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.

Spanking + Accidental Injury = Child Abuse


When parents ask, “Is it ‘child abuse’ to spank my child”, the answer on paper is no. New Jersey prohibits “excessive” corporal punishment, thereby clearly permitting corporal punishment that is not excessive. See, N.J.S.A. 9:6-8.21(c); N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510-11 (App. Div. 2010).

However, the Appellate Division’s interpretations of the K.A. case, the first published opinion to provide a framework to evaluate conduct and consequences that will render corporal punishment to be “excessive”, clearly show that our courts have little to no tolerance for parents who accidentally “injure” a child during the course of a spanking. The most recent unreported decision that demonstrates this point is New Jersey Division of Youth and Family Services v. R.S., A-0074-11T4 (OAL Docket No. AHU 09-1698).

In R.S., the grandmother of a five year old child spanked him on the behind and legs with a belt due to the child’s aggressive behavior toward his teacher. During the course of the spanking, the child squirmed and the belt accidentally hit the child in the face, causing a mark. The Appellate Division concurred with DYFS that this constitutes child abuse, calling the spanking “willful and wanton” misconduct, i.e., reckless.

What made this spanking “reckless”, rather than merely “negligent”? The grandmother should have foreseen that the child would attempt to evade the spanking because he had recently gotten into trouble at school for running away from his teacher. Applying this standard, any child who does not passively and peacefully accept a spanking – i.e., the children who likely need the discipline the most – cannot be spanked absent a finding that the “perpetrator” was “reckless” for using this form of discipline.

The Appellate Division also considers the use of the belt to be of significance. In K.A., the mother balled up her fist and punched her child repeatedly in anger and frustration. This form of discipline was merely “negligent” because it did not cause a visible mark and was considered an “ill-conceived impulse”. Yet, a grandparent who makes a conscious decision to obtain a belt and administer discipline is said to have assaulted the child.

The age of the child was also a distinguishing factor. In K.A., the child was age 8. The Appellate court in R.S. also mentions the P.W.R. case involving a slap in the face of a 16 year old stepchild. Apparently, one should anticipate that a 5 year old will seek to avoid discipline – i.e., squirm when spanked – but that same expectation does not attend to a rebellious teenager.

Perhaps the ruling in K.A. would have been different had the mother taken time to obtain a belt to spank the child on the legs – a clear no-no – rather than simply exploding with multiple punches to the shoulder – a area much closer to the child’s face, the area of concern in this R.S. case.

I speak somewhat tounge-in-cheek to illustrate this point. In reality, spanking occurs in households across New Jersey. What distinguishes one spanking from another when determining if corporal punishment is “excessive” varies from case to case, but generally, these guidelines apply:

1. If you spank, better to use a hand than an object.

2. Spanking is better left to severe mis-behavior – not your run-of-the-mill unruliness, lack of respect, non-compliance or impulsivity seen in children.

3. Try NEVER to leave a mark, bruise, cut, welt, depression, or redness – no matter how faint, no matter how inadvertently caused, no matter where located.

4. If ANY mark is left, better left on lower extremities than near the face.

5. If the child is seen for medical treatment — even if only when sought by DYFS — the child’s report of pain will be considered an additional harm in and of itself.

(This is akin to a judge relying upon a child’s report of feeling “sad” when they overhear parents’ arguing to support a finding that the child’s emotional state is “impaired” by parental conduct. Any discomfort or unpleasantness experienced by a child can and will be used against the parent to bolster a finding of abuse.)

So, the best advice for parents in New Jersey is simply do not spank… or if you do, make sure no marks can prove than you did.

Life (and the law) would be much clearer if the New Jersey legislature would enact legislation banning spanking. Whether we agree with that policy or not, it would provide parents with clarity in terms of what can and cannot be done to modify children’s behavior – rather than causing our judiciary to impute far-reaching assumptions to parents (e.g., that a child will squirm and likely be hit with a belt in his face rather than his legs because he once ran away from a teacher when being disciplined) as a means to qualifying their conduct as “reckless” rather than merely “negligent”.

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.

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.

Parental Alienation will NOT be included in DSM-V


Despite aggressive advocacy to accomplish the feat, the American Psychiatric Association has declined to identify Parental Alienation Syndrome (PAS) as a separate, diagnosable mental health disorder.

“The bottom line – it is not a disorder within one individual,” said Dr. Darrel Regier, vice chair of the task force drafting the manual. “It’s a relationship problem – parent-child or parent-parent. Relationship problems per se are not mental disorders.” Opponents to including PAS in the Diagnostic and Statistical Manual of Mental Health Disorders-Fifth Edition (DSM-V) also say that including the diagnosis would increased the cost and litigiousness of some high conflict litigants, as it would have provided another opportunity to debate whether one does or does not suffer from this very specific diagnosis, and if so, what degree of culpability can be assigned to the individual and what treatment modalities should be employed beyond those assigned to other diagnosable mental health ailments which the parent faces.

For a review of the varying opinions regarding this issue, check out this article discussing the recent news:

http://www.huffingtonpost.com/2012/09/21/parental-alienation-is-no_n_1904310.html

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.

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.