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Arthur David Malkin, Esq. - Attorney | Parsippany, NJ google-plus-logo-33-33 facebook-icon-33-33 LinkedIn_Icon_1C-30-26 Twitter_Icon_1C0-30

Defense for child abuse or neglect case cases

*THE DIVISION OF YOUTH AND FAMILY SERVICES IS NOW THE DIVISION OF CHILD PROTECTION AND PERMANENCY*

 

Very few civil matters are as serious as matters concerning abuse or neglect of children.

If DCPP (formerly DYFS) has removed your child due to an allegation of abuse or neglect, or if the court is requiring supervision of your parenting while leaving your child at home, you need to know your rights and have an experienced attorney to represent you.

 

Although the name of the agency has changed, there are no changes in the way the agency handles its functions, or in the court procedures that these cases involve.

These actions, called "Title 9" actions, usually commence with an emergency removal of a child due to a substantiated allegation of abuse or neglect, or a serious risk of immediate harm.

 

These matters are civil, not criminal, and are ex parte (meaning no summons is issued). Instead of a summons, the parents receive a notice of the removal.  

 

Once a child is removed, DCPP must bring the matter to a judge within 2 court days. Parents will be notified of the hearing and must attend. Parents have a right to counsel at such a hearing.  

 

If the parents cannot afford an attorney, they may apply to the Office of Parental Representation, who will provide a qualified public defender to represent.  

 

(I have extensive experience as a pool attorney for the Office of Parental Representation, and I accept parents who do not qualify as private clients.)

 

All parents are entitled to their own attorney, even if presenting as a couple. Some couples do not want separate attorneys, but it is a conflict to represent more than one parent in a case.  

 

This is because one parent may be the target of the complaint, and the other parent blameless. Also, the relationship between co-parents can change during the course of a case.  

 

The initial hearing, called a "Dodd" hearing is similar to a preliminary hearing in a criminal case.

 

At that time, the parent must either consent to a temporary placement, or allow the hearing to proceed, at which time DCPP only needs to prove that the removal was justified under the circumstances.  

 

In these hearings, the rules of evidence are relaxed and hearsay may be permitted. Generally, the defense attorney will have just received the papers, but will begin to challenge DCPP's case without necessarily presenting the defense case.  

 

All defendants have a right to a full fact-finding hearing which the court schedules at a later date. All defendants also should provide DCPP with names of relatives or friends who can take temporary custody, so the child is not in foster care.

 

Once the fact-finding hearing is scheduled, the attorney will discuss whether the parent should proceed with the hearing, or admit to an allegation in the complaint.  

 

Such an admission is called a stipulation and cannot be used in any court. However, a stipulation cannot be appealed, and the stipulating defendant gives up the right to administratively challenge the DCPP internal finding of abuse or neglect.  

 

If the defendant does not stipulate, the division will proceed with its proofs. If the judge makes a finding of fact that abuse or neglect did take place, the court will order services for the parents.

 

If the judge does not find abuse or neglect, the court may either dismiss the case, or at the very least, order reunification if the child has been removed.  

 

The state of New Jersey maintains a registry of individuals who have been substantiated abuse or neglect, which can be accessed in certain specific limited situations by certain employers and agencies.  

 

Once an individual's name is on the registry, it remains there permanently. For these reasons, the decision to stipulate or not is a serious decision that should not be made without the advice of an attorney.

 

In some cases, DCP cannot establish abuse or neglect, but may still intervene to provide services in the best interest of a child. Those cases can proceed under a different provision of law called Title 30.  

 

In some cases, your attorney can argue that a case should proceed under Title 30, instead of Title 9 so that the court makes no finding of fact of abuse or neglect against the parent.  

 

However, a parent can still face trial for termination of parental rights even if a child was removed under Title 30 and if the child cannot be reunited with the parent within 1 year.

 

After the fact-finding or stipulation, the court will order services recommended by the division, which are designed to help the parent remedy the issues that lead to either the removal of the child or court supervision.  

 

It is necessary that parents comply with these services as ordered, even if they disagree with them. Once a child is removed, the division has 1 year from the date of placement to come up with a permanent plan for the child.  

 

If the child is not reunited, the court may seek a plan for termination of parental rights, followed by adoption by the current relative caregiver or resource home.  

 

These time limits are required by an Act of Congress called the Adoption and Safe Families Act. This law makes it very difficult for parents to be reunited with their children, once a plan of termination of parental rights is approved.

Abuse and neglect actions

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If the court approves a plan of termination of parental rights, the court will dismiss the abuse or neglect case and DCPP will file a new action.  

 

Neither DCPP nor the court can terminate a parent's rights without that parent's consent or without a trial.

 

Most cases do not go to trial until a year after the permanency hearing.

 

During that time, DCPP is still required to attempt to reunify, and parents must continue to comply with all court ordered services.  

 

Defendants are also required to submit to psychological and bonding evaluations that are requested by the Division and Law Guardian (court-appointed attorney for the child).  

 

The defense attorney will also choose an expert to conduct a defense evaluation.

 

DCPP has the burden of proof at the trial.  DCPP must prove:

 

1. That the parent harmed the child in the past and would do so in the future;

 

2. That the parent is unwilling or unable to remedy the harm. Evidence of bonding of the child with the current caregiver may be used to document harm that might result if that relationship is terminated;

 

3. That DCPP provided all necessary services; and

 

4. Termination of parental rights would not do more harm than good.

 

These trials, called guardianship trials, are very difficult for defendants to win. It is important that an experienced attorney handle all aspects of the case.

 

Some clients, after discussing the case with their attorney, will choose to surrender parental rights instead of proceeding with the trial.  

 

This option is best in cases in which the child is in custody of a family member who is willing to adopt, because there would be the possibility of consistent contact.  

 

In most cases DCPP will offer an "identified" surrender. In those cases, a birth parent will execute a surrender having in mind only adoption by a particular person.  

 

An identified surrender, unlike a general surrender, becomes null and void if the identified person is unwilling or unable to adopt the child as planned.  

 

In that event, DCPP will notify the birth parent, and parental rights are restored pending a rescheduled trial.

Termination of parental rights

Kinship legal guardianship

The child abuse registry

Once the court substantiates a parent for child abuse or neglect, the court will forward the parent’s name to the child abuse registry.

 

If the finding was made at trial, the parent may appeal. If you stipulate to abuse or neglect, you not only forfeit your right to appeal but also to appeal the internal finding of abuse or neglect in the Administrative Law Court.

 

Placement of your name on the child abuse registry can negatively affect your opportunities for employment with organizations that provide services to children.

 

Certain individuals or entities must conduct background checks or employment-related screening of an individual who seeks employment.

 

Examples include employment in a day care center, a residential facility, or certain other such settings. Being on the registry may also limit your ability to be a foster parent or even a caregiver to your own grandchildren in the future.

 

Doctors, courts, child welfare agencies, and any person or entity mandated by law to consider child abuse or neglect information will be entitled to the information in the child abuse registry.

 

The following individuals and entities are subject to child abuse record checks:

 

  • Resource parent applicants (NJSA 30:4C-27.7)

  • Kinship legal guardians (NJSA30:4C-86)

  • Residential centers employees (NJSA 30:4C-27.22)

  • Registered family childcare app. (NJSA 30:5B-25.3)

  • DFD approved homes (NJSA 9:6-8.1)

  • Professional guardians (NJSA 9:6-8.10e)

  • Incarcerated parents (NJSA 9:6-8-10c)

  • Adoption agency employees (NJSA 9:3-4c.8)

  • Adoptive parent applicants (private or DCF) are checked. The child abuse or neglect information must be considered, but it is not an automatic disqualifier.

  • DCF employees are checked. Child abuse or neglect information must be considered. Unless the staff works in a DCF child care center or an RTC, it is not an automatic disqualifier.

  • Court Appointed Special Advocate (CASA) Volunteer (N.J.S.A. 2A:4A-92)

 

Remember, once your name is on the registry, it is permanent. So always discuss the child abuse registry with an attorney before deciding whether to stipulate or proceed to trial.

 

Every parent’s situation, and every case, is different. Your attorney will discuss your options with you in detail to help you make the right decision for your case.

Appeals

If the court has made a finding of abuse or neglect under Title 9, or if the court has terminated your parental rights under Title 30, you have the right to appeal if the judge has made those findings after a trial.  

 

You do not have the right to appeal if you stipulated to abuse or neglect under Title 9, voluntarily agreed to jurisdiction under Title 30, or if you voluntarily surrendered your parental rights under Title 30.

 

In all types of litigation in the state of New Jersey, litigants have 45 days from the date of the final order to file an appeal.  

 

However, recently the courts have required that appeals from termination of parental rights under Title 30 must be filed within 21 days.  

 

The courts have therefore created a class of litigants who are treated differently than all others in New Jersey.

 

If you wish to file an appeal, it is essential that you contact an attorney immediately.  

 

Although you have the right to present yourself on appeal, I do not recommend that you do so.

 

Appeals present complex issues, require extensive paperwork, and most litigants will not understand the factual and legal issues pertinent to the case let alone be able to articulate the arguments in writing, as is required.    

 

The appellate division must review every case that comes to it. An appeal is not a new trial but a review of your case by 3 appellate judges.  

 

The appellate division must defer to the trial judge on issues of fact unless it determines that the trial judge made a serious error.

 

However, the appellate division does not have to give similar deference on issues of law, and may determine that the trial judge applied the law to the facts incorrectly.  

 

If the court finds that the trial court made an error, it can either reverse the trial court decision, or remand to the trial court for a new trial.

 

Most cases do not go any further than the appellate division. If unsuccessful in the appellate division, a litigant can attempt to appeal to the Supreme Court of New Jersey.  

 

That is our state's highest court and it does not hear most cases that come to it. The Supreme Court decides which cases it wishes to consider.  

 

In order for the Supreme Court to consider a case, a litigant must apply for certification. The Supreme Court grants certification only to a limited number of cases involving serious constitutional issues.

 

Not all appeals are successful, and I cannot predict the outcome of appeals. However, no client can be in a worse legal position by filing an appeal.  

 

For example, if you are appealing a finding of fact against you under Title 9, a successful appeal can lead to the removal of your name from the child abuse registry, if you have not been substantiated for a prior incident.  

 

Even if you have a prior substantiation, that substantiation may be less serious.  

 

If you are appealing from an order terminating your parental rights, the court may reverse that order or remand (send back) the case for a new trial.

 

What I can do in DCPP cases:

 

As an experienced lawyer, in DCPP defense, I can:

 

  • Analyze your case and make arguments on your behalf;

  • Discuss your case with the other attorneys involved;

  • Receive court reports that are not available to pro se litigants;

  • Arrange for experts to conduct defense evaluations;

  • Advise you whether to stipulate or not;

  • Review all the pieces evidence against you;

  • Thoroughly prepare your case for fact-finding or trial;

  • Discuss alternatives to termination of parental rights, such as an identified surrender;

  • Advocate for kinship legal guardianship, when appropriate.

 

What you need to do to achieve success in your case:

 

Parents involved in DCPP litigation experience a variety of emotions. Often these emotions include anger directed at the division, as represented by the case worker.  

 

Other emotions can include desperation and a feeling of helplessness. But there is no benefit from being angry, because if it is misdirected at DCPP, parents can harm their case.  

 

No situation is desperate. As long as the client focuses on the necessary services, the attorney can present your case in a favorable light and can help you.  

 

Although every case is different, in my experience I have seen lots of clients help or hurt themselves during these cases.  

 

Based on my observations, I can provide the following tips that can benefit every client:

 

Comply with all court ordered evaluations and services even if you do not agree with them. Remember your goal is to get your child back and get your litigation dismissed.  

 

If you think the services are not helping, your attorney can raise the issue.

 

Do not use alcohol or illegal drugs! If you have a problem, you need to address it. Nothing good ever happened to anyone because they used illegal drugs.  

 

Even if you do not think you have a problem with alcohol, the fact that DCPP is in your life should be a reason to stop.  

 

DCPP can assist clients in getting treatment when necessary, but it is up to the parent to follow through.  

 

At the very least, you may need to attend AA/NA and you may be ordered to do so. If so, keep all your meeting slips and show the worker.  

 

You may also be ordered to attend an outpatient, intensive outpatient, or in some cases, inpatient treatment.

 

Do not allow anyone with a criminal, drug, or DCPP history to live with you!

 

If single, do not initiate a new romantic relationship. If your significant other has a criminal, drug, or DCPP history, it can harm your case even if you are compliant.

 

Maintain employment, or if unemployed, enroll in school. The court wants to see that the parent can financially support the child.  

 

If looking for work, keep detailed records of your job search.

 

Never miss a required court appearance or visit with your child! Judges look negatively on clients who fail to appear in court.  

 

Your child wants to see you, and will be upset if the visit is scheduled and missed. Discuss any transportation issues with your caseworker and attorney.

 

Maintain a proper appearance. Always bathe or shower before attending court and dress appropriately. If an outfit is inappropriate for a house of worship, it is not suitable for court either.  

 

You won't be going to court that often, so just 1 or 2 "good outfits" are necessary.

 

This should be obvious, but remember, the judge will only be seeing you for a few minutes every few months while your case is going on, and it does not take much time to make a good (or bad) impression by the way you look.

 

It is also very important to keep your child clean, especially when DCPP is supervising your parenting. If DCPP sees that your child is dirty, they will note that in their records.  

 

In extreme cases, DCPP might remove a child for neglect if they find serious hygiene issues. Babies and toddlers should be bathed as often as needed.  

 

Once your child is old enough for school, you should clean him/her every day - no exceptions - even if he/she does not appear dirty.  

 

It is better to be strict when your child is young because he/she will need more hygiene by the teenage years.  

 

Teaching your child proper habits early is the best way to avoid battles over hygiene when your child becomes a pre-teen.  

 

I have had cases involving adolescents who refused to bathe.

 

Also make sure your living space is clean and uncluttered.  Caseworkers will make announced and unannounced visits to your home.  

 

I recommend that DCPP clients do not keep pets in the home, especially cats. Many caseworkers have claimed that the parent's home smelled from the presence of cats. If you must smoke, smoke outdoors only.  

 

Do you really want DCPP to record that they detected an odor of tobacco in your home, on your child, or on you? Remember, DCPP wants to see a home that is suitable for your child to live, so present it that way.

 

If your child is with you, and you used physical discipline in the past, please refrain from doing so. There are other methods to discipline children.

 

If your child's behavior is a problem, it is best to address it therapeutically.

 

Never use abusive language or obscenity to a caseworker, or anyone connected with the case (including your attorney).

 

First of all, your attorney is trying to help you. You may think you are letting off steam, but you are creating a negative impression.

 

I have told clients, "If you are talking to the caseworker the way you are talking this way to me, you may be causing a problem with your case."  

 

It is good to get out of the habit of using that language, even though you may be frustrated with the case. It's okay to be frustrated.  

 

If you must use that language to vent, do it in private. When in public, don't use any language that you wouldn't hear on free network television!

 

Although you should always be courteous with the caseworker, it is not appropriate for the caseworker to discuss legal issues relating to your case.  

 

Those issues should be discussed through attorneys. It is okay to politely tell the caseworker not to discuss these issues, especially if the worker is seeking an admission of abuse or neglect, or is attempting to advise you regarding permanency or the possibility of termination of parental rights.  

 

It is also okay to say to a caseworker that you wish for your attorney to review a document before signing it. I tell my clients that I am always willing to do so.  

 

In short, it is best to be cooperative, but let your attorney take the hits for you. It is better for DCPP to see the attorney as "adversarial," not you.

 

In some instances, DCPP will request family team meetings to discuss your progress. It is okay to agree to these meetings, but please understand that these typically occur without lawyers present.  

 

Although you can request that your lawyer be present, this would require DCPP's attorney and the law guardian to be present too.  

 

I believe that these meetings without lawyers can be helpful, but the topic should be limited to services for your family, and not legal issues.

 

Make a journal documenting all your phone calls (attempted or completed) with caseworkers and service providers, and keep a calendar of court dates, visits, and all appointments for services.

 

Keep in touch with your attorney as needed. Always make sure your attorney has a current street address and a working phone number for you.  

 

My office is accessible by mass transit, and I am willing to meet with clients at alternate locations (such as the courthouse or any regional public defender's office) if that is more convenient.

 

Most importantly, listen to your attorney's advice! Your attorney is the only person in the courtroom whose primary concern is the parent, not the child.

 

Note: I accept clients who do not qualify for the services of the public defender. All private clients therefore need to sign a retainer, and are expected to pay a full fee.

parental defense Scale Child Abuse Child Neglect termination of parental rights Kinship