New Jersey Divorce and Family Lawyer BlogI 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. 
Unlike the first two, the second two findings are a determination that a child has been abused or neglected. A finding of Established means that the Division has determined that a child has been abused or neglected, but after consideration of certain aggravating and mitigating factors, a finding of substantiation is not warranted. Although a finding of Established is not reported by the Division upon request, there are certain instances where an individual may be required to report that a finding of Established has been made against them. Additionally, the records of the investigation and finding will be permanently maintained by the agency. Finally, a finding of Substantiation is the most serious of the findings and means that a determination has been made that a child has been abused or neglected and either an absolute condition exists or the aggravating and mitigating factors do not warrant a downgrade. If a finding of Substantiation is made, the perpetrator will be placed on the Child Abuse Registry Index (CARI) and the finding will be disclosed by the Division in the event of a CARI check. With both an Established and a Substantiated finding, an individual has a right to an administrative appeal, which includes a full hearing, but an administrative hearing must be requested within 20 days of receipt of the finding.
In addition to investigating and making findings regarding allegations of abuse or neglect, the Division may remain involved with your family to provide what it deems to be necessary services for the benefit of the family. If the Division determines during the course of its investigation or in attempting to provide services thereafter, that court involvement is necessary, either to force compliance with services or to remove the children, the agency may choose to initiate litigation.
So, the short answer to the question of whether it is necessary to retain legal counsel if the Division has not yet taken a family to court is Yes. The Division is an administrative agency with quite a bit of authority and autonomy to make decisions. Those decisions, even if you are not being taken to court, can have significant impacts on you and your family. Moreover, Division involvement does not always end with the end of the investigation. The agency may be involved with your family for quite some time.
Retaining an attorney when the Division is involved with your family on an administrative level has several benefits. First, it provides you with access to legal advice every step of the way, ensuring that you are protected and that you know what your rights are. Additionally, an attorney often has the ability to speak to the Deputy Attorney General (the attorney that represents the Division) on your behalf, providing you with legal representation that may have the benefit of limiting your exposure and the extent to which and duration of time the Division is involved with your family. While having an attorney is certainly not a guarantee of any particular outcome, the sooner in the process legal counsel is retained, the better.
Investigations by and involvement with the Division of Child Protection & Permanency can be frightening and overwhelming. I have extensive experience representing parents and individuals involved with the Division both in court and out of court. Should you find yourself involved with the Division, the law firm of Yudes Family Law is here to help you.
The Division of Child Protection & Permanency v. YOU
