Articles Posted in Abuse and Neglect

|

Valentines Day. A day that couples celebrate their love. Sending flowers with a card to one’s significant other is a common way of expressing that love. And to not be disappointed, people are encouraged to order their flowers as soon as possible to assure delivery by Valentine’s Day. One does so. But after the order is placed, the lovers become fighters and someone obtains a Domestic Violence Restraining Order against the other. In the meantime, the flower and card get delivered and the sender gets arrested and charged with criminal contempt. Was this a crime? That was the situation presented in the case of State v. J.T., 470 N.J. Super 106(Ch. Div. 2020) which was recently approved for publication.

In this case, the defendant had been charged with a contempt of a domestic violence TRO. The issues addressed by the Court was whether the defendant could be found to have “purposely or knowingly” violated the TRO by having initiated communication to a protected party prior to the entry and service if the TRO, and secondarily, whether a defendant was subject to a TRO has an affirmative obligation to attempt to recall or withdraw such communication. The Court found the answer to both questions to be negative and accordingly, dismissed the Contempt Complaint against the defendant.

In this matter, the parties had been in a dating relationship. The plaintiff had obtained a TRO against the defendant on January 31, 2020, which the defendant acknowledged had been served upon him on that date. However, one (1) week prior to the entry of the TRO, the defendant had ordered a floral arrangement for the plaintiff which was scheduled to be delivered to the plaintiff along with a card the day before Valentine’s Day, February 13, 2020. Although he had been served with a TRO which prohibited him from having any contact or communication with the plaintiff, the defendant did not stop, or take any action to stop, the floral delivery from occurring, nor did he inquire as to whether such delivery could be stopped. The flowers and card were in fact delivered to the plaintiff on February 13th resulting in the contempt charges being brought against the defendant.

Continue reading ›

|

I often get asked questions about the Division of Child Protection & Permanency, more commonly referred to by its old name, DYFS. Specializing in child abuse and welfare defense, it is not uncommon for both individuals and family law attorneys who do not specialize in this area to have questions when the Division becomes involved with a family. One frequent question is whether it is necessary to retain an attorney if the Division has not actually taken parents to court, but rather is involved with the family on what I would refer to as an administrative level.

To answer this question, it is important to understand the role of the Division of Child Protection & Permanency on at least a basic level. The Division is responsible for investigating calls alleging abuse or neglect of a child. These calls are often anonymous and there is no minimal level of proof that triggers an investigation. When the Division gets a call, they must investigate. Investigating the allegation may include coming to the family’s home and assessing for any safety concerns, speaking to both the parent(s) and the child(ren), and speaking to professionals involved with the child(ren) such as the school or daycare and their pediatrician.

Upon completion of its investigation, the Division will make one of four findings: Substantiated, Established, Not Established and Unfounded. A finding of Unfounded means there is not a preponderance of evidence that a child has been abused or neglected and the evidence indicates the child was not harmed or placed at risk of harm. Such a finding will not be reported and remains confidential, and often any Division records regarding the allegation and investigation will be eligible to be expunged after three years (understand this is not always true). A finding of Not Established again means that there is not a preponderance of evidence that a child has been abused or neglected, but some evidence indicates the child was harmed or placed at risk of harm. This finding will not be reported and remains confidential, but the Division’s records may not be expunged and will be permanently maintained by the agency. A finding of Not Established may be appealed, but only to the Appellate Division within 45 days of receipt of the finding. pexels-pixabay-236215-300x198

Continue reading ›

|

It happens in family and matrimonial disputes that litigants are investigated by the Department of abuse-300x198Children and Families, which investigate claims of child abuse and neglect.  In a recently published decision in S.C. v. New Jersey Department of Children and Families, the Supreme Court of New Jersey addressed whether findings of “not established” by he Department of Children and Families (DCF) without a hearing and without informing the investigated person of the opportunity to challenge and supplement DCF’s record violates due process.

The Supreme Court explained that since 2013, DCF could make one of four findings: that an allegation of abuse or neglect was “substantiated”, “established”, “not established” or “unfounded” pursuant to N.J.A.C. 3A:10-7.3(c).   A finding of “not established” would mean that findings are based on some evidence of a child being harmed or placed at risk of harm, but not necessarily by a preponderance of the evidence. A finding that an allegation is “unfounded” is subject to expunction.   A record has to be retained for any of the other findings. While DCF records are intended to be confidential, N.J.S.A. 9:6-810a(a) provides for circumstances in which the release of information about reports to other agencies.

In this case, a mother was accused of abusing one of her children by engaging in corporal punishment.  The incident was reported to the Department of Children and Families (DCF) after the 7 year old boy refused to make a Mother’s Day card for his mother at school, claiming that she hit him with an open hand and with a spatula.   When DCF interviewed the boy, he said that his mother “smacks” him, and that she has hit him on the bottom with a spatula, although he could not remember when that had last happened.  He also said that his father hit him with his hand.  The child’s sisters told DCF that their parents sometimes hit them with an open hand but denied that their parents hit them with a spatula.  None of the children had marks or injuries.  The children’s school principle stated that the boy’s parents were involved, that school personnel had not had concerns about the family, and that the boy had behavioral problems in the past but that his behavior had improved. The boy’s mother admitted to hitting the children with an open hand but denied hitting them with a spatula. She said she smacks a spatula on the counter to get the children’s attention.  The boy’s father admitted to spanking the children lightly, but denied hitting the children or seeing his wife hit the children with any objects.  He had seen her smack the counter with a spatula.

Continue reading ›

|

In the matter of  New Jersey Division of Child Protection and Permanency v. A.S.K. (A-50-17 ___ N.J. ___ (App. d744f80a269bdfa75c34d7830ed52c13-1-300x200Div. 2018), the New Jersey Supreme Court reviewed the trial court’s decision to terminate the parental rights of E.M.C. (“Eric”) to his son, A.E.C. (“Adam”) based on the record and the application of the best-interests-of-the-child test. Although the Supreme Court affirmed the decision to terminate Eric’s parental rights, the Court found that the Division of Child Protection and Permanency (“DCPP”) made errors regarding the inability to locate Eric, which delayed the child from receiving permanency for an additional 2 1/2 years. The Supreme Court stated that DCPP’s processes would be enhanced by conducting a new search for a parent at each phase of litigation and implementing procedures that retain a party’s past contact information.

Termination of parental rights is warranted when DCPP establishes by clear and convincing evidence that the codified four prongs of the best-interests-of-the-child test are met. The four prongs of that test are: (1) “The child’s safety, health, or development has been or will continue to be endangered by the parental relationship;” (2) “the parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;” (3) whether “[t]he [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights;” and (4) whether “[t]ermination of parental rights will not do more harm than good.”

In this case, the child, Adam, was born on November 14, 2009 and he began living with Eric in March, 2012.  Before Adam came to live with him, Eric had last seen him in July 2011. Adam lived with Eric until July 2013. During that time, DCPP received referrals in April 2012 and September 2012. Eric cooperated with both investigations. Because Adam was residing with Eric, an allegation of abuse and neglect against Adam’s mother, A.K. (“Ali”) resulting from the April 2012 referral was deemed unsubstantiated.

Continue reading ›

|

On May 3, 2018 the New Jersey Appellate  Division published the case of DCPP VS. T.D., R.C. AND R.G., IN THE MATTER OF THE GUARDIANSHIP OF M.G., B.C. AND A.G. (FG-20-0040-13, UNION COUNTY AND STATEWIDE)(CONSOLIDATED) (RECORD IMPOUNDED) (A-4918-c1b55e653e97997fd3f08500aae0ee83-225x30015T1/A-4923-15T1), an Opinion affirming the trial court’s decision to not terminate the parental rights of T.D., a mother suffering from multiple sclerosis, and R.C., the father of her two youngest children, born in 2012 and 2014, and removed from the care of their parents soon after birth.  The Appellate Division, in denying the appeals of the New Jersey Division of Child Protection and Permanency (Division), and the Law Guardian on behalf of the two young children, stated that the “United States Supreme Court has held that biological parents’ relationships with their children ‘is an interest far more precious than any property right.’ Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). Therefore, New Jersey courts protect that interest by imposing “strict standards for the termination of parental rights.” Continue reading ›

|

In the case of M.C. v. G.T., A-4781-15, decided and approved for publication by the Appellate Division on January 2, 2018, the Appellate Division addressed essentially the equitable authority of afile000799318829-2-300x200 family court judge to enter a restraining order without there being a finding of domestic violence. Continue reading ›

|

In this recent decision in the matter of New Jersey Division of Child Protection and Permanency  v. A.B., (A-27-16), the New Jersey Supreme Court reviewed a trial court’s determination that

file0001877421409-225x300

OLYMPUS DIGITAL CAMERA

defendant A.B. abused or neglected A.F. (her sixteen-year old daughter), that A.B. willfully abandoned A.F.; and that remarks attributed to A.B.’s sister, J.F., were subject to suppression as embedded hearsay. Continue reading ›

|

file0001610872997-212x300Marriage is not as popular as it once was.  Based on 2011 data available to the Pew Research Center, barely half of all adults in the United States were married, which was a record low.  In 1960, 72% of all adults ages 18 and older were married.  Contrast that with 2011, where only 51% of adults aged and 18 older were married.  In addition to higher incidences of divorce and cohabitation  in this century, as compared to 1960, another significant reason for the decline in the overall number of married adults, is that people do not marry as young now as they did in 1960.  Continue reading ›

|

On August 15, 2017, the New Jersey Appellate Division approved for publication the decision in the matter of E.S. v. H.A (A-3230-14T2 and A-3256-14T2), in which the Appellate Division addressed whether a parent may be required to admit to a crime as a condition for that parent to be able to make an application for visitation with one’s child.  The Appellate Division concluded that parents cannot be required by the state to forego their Constitutional right against self-incrimination as a condition to seek custody or visitation with their child. Continue reading ›

|

In the published opinion in the matter of Division of Child Protection and Permanency v. T.U.B. & J.E.C., (A-2565-15T2) the trial court terminated the Defendant’s parental rights in a Title 30 DSC2330-300x200guardianship case based upon the admission of hearsay statements by children about corroborated allegations of abuse or neglect pursuant to N.J.S.A. 9:6-8.46(a)(4). The hearsay statements made by the children involved allegations of sexual abuse that were later in part recanted by one of the non-testifying child declarants. Continue reading ›