Tag Archives: DYFS

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.

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.

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.

DeMystifying the Children in Court (CIC) Docket


On Wednesday, April 10, 2013, NewJerseyDYFSdefense founder, Allison C. Williams, Esq., will be presenting on a panel discussing defense of parents in child welfare (i.e., DYFS/DCPP) matters. The educational program for judges and attorneys will be presented to the Union County Bar Association (UCBA) immediately preceding the Mccloud Awards Dinner. Some of the topics will include:

– Should parents voluntarily speak to the Division of Child Protection and Permanency (DCPP) regarding allegations of child abuse;

– How to gain access to DCPP records when no complaint has been filed by the agency;

– How to litigate a custody case and a DCPP case at the same time;

– How to secure the best parenting time arrangement during a DCPP case while a criminal investigation is ongoing and/or a criminal charge has been filed;

– When to consult DCPP counsel during a matrimonial case, when to refer it out and when to handle it behind the scenes;

– How to gain a strategic advantage over the agency while “call operating” with an investigation; and

– Much, much more!

The panel will include Superior Court Judge Camille Kenny, Deputy Attorney General Christian Arnold and law guardian in Patricia Vogler. The event will take place at LaFaire restaurant in Mountainside, New Jersey, starting at 4:30 PM.

This event further confirms that Ms. Williams is the foremost authority on parental defense in child welfare cases in the State of New Jersey.

If you or someone you know is involved with the Division of Child Protection and Permanency (formerly DYFS), and you may need assistance, please contact us at Paragano and Williams, LLC.

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.

Frivolous Litigation brought by DCPP


When a party to litigation files an action or asserts an affirmative defense to an action which he knows has no basis in law or in fact, the adverse party may serve notice pursuant to the Frivolous Litigation statute seeking withdrawal of the frivolous pleading within 30 days or an award of sanctions will be sought. See, N.J.S.A. 2A:15-59.1. The requirements to seek sanctions for frivolous litigation can be found in Court Rule 1:4-8.

So, one must wonder: Can Frivolous Litigation sanctions be sought against the Division of Child Protection and Permanency (DCPP) when it asserts a knowingly unsupportable position to achieve temporary custody, or worse, to ratify a Dodd removal (i.e., a removal performed with no court order)?

The short answer is Yes, but courts are not likely to enter sanctions against the Division for many reasons:

1. If DCPP pays out money to recompense parents for its wrongdoing, those funds will not bd available to help other families genuinely in need of services.

2. The time, effort and cost involved in unearthing a “knowing falsehood”, rather than an inadvertent one, disincentivizes courts to allow exploration of the issue in pending court actions, and filing a new court action creates all sorts of problems with confidentiality.

3. Most judges are not willing to say that s/he erred by believing the Division, which is almost universally done in removal hearings. Doing so would undermine the court’s ability to give deference at the start of a case (which will make decision-making that much harder and more time-consuming).

So, should you seek sanctions against the Division, with this great likelihood of being unsuccessful? Absolutely!

Unless and until the court is presented with a compelling pattern of egregious overstepping by the agency, as demonstrated through aggressive applications by wronged parents, errors on the part of the agency will continue to appear as misguided efforts to protect children, rather than part and parcel of a pattern of abuse by the agency guided by its culture of ill-conceived arrogance about parenting and families.

Rome was not built in a day. Similarly, upending the culture of overreaching by the Division will not occur in a day. We must be ever mindful of the need to battle this culture, and the frivolous litigation statute is one way of doing that.

If you or someone you know has been the subject of a wrongful custody action or removal of a child by the Division of Child Protection and Permanency (i.e., DCPP/DYFS), please contact us to Schedule a Consultation to discuss how we can help.

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.

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.

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.