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.

DYFS Lawyer: All Lawyers are not Created Equal


When a parent is accused of abuse or neglect, or faces the most severe life consequence of termination of parental rights, a lawyer with expertise in the field of child welfare law is vital to parent defense. Many lawyers advertise that they are capable of adeptly handling a DYFS matter. Some are correct. Unfortunately, many more are not.

DYFS litigation is imbued with complexities that transcend basic family law. This area of litigation requires an intimate familiarity with agency law and procedure, Superior Court law and procedure, and the intersection of the two. It requires an understanding of social work, psychology, psychiatry, mental health generally and medical conditions. It requires an understanding of the Rules of Court and Rules of Evidence, many of which differ from those applicable to matrimonial and family law. It requires an intimate familiarity with two key statutes defining abuse, neglect and parental unfitness, and their subparts. Few attorneys have this familiarity.

Many parents seek out an attorney who is skilled in the field of family law. One way of determining if a practitioner is skilled in family law is by seeking those who have been Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney. While these practitioners are deemed competent in the field of family law, they are not necessarily so in the field of Child welfare law. To become certified, one must pass an examination created by the Board on Attorney Certification. This examination does not include any material covering child welfare law topics.

Choosing an attorney is an important step in the reunification and sustenance of families involved in the child welfare system. Parents should be careful not to choose a lawyer simply because they are a skilled family law practitioner or, even worse, simply because they advertise that they are a “DYFS Lawyer“.

If a parent is seeking representation by an attorney with the skills, reputation and knowledge needed to help adeptly navigate the child welfare system, please contact Allison C. Williams, Esq. for a consultation.

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.

Non-Offending Parents in Sex Abuse Cases


NewJerseyDYFSdefense.com received an inquiry regarding the Division’s hostility toward non-offending parents in sexual abuse cases. Allison C. Williams, Esq. responded to this inquiry, and since then, we have received very favorable responses to that Reply in Comments. For that reason, we have decided to republish that post here.

Counsel is involved in a matter involving alleged sexual abuse by the Father wherein the Mother believes in his innocence in a northern county. She represents the non-offending parent who firmly believes her husband’s innocence. The following suggestions are made for such circumstances:

1. The non-offending parent should compile a list of reasons why s/he believes his/her spouse. The reasons should focus upon the parent-child relationship with the non-offending spouse — not the spousal relationship. Focusing on the latter will likely draw complaint that the non-offending parent prioritizes the spouse over the child.

2. The psychological community acknowledges that a parent can disbelieve that abuse has occurred, and yet, still be supportive of the child who believes she has been abused. Cite to this research every time the matter is listed in court. Such information from Learned Treatises offers material and relevant evidence to the court for dispositional purposes.

3. Minimize the public appearance of support got the alleged offending parent by the non-offending parent. The image of wife supporting husband contradicts the position that wife supports his accuser (i.e.., the child) – no matter what the psychological community has to say about the two roles being compatible.

4. Obtain private therapy for the non-offending parent. Do NOT allow the Division access to this professional unless and until there is a finding, and only then, after the consequences of such finding have been addressed in court. Keep that safe space for the non-offending parent to express fear, concern, anxiety and yes, even doubt, without fear of jeopardizing the accused parent’s defense, the child’s sense of security or the marital relationship.

These tips are not intended to constitute legal advice. If you would like to discuss your matter further, please contact me at our office and schedule a consultation with Allison C. Williams, Esq.

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.

Allison C. Williams, Esq. becomes a Fellow of the American Academy of Matrimonial Lawyers


Allison C. Williams, Esq., Founder of newjerseyDYFSdefense.com, has just been bestowed the esteemed honor of Fellowship in the American Academy of Matrimonial Lawyers (AAML). Allison has devoted her career to the practice of family law. However, what makes her unique is that she focuses her practice on the litigation of Child Welfare Law matters – custody and parental access issues against the State of New Jersey. The Academy is an elite organization, with only about 1600 members worldwide. To learn more about the Academy, visit the organization’s website page at: http://www.aaml.org/.

The American Academy of Matrimonial Lawyers was founded in 1962, by highly regarded domestic relations attorneys “To provide leadership that promotes the highest degree of professionalism and excellence in the practice of family law.” There are currently more than 1600 Fellows in 50 states.

The Academy Fellows are highly skilled negotiators and litigators who represent individuals in all facets of family law. These areas include divorce, annulment, prenuptial agreements, postnuptial agreements, marital settlement agreements, child custody and visitation, business valuations, property valuations and division, alimony, child support and other family law issues.

To be represented by a Fellow of the American Academy of Matrimonial Lawyers is to be represented by a leading practitioner in the field of family law. The 1600 AAML Fellows across the United States are generally recognized by judges and attorneys as preeminent family law practitioners with a high level of knowledge, skill and integrity. Academy Fellows enjoy a reputation for professionalism, competence and integrity.

Allison certainly meets these criteria. Congratulations, Allison, on your accomplishment!

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