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.

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.

Allison C. Williams, Esq. to Present a CLE on Confidential DYFS Records


New Jersey, among other states, requires licensed attorneys to attend a certain number of hours of Continuing Legal Education (CLE) programs every two years. Many bar associations and private companies provide these programs; however, the largest provider in the state is the New Jersey Institute of Continuing Legal Education (www.njicle.com).

On Monday, November 12, 2012, Allison C. Williams, Esq. will be presenting for NJICLE in the Annual Hot Tips for Family Lawyers CLE. The Hot Tips CLE includes a wealth of information from 40 presenters, providing practice pointers for attorneys addressing a wide array of topics. Ms. Williams will be presenting on DYFS issues – specifically, how to gain access to confidential records maintained by the Division of Youth and Family Services (DYFS), now known as the Division of Child Protection and Permanency (DCPP).

Provided to each attendee at the CLE presentation will be a comprehensive book of materials containing the article authored by Ms. Williams. That article will be available here on NewJerseyDYFSdefense.com in the upcoming weeks. Check back for a copy of the article and for more valuable information all about defense of parents in DYFS/DCPP matters.

Should a Parent Accused of Abuse or Neglect Agree to an Interview with DYFS?


Parents often contact me and ask if the accused parent is required to be interviewed by the Division of Youth and Family Services (DYFS), n/k/a the Division of Child Protection of Permanency (DCPP). Some parents want to exonerate themselves and often feel that a quick chat with the Division may resolve the issue. Other parents fear exchanging any words with the Division, no matter how innocuous the alleged infraction or conciliatory the worker who contacts them. The determination of whether or not a parent should be interviewed is fact sensitive and requires legal advice. This post is not designed to replace that advice.

The Division has an obligation to investigate every referral made alleging potential abuse or neglect or parental unfitness. Their focus is on actual harm and risk of harm. To do that, an interview with the child is typically required. For non-verbal children, the investigator must personally observe the non-verbal child. Once these minimum requirements (and others) are satisfied, the Division must speak with the accused parent.

If the parent refuses to be interviewed and the Division can discern that there is no imminent risk of harm that necessitates the removal of a child, the agency must determine whether or not it will pursue the matter further. In some instances, the Division can determine from the information gathered to date that no abuse or neglect has occurred or is likely to occur based upon the current level of risk to the child. In these instances, the agency may choose to close its investigation with a determination and no further involvement with the family – despite its non-compliance with the Administrative Code requirement that it speak to the accused parent. My experience has been that this is rare.

Conversely, if the parent refuses to be interviewed, the Division may elect to take one of several actions – all of which are undesirable. The Division may determine that the potential risk to the child cannot be determined, absent an interview with the parent. If that is the case, the agency may elect to seek removal of the child until such time as risk can be assessed. The Division may also file an action in Superior Court to compel a parent to cooperate with its investigation. A court will typically compel the parent to be interviewed, absent some compelling reason such as the pendency of a criminal investigation or prosecution.

The determination of when a parent should submit or refuse to submit to an interview with the agency is very fact-specific. The nature of the allegations, parent’s knowledge of the child’s statement(s) if any to the agency, the parent’s relationship with the other parent of the child at issue, and most importantly, the county office investigating and the judge in the county hearing DYFS/DCPP matters.

If a parent is contacted by the agency and an interview is requested, the parent should ask for the opportunity to consult with counsel. In such instances, Allison C. Williams, Esq. can consult with the parent to determine the best course of action, which may include an interview in the presence of counsel or a refusal to be interviewed. A parent should not simply refuse to be interviewed and hope for the best. This rarely works out for the best.

DYFS Cases name both Parents as Defendants


Parents often ask me why the non-offending parent is listed as a defendant when the State of New Jersey, vis-à-vis the Division of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS), files a lawsuit in court. The answer is simple. Because the state is seeking relief against the parents, whether that parent has done anything wrong or not.

Usually, in these cases the division is looking for the court to order the parents to call operate with services for the child who has been allegedly abused or neglected. Both parents have a right to be heard and to oppose any such relief as to their child.

Of course, this raises an important irony. When the court has jurisdiction over the child, which occurs as soon as the division files an action, services are routinely ordered for the child. This may include evaluations, therapy, mentors, school assistance, Financial assistance, etc. If a parent were inclined to oppose such “services”, what would be the end result? With rare exception, the parent’s opposition would be noted, but not honored, and services would be ordered in any event.

We do have the recent case of the New Jersey Division of Youth and Family Services vs. T.S., Which cautions the trial court against ordering services simply because they are “routinely ordered”; However, those services are related to the parent – not the child.

In reality, the state wants the parent to participate in the litigation – whether they are the cause of it or not – as they will be required to implement any services for the child, Including, for instance, transporting the child to therapy, assisting the child with any tutoring or mentoring that is provided for the child, giving background information to any professionals performing evaluations, etc. And, if nothing else, the non-offending parent will want to know what is being alleged as to his/her child.

Non-offending parents should use their participation in the litigation for its intended purpose of facilitating a resolution of issues impacting the child. For any litigation that follows the child welfare case, the parent will then be armed with information about the welfare of the child that may bare upon issues of custody, parenting time, and related issues.

Intoxication from Prescription Drugs is NOT automatically Child Neglect


On October 2, 2012, the Appellate Division published the case of DYFS (DCPP) v. S.N.W., providing trial Courts with guidance to determine allegations of neglect where a parent consumes prescription medication to the point of intoxication.

In S.N.W., the parents both ingested prescribed Xanax – allegedly more than the maximum dosage permitted per day – while caring for their children, and as a result of the ingestion, became shaky and unstable, coherent, but visibly intoxicated. During the initial trial, the only evidence of intoxication was the observations of the police officer and the DYFS (DCPP) worker. No medical evidence supported intoxicated; none was offered. Evidence tended to suggest that the mother had taken more medication than was prescribed.

The trial court made a finding of neglect, after which an appeal ensued. Ultimately, the case resulted in this published decision, where the Appellate Division gave us two valuable holdings for defense of parents in these cases. First, the Court held that trial Courts MUST focus on the conduct of the parent when evaluating neglect cases – the G.S. standard of “willful and wanton misconduct” that rises to the level of recklessness MUST be present to have “neglect” pursuant to N.J.S.A. 9:6-8.21(c).

Second, if the parent ingests medication as prescribed, the legal standard for neglect precludes a finding of neglect. However, if the medication dosage was exceeded, a neglect finding is NOT automatic. Rather, the Court must evaluate various factors, including but not limited to the amount ingested, the physical effect on the parent, whether excess dosage was accidental or deliberate, and the ability of the parent to exercise the minimum degree of care in that state. Again, the Court reiterated – and strengthened the ultimate conclusion – that knee-jerk assumptions of “drugs = neglect” are NOT acceptable under New Jersey law.

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.

DYFS/DCPP’s marriage to Supervised Visitation


Ever notice how every case filed by the Division of Youth and Family Services (DYFS), n/k/a the Division of Child Protection and Permanency (DCPP) kicks off with a Complaint and a request for supervised visitation? Does anyone ever question the need for supervision at the initial filing? Of course not, you may be thinking. After all, why would DYFS (DCPP) be involved with the family if there was no need to monitor the actions of the alleged child abusers, right?

Sadly, the allegations made in these cases often come partnered with the assumption that parental supervision is required. But is that always true? What about the case where a father is accused to acts of domestic violence against a mother in the presence of a child but never any infliction of harm against a child? Presumably if the “harm” to that child is witnessing domestic violence, how likely is that harm to reoccur if the parents are not together when in the presence of the child?

And what about cases in which a parent has a substance abuse problem, but the parent’s relatives all confirm that she has never used or abused substances in the presence of the children? Can that parent really not be trusted to have unsupervised dinner visits with the children, especially if she must blow into a breathing device installed on her vehicle to confirm she is “dry” before operating it?

How about the case where a step-parent is accused of being unduly harsh toward a step-child but no such allegation exists as to his natural children? Can he really not be trusted to be alone with his children against whom there is no allegation?

Unfortunately, the DYFS/DCPP “script” is to request supervision; however, the Division’s Field Operations Manual clearly provides that visitation is to be LEAST RESTRICTIVE option available to ensure child safety, and where supervision is requested, the rationale for the request must be set forth with specificity. DYFS rarely goes “off script”, and as a result, Superior Court judges rarely go “off script”.

But placing the impediment of plastic, short-term parental restriction upon a parent who is already being overwhelmed by the panoply of testimony, evaluations, monitoring and worse, usually does more harm than good in the “altruistic” world of social work. It creates barriers to collaboration between the State and the parent to remedy the harm alleged to impair parenting. And, isn’t that why the action is being filed in the first place?

As defense counsel, it is our job to argue against supervision. Never concede that supervised visitation is warranted on the facts presented. Be creative in fashioning the “least restrictive” alternative. Stop assuming that the Division will prevail in its quest for supervision, and perhaps, one day, it will not.

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.