Very few civil matters are as serious as matters concerning abuse or neglect of children.  If 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 in the home, you need to know your rights and have an experienced attorney represent you.

Abuse/Neglect Actions

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, DYFS 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 seperate 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 DYFS only need 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 DYFS's case without necessarily presenting the Defense case.  All Defendants have a right to a full factfinding hearing which the court schedules at a later date.  All Defendants also should provide DYFS with names of relatives or friends who can take temporary custody, so the child is not in foster care.

Once the factfinding 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 DYFS internal finding of abuse/neglect.  If the defendant does not stipulate, the Division will proceed with its proofs.  If the judge makes a finding  of fact that abuse/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 decision to stipulate or not is a serious decision that should not be made without the advice of an attorney. 

After the factfinding 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 one 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.

Termination of Parental Rights

If the Court approves a plan of Termination of Parental Rights, the court will dismiss the abuse/neglect case and DYFS will file a new action.  Neither DYFS nor the court can terminate a parent's rights without that parent's consent, without a trial.  Most cases do not go to trial until a year after the permanency hearing.  During that time, DYFS 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.

DYFS has the burden of proof at the trial.  DYFS 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 DYFS 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.

What  I can do in DYFS cases:

 As an experienced Lawyer, in DYFS 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 evidence against you;
• Thoroughly prepere your case for factfinding or trial.

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

Parents involved in DYFS 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 DYFS, 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 you 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 DYFS is in your life should be a reason to stop.  DYFS can assist clients in getting treatment when necessary, but it is up to the parent to follow through.

If single, do not initiate a new romantic relationship.  If your significant other could have a criminal, drug, or DYFS 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.

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 one or two "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.

Make sure your living space is clean and uncluttered.  Caseworkers will make announced and unannounced visits to your home.  I recommend that DYFS 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 your child is with you, and you used physical discipline in the past, refrain from doing so.

Never use abusive language 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 impresson.  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.

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 OK to politely tell he 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 OK 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 the DYFS to see the attorney as "adversarial," not you.

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

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.