Tag Archives: division

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.

The Importance of Appealing a DYFS/DCPP Substantiation of Abuse/Neglect


If the Division of Child Protection and Permanency substantiates an allegation of child abuse or neglect, the perpetrator’s name is listed on the Child Abuse Central Registry. N.J.S.A. 9:6-8.11. This is a confidential list that is maintained by the Department of Children and Families. Only a limited number of agencies have a statutory right to access the Registry, including licensed daycare providers, adoptive agencies and residential elder care facilities. For all others, a request must be made in writing to the Division to release the information, and failing same, court order must be sought.

School districts employing teachers are not, by statute, entitled to check the Registry. However, nothing in the law prevents an employer (including a school district) from requesting an applicant’s consent to authorize the Division to release this information for purposes of evaluating her employability. Further, nothing in the law protects an applicant from an employer’s choice to draw an adverse inference from an applicant’s failure or refusal to release the information.

So, if a person is listed on the Registry, they remain in jeopardy of having an employer-requested background check that could preclude him from employment. If you receive a letter advising that the Division had substantiated an allegation of abuse or neglect, you should appeal. Instructions will be provided in the letter, advising where to send the request and what information is required.

An administrative appeal occurs in the Office of Administrative Law (OAL). The Rules of Evidence do not apply. The procedure is trial-like, but the cases are tried “de novo”. Rather, the a question for the Administrative Law Judge is whether the agency’s decision is arbitrary, capricious or unreasonable. Because of these differences between Superior Court litigation and administrative practice, it is imperative that an accused parent/caregiver select an attorney that is skilled in handling these matters.

If you or someone you know has been substantiated for abuse or neglect and desire to appeal, 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.

Find out if Your Name is on the Child Abuse Registry


Parents have recently inquired of me as to how they can find out if your name is on the child abuse registry. The registry is maintained by the Department of Children and Families (DCF). These agency records are confidential pursuant to statute. See, N.J.S.A. 9:6-8.10a. However, in certain limited circumstances, one may find out information that is otherwise confidential per statute.

If a parent or guardian is involved in a division matter, confidential information may be released to the extent necessary to help negotiate a case plan or discuss services for a family. N.J.S.A. 9:6-8.10a(b)(19).

If the matter is in active litigation, the parent’s attorney may have access to the confidential information. N.J.S.A. 9:6-8.10a(b)(17).

Finally, if the information is sought while no litigation is pending by the division, but other litigation exists or is contemplated, the parent may seek a court order to compel the release of the information. N.J.S.A. 9:6-8.10a(b)(6)
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If a parent is listed on the registry, they are entitled to appeal this administrative finding. The division will notify the parent in writing of the administrative right to appeal, which must be taken within 20 days of receiving written notification by the agency of its finding. For this reason, the division typically will advise the parent of the existence of a substantiated finding, even if the written notification has been sent to the parent. If the parent has not timely appealed, the division may choose to allow an administrative right to appeal; however, if not, the parent’s only recourse is to proceed to the Appellate Division to compel the agency to allow an administrative appeal.

For more information about gaining access to the registry and other confidential information, please contact our office and schedule a consultation to discuss your particular circumstances.

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.

Heightened Burden to Terminate Parental Rights of a Teen Parent


The New Jersey Superior Court Appellate Division has provided trial Courts with guidance vis-a-vis an analytical framework to evaluate the State’s efforts to terminate the parental rights of a teen parent. In the New Jersey Div. of Youth and Fam. Svcs. v. L.J.D., the Court established a “heightened burden” for guardianship matters involving teens. This “special circumstance” of teen parenthood requires “services to aid the development of the child-parent’s maturation” and likely necessitates extending reunification efforts beyond the twelve-month timeframe mandated by N.J.S.A. 30:4D-61.2(a) and N.J.S.A. 9:6-8.54(b). These are important guideposts to evaluate future TPR cases involving teen parents.

This 55-page Decision, authored by Judge Lihotz, raises many questions, not the least of which is the appropriateness of “services” offered by the agency to parents from whom children have been removed. In this case, the parent argued that services were not appropriate because the Division did not provide one last service – a Mommy & Me program – that may have been sufficient. The Court rejected this argument – not based upon the program proposed, but based upon the volume of “services” that otherwise were not utilized effectively by the parent.

This demonstrates the need for parent-advocates to oppose the routine referrals made for services when those services are not likely to benefit the parent and child. Services should not be rejected out of hand; however, if the only conceivable benefit to a parent in a particular service is to aid the Division is increasing its list of “services” offered to meet its “reasonable efforts” mandate, the service should be opposed.

Each offered “service” should be evaluated. Ask for Resumes of Service Providers. Request detailed information about the program guidelines. If the program is geared toward substance abuse, and the parent’s primary issue is psychological disorder, oppose this service being required of the parent. Or, at the very least, oppose the service being included in the list of the Division’s “reasonable efforts” to reunify. In all litigation, cases are won and lost on the details. Child welfare cases are no different. Make your record in these cases by holding the Division to its burden – whether it be the “usual” burden or the heightened burden of L.J.D.

When are DYFS services considered “reasonable”?


“Reasonableness” is imbued in our child protection laws. The agency must exercise “reasonable” efforts to avoid out of home placement. If the child is removed, the agency must provide “reasonable” services to achieve the goal of reunification. The “reasonableness” of those services is a condition precedent to termination of parental rights.

And yet, New Jersey case law is bereft of any true explication of what is considered “reasonable” for services rendered in the name of child protection. For instance, is your run-of-the-mill parenting class a “reasonable” service for the parent of a mentally disturbed, highly medicated “toxic terror” of a child with severe behavioral problems? Is “counseling” a “reasonable” service to address deep-seated psychological issues dating back to childhood, when such counseling is offered by an LCSW and not a psychologist?

And what about court-ordered services? If the division offers some services, but fails to comply with a court order providing for other services, can the totality of services rendered be deemed “reasonable”? And what about when mental health professionals that provide the court-ordered services sought by the division come up with the wrong diagnosis? New Jersey case law does not require the division to succeed in remedying the problems in a family with the services offered; however, in evaluating the “reasonableness” of those services, can a court legitimately find that a service that led a parent down the wrong path by mis-diagnosing a mental health disorder and requiring compliance with treatment of the wrong problem was, in fact, “reasonable” simply because it was sought and paid for by DYFS?

All too often, defense attorneys fail to make a probing inquiry into the appropriateness of the services sought by the division. Earlier this year, the Appellate Division decided T.S., which cautioned trial courts against surreptitiously ordering the “usual services” simply because they are the services usually ordered. Inherent in that Appellate Division ruling is an acknowledgment that over-servicing a family is not reasonable.

But aside from the sheer volume of the repetitive services offered in these cases, the issue of “reasonableness” remains an underutilized area of parental defense in these cases. When addressing the many requests made of parents in these cases, defense counsel should be ever mindful of the common sense, or lack thereof, of what is being requested.

Simply put, when baby has a wet diaper, the solution is not to give her a bottle. Similarly, when dad has an alcohol problem, the solution is not to stick him in a parenting class.

If the question being asked is, “Which came first, the chicken or the baseball,” perhaps we should be questioning the “reasonableness” of the question (i.e., the Division’s services), and not the “reasonableness” of the parent’s inability to answer a ridiculous question.