Tag Archives: child welfare

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.

Recording of DYFS Investigation Interviews


A number of parents have contacted me to seek guidance on how to handle child welfare investigations. A common query is whether or not it is permissible to record an interview with the investigator from the Division of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS). The short answer is yes, child welfare investigations may be tape-recorded. However, the better question is whether or not the investigator will allow such recording.

So long as the tape recording is of a conversation to which the parent is a party, the recording is authorized and is not a violation of either of the New Jersey Wiretap Act or considered a tortious invasion of privacy. Unfortunately, the vast majority of division investigators will outright refuse a request to tape-record their conversations with the parent. This, of course, begs the question: If you are going to perform your job as required by law, why would you oppose the recording of your interview with the accused parent? Is it because you cannot manipulate the responses provided by the parent if those responses are captured on tape recording? Perhaps it is because you fear a lack of perfection in performing your job duties, which may be brought to the attention of your supervisor.

In fairness to the workers, most people would feel some degree of anxiety if the routine performance of their job duties was captured on a recording device. Nevertheless, not only should workers consent to tape-recording of interviews, but they should encourage them. The information gathered by a Division investigator is not dispositive of the outcome of the child welfare investigation… but, it greatly influences the outcome.

The information collected is to be provided to the agency supervisor, and ultimately, a determination will be made as to whether a child is at risk of harm, has been harmed and/or is the subject of abuse or neglect by the parent. However, because caselaw imbues the Division with a “high degree of reliability” in its collection of information that is documented in agency records, information later admitted into evidence in court proceedings summarily and with little personal knowledge by the testifying worker, it is imperative that the information collected be accurate.

The high caseloads of division investigators, the speed with which referrals must be investigated, the timing of presentment to the parent for their interview, the stress of the situation and the reality that fact gathering during stressful confrontations between potential child abusers and Division workers may distort perception, justifies – if not compels – the necessity of tape-recording to accurately capture what has been reported. Many Division workers are well-intentioned professionals who aim to protect children from abuse and neglect. However, because that is their stated objective, many workers come to believe that every referral investigated should be approached from the law-enforcement perspective of aiming to “shakedown” the crime they feel is ongoing. Consequently, very few parents have reviewed investigation summaries with counsel and found their statements accurately documented in agency records. The well intentioned social worker “documented” what she believed had occurred, rather than what the parent stated had occurred. This interviewer bias has been the subject of numerous psychological studies.

With all that is at stake, the legislature should require these investigation interviews to be recorded. If the goal is to truly protect children who have been abused or neglected, or are at risk of same, our system should want harmless families to be left alone so that division resources can be devoted to those truly in need of assistance.

If you or someone you know would like assistance with a Division investigation, that may or may not involve a tape-recorded interview, contact Paragano & Williams, LLC for 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.

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.

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.

Presidential Election 2012: Impact on Child Welfare?


As Election Day draws near, Democratic President Barack Obama and Republican candidate Governor Mitt Romney have inundated the media with their positions and plans to address many issues. These issues range from health care to taxes to gender equality to energy sources. But, noticeably absent from the barrage of talking points is the candidates’ view of the Child Welfare system.

This is not at all surprising. Many American citizens have come to accept the government’s interference in family life for the touted goal of “protecting children”. Any claims of bias, personal persecution, racism, classism, abuse of power, or over-reaching by caseworkers, are routinely met with justifications, rationalizations, explanations and/or exaltations that such claims are either isolated or are a necessary evil given what’s at stake. Consequently, few people are offended by the State’s actions taken in the name of child protection… and even fewer people even care to investigate, let alone question these actions.

So, then, how does one make an informed decision when it is time to vote if neither candidate is even cognizant of the issue? Democrats tend to be more policy-oriented toward those disproportionately affected by the child welfare system – i.e., the poor. Yet, Republicans tend to be more policy-oriented toward limited government intrusion into the autonomy of individuals. There is no right answer.

Perhaps, the question to be answered is not which candidate will be best equipped to improve the Child Welfare system, but rather, which candidate will be open to becoming educated about the inequities of this system. And, truth be told, no political party has a track record to warrant support from those involved in this system if policies designed to improve the system are our measuring stick.

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?