New Jersey Family Law Case Review: DYFS v. I.S., in re: S.S. and N.S.

   

            In this case, a single mother raising behaviorally challenged twin girls sought the assistance of child services, DYFS, and ended up losing custody of one of the girls to her ex-husband. 

           

            The mother, who was a nurse, struggled with raising her daughters alone after the mother and father divorced. She sought assistance from the Division of Developmental Disabilities (DDD), but she felt that their services were inadequate. As a nurse, she observed many families with similar problems receiving better services from DYFS. She was informed by someone from the DDD that, if the girls became overwhelming, she could seek DYFS’s assistance by bringing the girls to the emergency room, which she eventually did.

            DYFS took supervision of the twins and placed them in an residential facility, which is what the mother wanted, however, their intervention did not end there. Once DYFS obtained supervision of the children, it was hesitant to return the girls to their mother’s care.  One of the girls, S.S., in particular.

            After S.S. was released from the residential facility, she moved in with her father in Pennsylvania. The court eventually granted the father custody of S.S. and declined to order visitation with the mother, under the “best interests of the child” standard found in Title 30 of New Jersey Statutes. The court maintained jurisdiction over these children, even though DYFS did not prove or allege that the mother had abused or neglected the girls. The court found that its continued supervision was warranted in this case, despite the lack of abuse or neglect.

            The Appellate Division upheld this use of a “hybrid” proceeding, with elements of a Title 9 abuse and neglect case and elements of a Title 30 proceeding to terminate parental rights. The appellate court interpreted N.J.S.A. 9:6-8.50c, which states:

"If facts sufficient to sustain the complaint under [Title 9] are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal." 

as allowing a court to retain supervision of a case if:

            1) Facts sufficient to sustain the complaint are established

                        or

            2)  The court concludes that its assistance is required.

even though the statute states that the case shall be dismissed if either of those conditions are not met. In this case, since DYFS had not established “facts sufficient to sustain the complaint under [Title 9]” the court should have “dismiss[ed] the complaint and [stated] the grounds for the dismissal." N.J.S.A. 9:6-8.50c.

            Nevertheless, this case demonstrates the discretion that courts and DYFS will exercise to protect children that come under their care- even if the children are brought there voluntarily by a parent seeking assistance. The take home for us is that we need to be cautious when dealing with government agencies. This mother was at the end of her rope and it is a good thing that she had DYFS to turn to for assistance- at least her children finally received the help that they needed and were doing much better at the time of this opinion.  But that assistance came at a cost the mother did not anticipate- she lost custody of one of her daughters. Now the daughter did not end up in foster care or a group home, she is with her father now, and again, doing very well. But just beware that even if you seek help from DYFS voluntarily, and even if you have not abused or neglected your children, you may not retain as much control over the situation as you would like, and you may experience unintended consequences.

New Jersey Family Law Case Review: DYFS v. A.R.

New Jersey Division of Youth and Family Services v. A.R., Doc. No. A-3161-10T4 (App. Div. May 10, 2011).
- Abuse and Neglect, Division of Youth and Family Services

This case, like so many family law cases, is tragic. The unusual aspect of this case, I am afraid, is that it could happen to anyone who suffers a quick lapse in judgment. The trial court found that defendant's actions did not amount to gross negligence, but the appellate division disagreed.

After a night out with family and friends, a father, J.H., and his girlfriend returned home with their children, including ten-year-old Anna and ten-month old James. Long after Anna had fallen asleep, J.H. put James into the bed with her, without waking her up. The bed was a twin bed with no guards or railings along the sides.

The next morning, Anna awoke and told the adults that there was something wrong with James. He had fallen out of the bed in the middle of night and landed next to a hot radiator. James was taken to the hospital and treated for severe burns.

In a criminal matter based on these circumstances, J.H. pled guilty to child neglect. In this action brought by DYFS, a family judge found that defendant's conduct did not rise to the level of child neglect or abuse under Title 9 of the New Jersey Statutes.

The Appellate Division disagreed. It restated the standard for what conduct constitutes "gross negligence" rising to the level of child neglect: "Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes." The court found that defendant's actions here did amount to gross negligence because an ordinarily reasonable person would have understood the danger inherent in leaving a ten-month-old child on a bed with no railings near a hot radiator.

The lesson, of course, is BE CAREFUL! Caring for infants can be particularly trying because of the lack of sleep that goes hand-in-hand with children of that age. This lapse in judgment occurred at 2 am, after the child had just woken up. Nonetheless, we must always be aware of the dangers surrounding our children, and look out for potentially serious consequences.

Here, although J.H. and James were not at their home, the court noted that J.H. took James from his car seat, where he had fallen asleep, and placed him in the bed, surrounded by blankets. Car seats make great cribs when you are away from home!

New Jersey Family Law Case Review: DYFS v. KLW

New Jersey Division of Youth and Family Services v. K.L.W., Doc. No. A-5178-09T3 (App. Div. May 3, 2011).
- Termination of Parental Rights, Division of Youth and Family Services

In this case the Appellate Division reversed the termination of these parent's parental rights with respect to their daughter because the division failed to "initiate a search for relatives who may be willing and able to provide the care and support required by the child" as required by New Jersey law.

The child in this matter, Angela, was removed from her mother's care after she tested positive for cocaine at birth and the mother admitted that she did not have the resources to care for her. Although Angela's mother and father both provided relatives for the division to consider for foster care, DYFS placed Anna with an unrelated single woman who had already adopted two other children, Mrs. L. In time, Mrs. L. sought to adopt Angela as well.

Despite numerous efforts by Angela's parents and their family to have Angela placed with a relative, the division never removed her from Mrs. L. At the time of the guardianship proceeding, the court found that Angela was bonded to Mrs. L, but not to her natural parents. The court terminated the parents' parental rights, freeing Angela for adoption by Mrs. L.

The Appellate Division reversed this decision, stating that the division failed in its obligation to "initiate a search for relatives who may be willing and able to provide the care and support required by the child" under N.J.S.A. 30:4C-12.1.

One great difficultly with these situations is balancing the goal of reunification with the natural desires of foster parents to adopt children with whom they have bonded. Foster families are, generally, wonderful and selfless people who sacrifice much to help children and families in need. Sometimes, this desire to help can become clouded by the love that they naturally develop toward the often helpless children under their care. After all, when reunification occurs, foster parents are asked to return the children that they have loved and protected to the people or person who abused or neglected the child in the first place. Since they are usually not allowed to meet the natural parents, all that a foster parent knows about a natural parent is the result of the abuse or neglect inflicted upon the child with whom the foster parent is entrusted. In this case, all that Mrs. L knew about Angela's mother was that she used cocaine while pregnant with Angela. How can we expect her to give "her child" back? (The movie, "Losing Isaiah" demonstrates this beautifully).

That is why extended family is so critical in these situations. Family members that know and love both the mother and the child are able to balance their love for the child with their desire for the mother's rehabilitation. Perhaps they knew the mother before she got into trouble, and desire to help her return to that place of functionality. They love and care for the child, but maybe they realize that the best thing for the child is to see his mother get her life back and become the great mother that she was meant to be.

Therefore, it is important for everyone involved in involuntary removal situations to involve the child's extended family. First of all, have good relationships with your family members! Right now, call your mother and tell her that you love her. Do the same for your father and any sisters, brothers, aunts, uncles, cousins, nieces, nephews, and anyone else you can think of. You will never get another family, and you never know when you will need them or they will need you. Make sure those relationships are strong and healthy now, before an emergency arises.

Second, if child services does remove your children, give them the names and contact information of every person on earth that is related to you. Then call those people first! Fully explain the situation to them, including what you did to get yourself into this mess, and promise them that you will change (and mean it) and beg them to help you! In this case, Angela's mother did not recommend her mother to the division because she had not told her mother that she had been doing drugs, and she did not want her to find out that way. That lack of communication may have cost that mother her child! Make sure the division follows up on those contacts. Stay on top of your caseworker and also contact your family to make sure that the division is contacting them. Every day that your child spends in foster care is one day too long.

Remember, the most important thing for families in crisis is family! With their help, you can get through this.

New Jersey Family Law Case Review: J.M.S v. J.W.

This case was brought by grandparents who wanted visitation with their grandchildren following adoption by relatives from the other side of the family. The trial court held that termination of the natural parents' rights also terminated the grandparents' rights and dismissed the grandparents' petition for visitation. The Appellate Division reversed.

The court stated that just because a parent's rights to his or her children were terminated, does not mean that the grandparents' rights were also terminated.  This is especially so in a case such as this, where the children lived with the grandparents for a significant amount of time.

The court recognized the strength and importance of extended family relationships- but be careful if you adopt a child from a family member.  If the child has a close relationship with family from the other side, those family members may have visitation rights under New Jersey law.

No Cause for Marijuana Case, but Enough for Child Neglect- NY Times Article

Yesterday the New York Times published an article detailing how parents caught with a small amount of marijuana may be safe from criminal prosecution, but still liable to lose their children to child services.

Child services justified the interventions claiming that minor marijuana use could be a sign of more serious parenting flaws. However, in New York, according to the article, simply admitting past use of marijuana is grounds for a neglect case.

The article stated that 12% of New Yorkers used marijuana at least once a year, with the rate among whites twice as high as that among Blacks and Hispanics. Nonetheless, child services cases were rarely brought against white families in these circumstances.

Parents- whatever you believe about the morality or criminality of even minor marijuana use, know that using or possessing ANY amount of marijuana or other controlled dangerous substances jeopardizes your children and your family. You don't want your children to be put in foster care because of something stupid like that. Consider this another of the many sacrifices that we must make for our children and our families.