New Jersey Criminal Defense Attorney Blog

DYFS v. R.M./In the Matter of I.L., C.L., and I.T., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 19 (February 5, 2010) - "Defendant R.M. appeals the order of the Family Part denying her application for the entry of a 'suspended judgment' as the disposition of the complaint filed by plaintiff New Jersey Division of Youth and Family Services (Division) charging her with child neglect as defined by N.J.S.A. 9:6-8.21.

This appeal requires us to determine (1) the criteria for application of the 'suspended judgment' provision of N.J.S.A. 9:6-8.51(a)(1); and (2) whether successful completion of a period of suspended judgment necessarily leads to the removal of the underlying finding of abuse or neglect from the central registry maintained by the Division pursuant to N.J.S.A. 9:6-8.11....

In summary, we conclude that the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) is generally applicable when a Family Part judge has held a dispositional hearing and is not prepared to enter an order returning the child to the parent or placing the child with the Division, but instead proposes to give the parent an opportunity to maintain the family unit based upon adherence to the particular remedial requirements established pursuant to N.J.S.A. 9:6-8.52(a).

We also conclude that successful completion of a period of suspended judgment does not result in expungement of the underlying finding of abuse or neglect. [W]e find no basis to conclude that the Legislature intended the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) to provide the equivalent of PTI in abuse and neglect cases.... Finally, we affirm the order on appeal, based upon our conclusion that a suspended judgment was not a viable option at the time the order was entered and that, in any event, the Family Part judge did not abuse his discretion...." (Carol Willner, Designated Counsel,for R.M.; Amy Vasquez, Designated Counsel, Law Guardian)
http://www.judiciary.state.nj.us/opinions/a2081-08.pdf

DYFS v. L.L./In the Matter of T.L., ? N.J. ?, 2010 N.J. LEXIS 149 (February 24, 2010) - Denial of motion to vacate kinship legal guardianship affirmed. "We hold that pursuant to N.J.S.A. 3B:12A-6(f), prior to the vacation of a kinship legal guardianship judgment, the court must find by clear and convincing evidence both that the parent has overcome the incapacity or inability to care for the child that led to the original guardianship proceedings, and that termination of kinship legal guardianship is in the best interest of the child. We additionally hold that the party seeking to terminate the kinship legal guardianship has the burden to prove by clear and convincing evidence each of those two criteria." (T. Gary Mitchell, D.P.D., for L.L.; Melissa R. Vance, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/supreme/A6808DYFSvLL.pdf

In this recent NJ DYFS guardianship complaint, the court held that the defendant's late appeal should be denied where the child in question had already been adopted.

DYFS v. J.C. and T.S.L./In the Matter of J.D.L.C., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 24 (February 11, 2010) - Motion for Leave to Appeal termination of parental rights out of time denied.

"The judgment in question was entered on August 18, 2008, and the child was adopted on July 17, 2009 -- nearly sixteen months and more than four months, respectively -- before the filing of the motions at hand.

Notwithstanding that we liberally grant such motions in guardianship appeals, see N.J. Div. of Youth & Family Servs. v. R.G., 354 N.J. Super. 202 (App. Div. 2002), we conclude that defendants' extraordinary delay coupled with the child's adoption requires denial of defendants' motions....

We find OPR's delay in seeking leave to file a notice of appeal to be unreasonable even when judged by our expansive approach in guardianship appeals. Considering the overarching goal of permanency for children caught up in such litigation, ... , it would simply be unconscionable for this court to permit an appeal at such a late date....

The policy that adoption creates a new family unit without fear of interference from the child's natural parents would be disserved if we were to permit the filing of defendants' nascent guardianship appeals at this late date." (Richard Foster, A.D.P.D., for J.C. and T.L.S.)
http://www.judiciary.state.nj.us/opinions/a1683-09a1684-09.pdf

DYFS v. M.D.C. and R.C./In the Matter of B.M.C., unpublished opinion, App. Div. Docket No. A-5579 and 5655-07T4 (December 9, 2009) - Order terminating parental rights reversed, case remanded. The trial court's decision contained insufficient and inaccurate factual findings with respect to the four prongs of N.J.S.A. 30:4C-15.1(a).

In particular, NJ DYFS failed to obtain a bonding assessment with the child's foster parents before concluding that termination would not do more harm than good. The absence of any evidence that DYFS made any effort to investigate and assist defendants in addressing whatever problems caused them to lose their housing negated the finding that it made reasonable efforts to provide services to defendants. (Michael C. Wrobleski, Designated Counsel, for M.D.C.; Durrell Wachtler Ciccia, Designated Counsel, for R.C.; Jeffrey R. Jablonski, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/a5579-07a5655-07.pdf

The Law Office of Anthony J. Vecchio, LLC has unique experience representing parents whose family's are involved with DYFS. In many cases, the story unfortunately ends with DYFS petitioning the courts for guardianship of the children at issue. This can result in the sometimes tragic termination of the parents parental rights to their children. The following describes the legal standard which DYFS must meet in such cases.

A parent's interest in the care, custody and control of her children is a fundamental liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution, as well as the New Jersey Constitution. Meyer v. Nebraska, 262 U.S. 390; 43 S.Ct. 625; 67 L. Ed. 1042 (1923); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).

This right, however, is not absolute and must be "tempered by the State's parens patriae responsibility to protect the welfare of children . . . . [that] is achieved through the best interests of the child standard." K.H.O. at 347. The best interests standard was codified in N.J.S.A. 30:4C-15.1(a) and sets forth the four prongs that DYFS must demonstrate before the termination of parental rights is proper.
Specifically, N.J.S.A. 30:4C-15.1(a) provides that termination of parental rights is only appropriate where DYFS demonstrates, by clear and convincing evidence, that:
(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) The division 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) Termination of parental rights will not do more harm than good.

N.J.S.A. 30:4C-15.1.

To carry the burden under this statute, DYFS must "demonstrate clearly and convincingly that 'the child's best interests will be substantially prejudiced' if parental rights are not terminated." In re Guardianship of J.C., 129 N.J. 1, 8 (1992) (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 340-41 (App. Div. 1969)). As such, "strict standards must be satisfied." In re Adoption by D.M.H., 135 N.J. 473, 481, cert. denied, 513 U.S. 967, 115 S.Ct. 433, 130 L. Ed.2d 345 (1994); accord In re Guardianship of K.L.F., 129 N.J. 32, 37 (1992). "[A]ll doubt must be resolved against termination of parental rights." K.H.O. at 347.

The following DFYS appeal was recently decided by the Appellate Division, finding that a defendant's failure to appear at a factfinding hearing does not warrant a default to be entered when the defendant's attorney appeared on her behalf and the defendant did not violate any court order. Summary by Mark Friedman.

DYFS v. P.W.R., L.C., AND C.R., Jr./Matter of A.R., ? N.J. Super. ?, 2009 N.J. Super. LEXIS 241 (November 19, 2009) - "The judge in this Title 9 action defaulted a defendant because she did not attend the factfinding hearing even though her attorney appeared to represent her interests.

We conclude that, unless warranted by defendant's failure to comply with a prior order and the potential for default was adequately noticed, a judge is not authorized to enter a default in this circumstance. However, because the default had no meaningful impact, we affirm.... A default based upon the failure to comply with an order requires as a predicate that the defendant received adequate notice that default may follow a failure to comply....

As we have explained, the prior order did not indicate that defendant would be defaulted if she failed to appear for the factfinding hearing. Moreover, even if it were possible to parse the language of the prior order in a way that would suggest otherwise, a court should not enter default when fundamental fairness counsels against it....

In urging that we uphold the judge's decision to enter default in this case, the Division relies upon N.J.S.A. 9:6-8.42, which declares that '[i]f the parent or guardian is not present, the court may proceed to hear a complaint under this act only if the child is represented by a law guardian.' Proceeding in a party's absence is not the same as entering default....

As the judge declared in entering default here, defendant was precluded from putting on 'an affirmative case.' What the judge meant by this was not defined, but the common understanding attributable to this phrase would suggest that the default barred defendant from calling witnesses or offering other evidence. Such a ruling was not authorized or remotely suggested by N.J.S.A. 9:6-8.42." (Mary Potter, Designated Counsel; Melissa R. Vance, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/a1060-08.pdf

The following appeal was recently decided pertaining to DYFS cases and finding that corporal punishment, under the facts, did not constitute abuse or neglect. Summary by Mark Friedman.

DYFS v. E.G.P. and C.P., unpublished opinion, App. Div. Docket No. A-1238-08T2 (November 6, 2009) - Order finding substantiated abuse and placing E.G.P.'s name in the child abuse registry reversed.

"In departing from the ALJ's finding of no excessive corporal punishment, the Director specifically noted the eye injury to C.J. and the apparent force used to paddle both girls, evidenced by the fact that the paddle broke during the paddling. A finding of excessive corporal punishment inflicted upon C.J. and Z.J. does not, however, complete the definition of abuse or neglect under N.J.S.A. 9:6.8-21.

Rather, 'as a part of its burden of proof, [in abuse and neglect cases] the State must still demonstrate by a preponderance of the competent, material and relevant evidence ... the probability of present or future harm.' N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004). This burden is met with proof that C.J. and Z.J. suffered physical, mental or emotional impairment or the risk thereof as a result of E.G.P.'s actions. N.J.S.A. 9:6.8-21(c)(4)(b).

The ALJ expressly found no such impairment or risk of impairment, determining that the incident was 'isolated,' the injuries were not serious, and there was no impairment or 'imminent danger of becoming impaired.' The Director did not reject these factual findings and in fact agreed that the actual harm to the teenagers was not 'critically severe.'

While we discern no basis to disturb the Director's finding that E.G.P.'s action constituted excessive corporal punishment, the absence of proof of the 'probability of present or future harm' to C.J. and Z.J., who were adults by the time of the hearing, renders the Division's proofs lacking as to an essential element in the definition of abuse or neglect.... As such, we are constrained to reverse." (Drew A. Molotsky)
http://www.judiciary.state.nj.us/opinions/a1238-08.pdf