The following is an overview and summary of a process which is complex and absolutely requires that every parent or guardian accused of child abuse get a lawyer as soon as possible in the process to protect their parental rights.
Most people have heard of DYFS (New Jersey Division of Youth and Family Services) which is now called Division of Child Protection and Permanency. Despite its name change, most people commonly refer to it as DYFS. Regardless of what you call it, DYFS exists to investigate cases of alleged child abuse and neglect.
If DYFS files an abuse or neglect case involving a child their goal is usually to remove the child from the home and put the child in foster care or some other out of home placement. The definition in the law of abuse and neglect is based on the parent or guardian putting the child in a situation of imminent risk of harm or allowing someone else to. Examples of abuse and neglect follow:
- causing serious physical or emotional harm to the child
- creating a risk of physical harm to the child
- sexually abusing the child
- failing to take proper care of the child resulting in harm to the child
- using excessive corporal punishment
- abandoning the child.
The Investigation Process
Anyone can report suspected abuse or neglect of a child by calling the DYFS child abuse hotline at (877) NJ ABUSE. This hotline is open 24/7, 365 days a year. A key feature of the hotline is that callers can remain anonymous. DYFS must investigate every claim of abuse or neglect. This can lead to fraudulent claims of abuse which often arise in the divorce process or because an in-law doesn’t like the parent or guardian.
Many professions such as doctors, nurses, teachers, day care workers and the like have a statutory duty to report suspected child abuse.
Until April 1, 2013, DYFS’s investigation would only result in a finding of substantiated or unfounded. Two new categories were added; not established and established. Unfounded means that their investigation of an allegation of abuse and neglect resulted in their finding that the allegation was unfounded. This finding typically ends their involvement. Not established means that DYFS did not find abuse or neglect but found that you may have exposed your child to harm or risk. Established means that there were signs of abuse or neglect but not sufficient evidence to warrant any intervention by DYFS. Substantiated means that there were clear signs of abuse and neglect.
Once a “substantiated” finding is made by DYFS they have a right to remove the child from the home without a court Order if they believe that there is an imminent risk of harm to the child to remain with the custodial parent or guardian. When the child is removed without parental consent DYFS must notify the Court and a hearing must be held within two days of the removal in Court to determine if the child shall remain in the care and custody of DYFS. In general, Judges rule in favor of DYFS at this emergency hearing which is commonly referred to as a Dodd hearing (named after the legislator who sponsored the bill allowing the removal without Court Order). Typically, a host of conditions are attached to the resulting Order which limits the parent’s contact with the child.
Once a “substantiated” finding is made the parent is placed in DYFS’s Central Registry which will color any subsequent dealings with DYFS.
The Court process involves the following hearings:
- Preliminary hearing: DYFS has the burden of proving abuse and neglect and must show good reasons to continue its case and the Judge decides if the child should remain with the parent while the case continues or whether an out of home placement is necessary.
- Fact-finding hearing: If the parent doesn’t stipulate that he or she abused or neglected the child, then a hearing is held where the Judge determines if DYFS has met its burden of proof to show that the abuse or neglect took place. At the hearing, testimony is taken and exhibits are introduced into evidence. The parent has a right to testify and must do so to rebut DYFS’s claims.
- Dispositional hearing: If the Judge determines at the fact finding hearing that the parent abused or neglected the child, at this hearing the Judge decides what happens next in terms of where the child shall live and what services are provided by DYFS.
- Review hearing: After the dispositional hearing the Judge will bring the matter back to court once or twice to see how the child is doing.
Critical Additional Information
If the child has been out of the home for a year in foster care, DYFS may commence a proceeding to terminate parental rights. In addition, if a child is in foster care, it is likely that the County Welfare Agency will seek an Order for the parent to pay it child support using the child support guidelines which are used in divorce cases.
You need a lawyer to push back against DYFS which relies on its case workers to investigate and make recommendations concerning both your child and your status as a viable parent. While its goal is family unification, this often does not occur due to its interpretations of what is “best” for the child.
DYFS’s mistakes and errors in judgment should not prejudice your rights as a parent to decide what is in your child’s best interests.