation changes, please contact us to schedule a consultation.

Happy New Year from NewJerseyDYFSdefense.com!


As we say goodbye to 2012, we here at New Jersey DYFS Defense want to take some time to reflect on where we have been and where we are going.

In April 2010, NewJerseyDYFSdefense.com was launched by our founder, Allison C. Williams, Esq. Ms. Williams created this site to serve as a portal of information for attorneys who represent parents in child welfare matters involving the Division of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS). The site became an invaluable resource for the bar, housing periodicals and scholarly articles published by Ms. Williams over the years.

Then in 2011, Ms. Williams began to see a need to expand the reach of our site. Members of the public sought legal advice, information and guidance on how to defend against actions brought by the State, as well as how to handle agency investigations, negotiate case plan and navigate services – either prior to, during or after litigation. As more and more individuals sought guidance, Ms. Williams began to shift her focus from making the site’s invaluable information accessible, to making herself available for consultation and representation.

Now, in 2012, NewJerseyDYFSdefense.com has become an entity unto itself. Ms. Williams posts content about this obscure and complicated area of law including social commentary, legal analysis and practice pointers not designed to serve as legal advice. As a result, NewJerseyDYFSdefense boasted record volume, averaging HUNDREDS of site hits per day. Ms. Williams’ career has blossomed.

In 2012, she became the first African American attorney to gain Fellowship in the New Jersey Chapter of the American Academy of Matrimonial Lawyers. She was appointed to a New Jersey Supreme Court Committee – the Board on Attorney Certification Matrimonial Committee. Ms. Williams also took the helm as the Chair of the Certified Attorneys Section of the New Jersey State Bar Association.

These accomplishments, while impressive, have meant the most to Ms. Williams in one key area of her practice — i.e., her ability to marshal these efforts to continue to help families embroiled in litigation against the State of New Jersey. As a thought leader in this area of the law, NewJerseyDYFSdefense.com has been cited by the media in evaluating the defense position in matters before the New Jersey Supreme Court. And, most recently, Ms. Williams was recognized as a thought leader when invited to appear on the Katie Couric show to blog on the topic of parents falsely accused of child abuse.

We envision even greater accomplishments in 2013. It is only through zealous advocacy, vocal and visible debate on child welfare topics, participation in the legislative process where these matters are implicated and service to the profession through aggressive advocacy and caring for clients that we will be able to change the Child Welfare system for the betterment of families in New Jersey and society as a whole.

We hope you will continue to post your comments, visit the site for updates on this area of the law and contact us with any questions, concerns or requests for representation.

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.

Shaken Baby Syndrome Evidence Questioned


Below is the link to an interesting article on “abusive head trauma”, formerly known as “Shaken Baby Syndrome”.

Has medicine finally discovered the err of its ways? And, if so, what then will become of the countless lives ruined by the misinformation, the countless children adopted out from underneath the accused parents, the parents jailed or worse due to the misinformation? Can child abuse zealots ever concede this point without calling into question the rationality of their procedures and convictions?

Read this article as poignant food for thought…

http://advocacytraining.blogspot.com/2012/01/shaken-baby-syndrome-evidence.html?m=1