NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

The Division of Youth and Services ("DYFS") is this state's prosecutorial agency for children who suffer from abuse and/or neglect at the hands of their caretakers.   DYFS is not an agency that many are or want to be familiar with.  For others, they are all too familiar with DYFS and the effect its involvement can have on their family's life.

In a recent published Appellate Division decision, the Court reminded us of the standard of proof to be demonstrated by DYFS in a proceeding where they are seeking to terminate a parent's rights to a child.  In DYFS v. A.R., A-5079-07T4, decided March 4, 2009, the Court set forth a detailed opinion and case history where DYFS failed to meets its burden of proof and thus lost its application to terminate the parental rights of A.R.

Some brief background of this case involves A.R. and her four children.  A.R.'s involvement with DYFS began in 2005, when the children were first removed from the home.  A.R. was married to an individual who was a known crack cocaine user.  A.R. herself had been a crack cocaine user but had entered and completed a rehabilitation program and was sober at the time this opinion was rendered.

After the first removal of the children in 2005, several months later the trial court entered an Order allowing for reunification.  This reunification did occur.  Not but two months later, the children were again removed as A.R. had allowed her husband back into the home and to be with the children while he was actively using drugs.  Two months after this removal, reunification was once again ordered.  One month later, the children were removed for a third time because A.R.'s husband was found in the house high on crack cocaine.  This time the children were placed under the care and supervision of DYFS and a law guardian was appointed.

DYFS filed a complaint for guardianship of the children.  At a hearing, the trial court ordered a bonding evaluation, which never took place.  A trial took place over a two month period.  The trial court denied the termination and guardianship application stating that DYFS did not satisfy its burden of proof.  The Appellate Division affirmed.

A parent's right to "raise a child and maintain a relationship with that child" is constitutionally protected under the federal and state Constitutions.  Id. at pg. 15  "As a result, the State's rights "is limited to situations in which the State has demonstrated that the child's parent or custodian is unfit...or the child has been neglected or harmed."  Id. at pgs. 15-16.  DYFS has the heavy burden, by clear and convincing evidence that this harm has not been cured, that the parent or custodian will continue to cause such harm and that terminating parental rights is in the best interest of the child. 

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The rights of individuals who have children to parent is one of the most precious and protected while at the same time vulnerable and subject to termination when state agencies, including the courts are involved.

In November, Robert Epstein blogged on the procedural safeguards that must be in place when custody is at issue.  To read more on this blog, click here.  In conjunction with that blog entry, the Appellate Division just last week handed down another  published decision, which scrutinizes the burden of proof required by DYFS and that must be considered by trial courts when determining whether parental rights are to be terminated.

In DYFS v. M.C. III, In the Matter of M.C. IV and N.C., a father who had custody of his two children after a divorce from their mother was accused of physically abusing the children.  The father testified at trial that an argument arose with the children, who were at the time ages 15 and 13, over their use of the Internet.  From that argument the father admitted to pulling at his son's shirt and accidentally falling on his daughter, after his son jumped on his back and pushed him to the ground.  On the day in question, the police came to the home twice, neither time reporting any signs of abuse or injuries.  Subsequent to the second visit, the children went to an aunt's home, where they called their mother and took a train to see her.  Their mother then brought the children to a nearby hospital and DYFS received a report from the hospital.

At trial, rather than providing live, in-person testimony, DYFS presented as evidence written reports created by the doctor at the hospital, but not part of the hospital's file.  Rather, these reports were written on DYFS intake and procedure forms by DYFS workers, relaying what the doctor had allegedly reported to them.  In addition, the DYFS caseworkers who worked on the file did not provide their own live, in-person testimony.  Rather, other caseworkers testified as to the contents of reports prepared by other caseworkers.  These reports contained statements made by the children, police and hospital staff.  Since the caseworkers who prepared the reports themselves nor the doctor were available to testify, the trial judge accepted hearsay and double or even triple hearsay as substantial, credible evidence in finding abuse and neglect on the part of the father and terminating his parental rights.

On appeal, the Appellate Division held that given the serious impact a finding of abuse and neglect has on an individual and family's life, credible evidence must form the basis for a finding of abuse and neglect.  It is incumbent upon DYFS to provide such credible evidence, in conformity with New Jersey statutes, case law, Rules of Court and Rules of Evidence when presenting a case requesting the termination of parental rights.  Citing the law set forth in In re Guardianship of Cope, 106 N.J. Super 336 (App. Div. 1969), "it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and..the answering parent be given the fullest possible opportunity to test the reliability of [DYFS]'s essential evidence by cross-examination."  Id. at 343. 

As such, the Appellate Division held that the admission of DYFS created documents was "clearly capable of producing an unjust result" because the trial judge relied directly upon that evidence in finding that the children had been abused and neglected.  Those documents did not provide a reasonably high degree of reliability as to the facts contained therein.  Further, DYFS workers should only be permitted to testify to facts within their own first-hand knowledge of a case.

This case provides further guidance as to the standard of proof and credible evidence that must be presented in a case addressing a request to terminate a parent's rights.

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New Jersey Courts are required to strictly apply procedural safeguards when a child’s custody is at stake due to the substantial impact that a custody decision has on the parent-child relationship. A review of these safeguards is warranted in light of the Appellate Division’s recent decision in In the Matter of K.S.H., where it reversed a trial court’s custody Order because it found the existence of a genuine dispute requiring the Court to provide the parties’ with prior notice of its intended action to change custody and to conduct an evidentiary hearing on the issue.

A lengthy procedural history preceded the events that are at the core of this discussion involving several attempts by DYFS and a child’s Law Guardian to have physical custody of the child removed from his mother based on allegations of neglect. Ultimately, a trial court in 2007 entered an order directing that the child be removed from the mother and that DYFS be granted physical custody because it deemed the mother to have abrogated her responsibilities as the child’s caretaker and violated related court orders and directives. Of import here was the decision of another trial judge in 2008 to reject DYFS’s permanency plan to terminate parental rights followed by adoption, granted visitation to the grandmother, and ordered that physical custody be returned to the mother all without providing notice to the parties of its intent to change custody. DYFS and the child’s Law Guardian were granted leave to appeal the second trial judge’s findings, arguing that the second trial judge erred by ordering the return of the child to the mother’s custody without having provided prior notice to the parties and without conducting an evidentiary hearing regarding the custody change

In agreeing with DYFS and the Law Guardian, the Appellate Division reiterated the need for a decision involving custody to be based on evidence admitted during a hearing held on the record with all documentary exhibits considered by the court clearly identified for appellate review and with testimonial evidence presented through witnesses who are under oath and subject to cross-examination.  

The Appellate Division found that the trial judge violated basic rules of trial practice and failed to provide a complete record for appeal because the order returning custody was premised upon a mere conference between the court, DYFS’s attorney, the Law Guardian, the mother on her own behalf, and an unidentified DYFS caseworker present in the courtroom at the time. There was no competent evidence supporting the decision – no witnesses were identified, no documents were admitted into evidence, there was no attempt to exclude inadmissible hearsay, and the trial court relied upon reports that had not been admitted into evidence.   As a result, the order returning custody was vacated and the matter remanded for an evidentiary hearing.

As set forth in another recent post in this Blog, the Appellate Division will not hesitate to reverse and remand a decision of a trial judge made without application of necessary procedural safeguards, including the conducting of a plenary hearing, especially when the custody of a child is at stake.

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