DYFS (n/k/a DCPP) can only do so much


In an unpublished opinion, DYFS v. J.M., the Appellate Division has created a significant loophole in the notion, first established in DYFS v. G.M., that the offending parent is entitled to a dispositional hearing once he or she has remedied the harm that commenced the litigation.

In J.M., the Appellate Division upheld a trial court’s decision to terminate litigation once the father had performed all services to address an act of excessive corporal punishment. During dependency of the case, custody had been transferred to the mother. At the end of the case, everyone agreed that the father had addressed the issue. However, because the father has lost his job and was not able to be neatly resume custody of the child, the case was closed. The Appellate Division affirmed the trial court’s decision to close litigation and noted that, once the father obtained stable housing, he could apply for custody any non-dissolution (FD) proceeding.

Of course, this ruling leaves open a series of questions. Normally, once the parent has addressed the division’s concerns, the pre-litigation custody arrangement is reinstated. In this case, that could not yet happened. But, what happens when the father does obtain housing? Will the custody arrangement then resume based upon the father filing an FD action? Or, will the father have to prove a change of circumstances, because the Appellate Division directed him to file a “custody action”?

What a significant amount of time passes between this Appellate Division decision and the time when father obtains employment? One could argue that the passage of time that the child has been with the mother constitutes a change of circumstances. However, isn’t that what typically happens during the pendency of a protracted, DCPP case, which usually lasts about one year? The parent is still entitled to have the prior arrangement reinstated. Why, in this case, is the father required to file a new matter for custody?

It appears that this is yet another circumstance in child welfare law where the rules implemented are inconsistent with long – established family law principles. Another area is in foster parent litigation. We know that foster parent bonding, in and of itself, is not sufficient to warrant a custody application by the foster parents with the child has been in their care for several years. Yet, when that same child had been placed into the custody of a relative by the parent for a period as lengthy, that relative could have filed for custody, premised upon being the psychological parent of the child. See, V.C. v. M.J.B. Because of the policy of family reunification between parent and child, trumping the emotional pull of a foster parent, we gloss over that psychological bond between the child and the foster parent to serve what our society says is a superior goal.

Perhaps that is what the J.M. appellate court also sought to accomplish – namely, to support stability for a child as between his biological parents. In that sense, the father’s unemployment and inability to provide stable housing, inadvertently, led to a de facto change in custody as in the Ohloff decision – and hence, after the “test period” time has passed, a new application to modify custody must be filed.

It is uncertain the reasoning behind this decision; however, its vague directives leave much argument for future litigation for this family. What is clear from the decision, notably, is that DYFS (DCPP) is not required to be involved at that point – to assist with financing father reunification or otherwise. And as economic times continue to remain dismal, it is likely that similar decisions will be entered by the Appellate Division in the future, shifting the burden to parents to remedy child welfare concerns promptly or risk losing the agencies assistance with restoring the family unit altogether.

Defense counsel should be mindful to address this issue with parents as child welfare litigation unfolds and life circumstances may hamper and ultimate reunification, through no fault of the parent or the division.

Evidence in DYFS cases to be discussed in a panel discussion


On Monday, August 13, 2012, Allison C. Williams will be presenting for the New Jersey Institute of Continuing Legal Education (ICLE) in the preeminent Evidence for Family Lawyers CLE. This program is designed to provide hours of rich information about the intricacies of the Rules of Evidence in the Family Part.

Of critical importance is ICLE’s willingness to include topics related to DYFS (n/k/a DCPP) cases – a progressive move demonstrating ICLE’s continuing responsiveness to the needs of the legal community.

And, further, this is a real testament to Allison C. Williams’ fervent efforts to educate the bench, bar and society at large about litigation within the child welfare system in New Jersey.

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.

Can I sue DYFS?


Parents often wonder if they can file a lawsuit against the Department of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS). A simple Google search will locate many websites devoted to the goal of “suing DYFS”. Does this really happen? How often? And, who is the prevailing plaintiff when battling the state of New Jersey over its flawed child protection agency?

Unfortunately, only in very limited circumstances can a parent sue DYFS for its often ill-conceived interference in family life. DYFS caseworkers are afforded immunity when performing work in their official capacity as employees of the state. Only when conduct is performed outside the scope of their broad-ranging job duties, or when action is taken that can be considered tortious, may an employee be subject to civil penalties.

Unfortunately, much bad behavior is tolerable when acting under the guise of “child protection”. Perhaps this is because our society feels a moral imperative to protect those who cannot protect themselves. But, does state interference truly prevent and/or remediate harm to children? Or is it more often the case that state involvement causes more harm than good?

To be certain, many families require state assistance in order to function minimally and to preserve their families. However, the vast overreaching of many caseworkers and investigators call into question the legitimacy of those well intentioned, dedicated social workers who are truly desirous of preventing out-of-home placement and keeping families together through the provision of services and proper case management.

As is often the case, it may be that the only way to effectuate change in the system is to initiate litigation and bring the problems to the forefront. Only when we begin to see the evisceration of families as a societal problem, and not just a poor person’s problem, will families in New Jersey truly be safe from obtrusive government intervention.

What’s In A Name: DYFS becomes DCPP


Never one to be labeled stagnant, our Child Welfare agency in New Jersey, formerly known as the Division of Youth and Family Services (DYFS), will now be known as the Department of Children Protection and Permanency (DCPP).  What does this means for those of us in the trenches?  And most importantly, what does this mean for the families of New Jersey?

A change in an agency name may signify a change in perspective – perhaps, a change in the objectives that will be pursued.  But, this may or may not be a good thing.  The prior name encompassed both Youth and Family.  Youth, i.e., Children, came first, but linked to Youth were their families.  Oftentimes, parents ask why DYFS is only concerned about the “youth” and not the “family”.  One can only imagine how that query will fester now that “Family” is taken out of the name altogether.

Child Welfare Advocates may posit that DYFS was always directed, first and foremost, toward “Child Protection and Permanency”, so codifying those goals in the agency name makes sense.  However, this position overlooks the reality for many families involved with the child welfare agency. 

When the State steps in, accuses parents of wrongdoing, critiques every aspect of their lives and their very being, sometimes removing their children from their care, many times restricting their access to their children, parents’ responses often range from Fight to Flight, long before submission emerges.  At the inception of the case, the child welfare advocate many times engenders a sense of helplessness in the parent that causes the parent to obfuscate issues in defensiveness, to such an extent that feigned concerns by the agency become as real in the eyes of the Court as the legitimate concerns that may, or may not, rise to the level of abuse or neglect of children.  When that occurs, the antagonistic relationship between the parent and the agency becomes yet another obstacle to be overcome by the parent in order to achieve reunification.  Yet, when this process of overcoming takes longer than a year, the State may proceed with an action to terminate parental rights.

Parents, quite justifiably, fear the agency.  Its involvement signifies the beginning of a very short (1 year) journey toward eliminating lifelong problems that took decades to present.  Met with this nearly impossible standard, families can be eviscerated.  Parents realize their ill-fated circumstances through all contacts with the agency – even by seeing its name and all that its name represents.

Do we really want “Permanency” (often equated with anti-reunification) to be the symbol of New Jersey’s Child Welfare agency?  Should “Family” have been removed from the name of the agency charged with “rehabilitating and improving family life N.J.S.A. 9:6-8.50(e)”?

How much “caution” is Enough for DYFS?


“Every failure to perform a cautionary act is not abuse or neglect. When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute.” This principle, first established in DYFS v. T.B., recently formed the basis of a reversal of a neglect finding by DYFS in DYFS v. M.D.

In M.D., a 4 year old reported to her mom that her 12 year old brother touched her and their 7 year old brother in a sexual manner. Mom immediately contacted a child psychologist, involved DYFS and, at the behest of DYFS, notified the Prosecutor’s Office. In response, DYFS and mom entered into a Safety Plan whereby the 12 year old would not be unsupervised with his siblings. The 12 year old began therapy.

After months of therapy, the therapist suggested that the 12 year old be granted gradual increases in unsupervised time, conditioned upon his adherence to rules governing his conduct. On one such occasion, mom found the 12 year old in a state of undress with his siblings. Mom notified DYFS. To thank her for her candor, DYFS substantiated child neglect. After a trial, an Administrative Law Judge agreed with DYFS that mom’s conduct constituted neglect. The Appellate Division, correctly, reversed, citing the “cautionary act” language of T.B.

Change the facts of this scenario somewhat: What if mom had refused to “turn in” her 12 year old to be criminally prosecuted? In all likelihood, DYFS would have substantiated Mom for neglect at that point. Would that substantiation have been upheld? What if mom had placed the 12 year old in therapy, despite not handing him over to be prosecuted? Would that “cautionary act” have sufficed to negate a substantiated finding?

In M.D., mom followed DYFS’s rules – i.e., turning in her 12 year old to be prosecuted and not allowing him to be unsupervised with his siblings – to the tee. No matter how arduous this requirement – to make a parent offer up her preteen to the criminal justice system – mom complied. Yet, once mom followed the instruction of a mental health professional to loosen the reigns on her 12 year old … and told DYFS about it, she was penalized.

How absurd a result! But, it does make one wonder: How many parents are substantiated for nothing more than failure to follow DYFS’s orders? Who trumps – the bureaucrats running DYFS or the treating professionals working with the family? At least in this case, the Appellate Division chose the latter.

Divided Loyalties NOT Allowed by DYFS


In DYFS v. E.R., the Appellate Division upheld a finding of neglect against a parent who violated a DYFS case plan by repeatedly exposing her daughter to the mother’s boyfriend’s unwanted sexual advances. In so holding, the Court held:

Defendant’s misconduct lies in her steadfast loyalty to her paramour while ignoring her legal responsibility to protect her daughter from his unwelcome and inappropriate sexual advances.

In essence, the mother was found culpable for NOT believing her child’s allegations. But, would the result have been the same if the mother had failed to believe her daughter’s allegations against her husband, rather than her boyfriend? And what if the daughter had been prone to acting out whenever mom commenced a new relationship? Is this a case of DYFS imputing to the parent the knowledge of when abuse claims are substantiated and should be believed? And what of those cases where DYFS substantiates abuse, then later changes the finding? If DYFS can change its mind, why cannot the parent?

The answer lies in the intricacies of each case. By and large, DYFS and the Superior Court have little to no tolerance for parents who place their individual need for a partner above their child’s need to live in an environment free from physical and emotional harm. Parents, disbelieve at your own peril…

DYFS Request for Services: Treatment or Entrapment


At the inception of every DYFS case, the agency will tell the parent to engage in “services” designed to remediate the condition that led to DYFS involvement. Services cannot be ordered until a court, by way of Stipulation or Fact Finding trial, makes a finding against the parent. However, parents are often urged by the Court and by defense counsel, to submit to services immediately so that, if the parent loses at trial, they will have already completed the services necessary to be reunited with their child.

My advice as to services: “Do not go gently into that good night!” As soon as the parents put themselves into the Division’s service provider’s hands, anything they say can and will be used against them. Normal mental health conditions such as depression and anxiety often are bootstrapped to whatever the initial complaint allegation was, inexorably enlarging the allegations to be countered.

Voluntary submission to services pre-fact finding should be the exception and not the rule.