Tag Archives: Division of Youth and Family Services

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.

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.

Defending DYFS/DCPP Cases: An Essential Primer


On Saturday, April 27, 2013, Allison C. Williams, Esq., Founder of NewJerseyDYFSdefense.com, will be presenting a Continuing Legal Education (CLE) seminar for the lawyers and judges of New Jersey. The topic: Parental Defense in DYFS/DCPP cases. The presentation will take place at the Crowne Plaza in Fairfield. To register for this CLE, visit www.njicle.com.

If you or someone you know is involved in litigation against the Division of Child Protection and Permanency, formerly known as the Division of Youth and Family Services, please contact Paragano & Williams, LLC for a consultation.

What a difference a year makes!


In litigation brought by the division of Child Protection and Permanency (DCPP)(formerly the Division of Youth and Family Services (DYFS)), one year is a very significant benchmark in the case. After one year in litigation, the court is required to conduct a permanency hearing and to approve a plan to achieve permanency for the child. That plan may include reunification with the parent, termination of parental rights followed by adoption, kinship legal guardianship with a relative, or one of three other alternatives. N.J.S.A. 9:6-8.50.

Though there is no statutory requirement for litigation to last one year, anecdotal experience from child welfare attorneys supports that this is typical. Various, however, a requirement for a permanency hearing within one year pursuant to the a
Adoption and Safe Families Act (ASFA).

Further, parent educational materials distributed in child welfare courts, provided by the Administrative Office of the Courts (AOC), that the case should be resolved with reunification, if possible, within one year.

But should we accept the de facto presumption that the litigation must last a year? Does having a one-year “benchmark” allow the agency to justify its delay in implementing necessary services to achieve reunification? Does having a one-year benchmark encourage the agency to talk on additional requested services for family over the course of that year, knowing that the practice typically includes a one-year period of litigation? And because it is exceedingly rare that a court will not grant the agency its request for additional services, what is lost, really, by requesting more and more and more of a parent because the agency has one year to play with?

It is a dirty little secret of child welfare agencies that services are often provided to families solely for the purpose of meeting the statutory requirement down the line to terminate parental rights. Now that ASFA requires concurrent planning, the agency cannot take this “over servicing” approach with only those families anticipated to have termination in their future; it adopts this approach for all families.

The consequence of this “standard operating procedure” is that many families are simply tortured by a one-year entitlement by the agency to control its life, rather than a strategic, directed approach to help families and end litigation. It is true that many families achieve reunification before the end of litigation, as a parent may seek return of the child at any time, which shall be granted unless there is evidence of harm to the child’s health, safety or welfare. See, N.J.S.A. 9:6-8.32(a). Yet, it is all too common that the division successfully opposes reunification upon the stated concern that a lapse of perfection upon reunification will only result in a subsequent removal.

This concern is not totally unwarranted. However, the one year benchmark is far too often used as a guillotine over families, rather than a tempered response to the circumstances presented to the court. Wow the benchmark appears to be here to stay, we should not accept that one year is a magic number that should guide most cases. Each case requires and deserves a case-by-case individual approach.

If you or someone you know is involved in child welfare litigation that appears to be dragging on needlessly, contact Paragano & Williams, LLC for assistance resolving your matter expeditiously.

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.

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 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.

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.