Wednesday, July 24, 2013

The New Jersey Child Abuse Registry

What is the Child Abuse Registry?


If DCPP has removed your child,  DCPP has the burden of proving allegations of abuse or neglect against you.  Any parent accused of abuse or neglect has the right to a fact-finding hearing.  In my earlier posts, I discussed the decision that parents need to make - whether to stipulate (admit) to the allegations of abuse or neglect, or to whether to proceed to a fact-finding trial.   Again, no parent should make that decision without the advice of a lawyer.   There are serious consequences that you will face if the court determines that you have abused or neglected your child.  Specifically, your name will be placed on the DCPP Child Abuse Registry, which is a list of confirmed perpetrators of child abuse or neglect.  In this post I will discuss the Central Registry and the consequences of being on it.

How does your name get on the Child Abuse Registry, and can it be removed?


If you stipulate to an act or omission of abuse or neglect, or the judge makes a finding of fact against you, DCPP will place your name on its child abuse registry.  If you have stipulated to an act or omission of abuse or neglect, your name will remain on the registry forever, and you give up any ability to challenge the inclusion of your name on it.  You cannot appeal the Judge's finding of fact in court, and you cannot challenge DCPP's internal finding of abuse or neglect in an administrative law court.

If the Judge has entered a finding of fact after trial, you do retain the right to challenge the administrative finding and appeal the Judge's decision.  As I discussed in my post on appeals, a successful appeal can lead to removal of your name from the registry only for the allegation that triggered that particular case.  That means if you have had a prior substantiation, your name will remain on the registry for the prior acts even if your appeal is successful.  However if the earlier substantiation was many years ago or less serious, an appeal may still be worthwhile even in that circumstance.

Consequences of being on the Child Abuse Registry


Judges are required to notify defendants that:


"Placement of your name on the child abuse registry can negatively affect your opportunities for employment with organizations that provide services to children. Certain individuals or entities must conduct background checks or employment-related screening of an individual who seeks employment. Examples include employment in a day care center, a residential facility, or certain other such settings. Being on the registry may also limit your ability to be a foster parent or even a caregiver to your own grandchildren in the future. Doctors, courts, child welfare agencies and any person or entity mandated by law to consider child abuse or neglect information will be entitled to the information in the child abuse registry."

Can anyone access the information in the Registry?


Because of these serious consequences, it is important to discuss the Child Abuse Registry with a lawyer before considering a stipulation or going to trial.   These consequences sound dire because they are.   You do not want your name to be on the registry, but you also need to know the information in it is not accessible to the general public.   However, the following categories of individuals are subject to Child Abuse Record Information (CARI) checks:


• Child Care Centers employees (N.J.S.A 30:4C-6.2)

• Resource Parent applicants  (N.J.S.A. 30:4C-27.7)

• Kinship Legal Guardians (N.J.S.A. 30:4C-86)

• Residential Centers employees (N.J.S.A. 30:4C-27.22)

• Registered Family childcare app. (N.J.S.A.30:5B-25.3)

• DFD Approved Homes (N.J.S.A. 9:6-8.1)

• Professional Guardians (N.J.S.A. 9:6-8.10e)

• Incarcerated parents (N.J.S.A. 9:6-8-10c)

• Adoption Agency employees (N.J.S.A. 9:3-4c.8)

• Adoptive parent applicants (private or DCF) are checked. The child

abuse/neglect information must be considered, but it is not an

automatic disqualifier.

• DCF employees are checked. Child abuse/neglect information must be

considered. Unless the staff works in a DCF child care center or an

RTC, it is not an automatic disqualifier.

• Court Appointed Special Advocate (CASA) Volunteer (N.J.S.A. 2A:4A-92).

Again, I don't want to diminish the consequences of having your name placed on the registry, but at the same time, being on it can only affect your life in certain ways.  You won't be able to adopt, be a foster parent, and you may not be able to get employment in a job involving contact with children.  You may lose the ability to care for your own grandchildren in the future.  However, the general public cannot access the information on the registry.   A substantiation for child abuse or neglect is not a criminal conviction.   The information can be checked only if you are in one of the categories specified above, according to the sections of law that are cited above.

Most importantly, do not assume that you cannot get your child back if you have been substantiated by the court at trial, or admitted to an act or omission, of abuse or neglect.   You will not automatically lose your parental rights just became your name is on the registry.  DCPP cannot terminate your parental rights if you do not consent, and if the court approves TPR as a plan, you have the right to a trial if you do not want to surrender your rights.   As I explained earlier, DCPP has to work with you and offer you services to attempt to reunify your child with you.  





Monday, July 22, 2013

When DCPP is in Your Life but Your Chlld is Home:Care and Supervision Cases

When DCPP (formerly DYFS) substantiates an allegation of abuse or neglect against a parent after an investigation, the Division may choose to remove your child without a Court Order and schedule an emergent hearing within two court days.  That hearing is called a "Dodd" Hearing and I discuss those hearings in my earlier posts. 

Sometimes, though DCPP determines that although it has concerns, those concerns are not serious enough to require the Division to remove your child.  Or perhaps the Division did request removal, but your lawyer was able to convince the judge that the situation that the most serious problems leading to the removal have been addressed, or can be addressed if a relative agrees to move into the home to supervise.  Or the offending parent may choose to temporarily leave the home to allow the child to return to the other parent.  In many cases, the Court will reunited a child with a parent after the child has spent months in foster care or with a relative.   In those situations, a Judge will usually keep a case open for "care and supervision" that the even though it is safe for a child to come home.   In these situations, the Division does not have or keep custody of your child, but stays involved with your family.  We refer to these cases as "care and supervision" cases.

Although nobody likes to have the Division involved in their life, obviously, any parent would prefer to have his or her child at home during the court case, especially after working hard to address the problems that led to the Division's involvement. However, in my experience, "care and supervision" cases can sometimes be more difficult to handle than removal cases.  Here's why:

Because of the Federal Adoption and Safe Families Act (ASFA)   DCPP must present a permanency plan to the court whenever a child has been placed out of the home for one year, or 15 out of the last 22 months.    While it is true that ASFA limits the time parents have to address the issues and avoid the need for the Division to approve a plan of Termination of Parental Rights (TPR), ASFA's time limits ensure that at a certain point, a plan will be presented and achieved for children who remain outside the home.

"Care and Supervision' cases are different.  Once the Judge returns your child home, there is no similar rule that limits the amount of time your case will remain in court.   I have found some of these case to be very frustrating because it seems the court will not dismiss until the child turns 18!

In my previous posts I have discussed things that parents can do to achieve success in a DCPP case.   Some of my tips are especially helpful if your children are with you and you want to achieve a dismissal of your case.

Remember, just because a Judge has determined your that your child can live with you does not mean everything is OK.  DCPP and the court will be watching out for any problems, and if you do not comply with court orders and cooperate with the Division, the Division can recommend removal at any time - and the Judge might agree.  Your lawyer wants to advocate very hard for you to get your "Care and Supervision" case dismissed - but your actions and your compliance will ultimately determine if and when the Judge decides that you can parent without the court's supervision.

Saturday, July 20, 2013

Inside Tips for Achieving Success in Your Case


What you need to do to achieve success in your case:

I have discussed the difficulty of the DCPP process and the variety of motions that parents involved in DCPP litigation experience a variety of emotions. Often these emotions include anger directed at the Division, as represented by the case worker.   But there is no benefit from being angry, because if it is misdirected at DCPP, parents can harm their case. 
Other emotions can include desperation and a feeling of helplessness.  No situation is desperate. As long as the client focuses on the necessary services, the attorney can present your case in a favorable light and can help you.  However, the outcome of your case will ultimately depend on what you do or fail to do for yourself and for your child.   In my years of experience I can there are very specific ways you can help or hurt your case.  I've listed them below.  I can't say that your case will go well if you do all of these things, but I can tell you to expect a bad result if you don't.  I think that these  tips that can benefit every client whether your child is out of your home or is living with you under court supervision.
  • Comply with all court ordered evaluations and services even if you do not agree with them.  Remember your goal is to get you child back, and get your litigation dismissed.  If you think the services are not helping, your attorney can raise the issue.
  • Do not use alcohol or illegal drugs!  If you have a problem, you need to address it.  Nothing good ever happened to anyone because they used illegal drugs.  Even if you do not think you have a problem with alcohol, the fact that DCPP is in your life should be a reason to stop.  DCPP can assist clients in getting treatment when necessary, but it is up to the parent to follow through.   At the very least, you may need to attend AA/NA and you may be ordered to do so.  If so keep all your meeting slips and show the worker.  You may also be ordered to attend an outpatient, intensive outpatient, or in some cases, inpatient treatment.  
  • Do not allow anyone with a criminal, drug or DCPP history to live with you!  If single, do not initiate a new romantic relationship.  If your significant other has a criminal, drug, or DCPP history, it can harm your case even if you are compliant.   I tell clients that I don’t like to tell anyone what to do with their personal lives and relationships.  But no relationship with any partner can take priority over the one you have with your children.
  • Never miss a required court appearance, evaluations, therapeutic appointments, or visit with your child!   Your child wants to see you, and will be upset if the visit is scheduled and missed.  Discuss any transportation issues with your caseworker and attorney. Judges look negatively on clients who fail to appear in court.    Many parents have difficulty juggling multiple obligations while their case is pending.  Talk to your case worker about scheduling appointments, evaluations, and visits around your court schedule.
  • Maintain a proper appearance.  Always bathe or shower before attending court and dress appropriately.  If an outfit is inappropriate for a house of worship, it is not suitable for court either.  You won't be going to court that often, so just one or two "good outfits" are necessary.  This should be obvious, but remember, in most cases the judge will only be seeing you for a few minutes every few months while your case is going on, and it does not take much time to make a good (or bad) impression by the way you look.
  • It is also very important to keep your child clean, especially when DCPP is supervising your parenting.  If DCPP sees that your child is dirty, they will note that in their records.   In extreme cases, DCPP might remove a child for neglect if they find serious hygiene issues.  Babies and toddlers should be bathed as often as needed.   Once your child is old enough for school, you should clean him/her every day (even if he/she does not appear dirty).  Teachers do call DCPP if they see a child is dirty. Teach your older child to clean him/herself and ensure that he/she does so every day (no exceptions).  It is better to be strict when your child is young because he/she will need more hygiene by the teenage years.  Teach your child proper habits early in order to avoid battles over hygiene when your child becomes a pre-teen.   I have had cases involving adolescents who refused to bathe.
  • Also make sure your living space is clean and uncluttered.  Caseworkers will make announced and unannounced visits to your home.  I recommend that DCPP clients do not keep pets in the home, especially cats.   People like to have pets, but do not choose your pet over your child.  If the DCPP considers the presence of a pet to be a problem in the home, make another arrangement for the pet.  Many caseworkers have claimed that the parent's home smelled from the presence of cats. 
  • On a similar note, if you must smoke, smoke outdoors only.  Keep your home clear of cigarette smoke.  Do you really want DCPP to record that they detected an odor of tobacco in your home, on your child - or you?  Remember, DCPP wants to see a home that is suitable for your child to live, so present it that way.
  • If your child is with you, and you used physical discipline in the past, please refrain from doing so.  There are other methods to discipline children.  If your child's behavior is a problem it is best to address it therapeutically.
  • Never use abusive language or obscenity to a caseworker, or anyone connected with the case (including your attorney!)  First of all your attorney is trying to help you.  You may think you are letting off steam, but you are creating a negative impression.  I have told clients, "If you are talking to the caseworker the way you are talking this way to me, you may be causing a problem with your case."  It is good to get out of the habit of using that language, even though you may be frustrated with the case.   It's OK to be frustrated.  If you must use that language to vent, do it in private.  When in public, don't use any language that you wouldn't hear on free network television!
  • Although you should always be courteous with the caseworker, it is not appropriate for the caseworker to discuss legal issues relating to your case.  Those issues should be discussed through attorneys.  It is OK to politely tell he caseworker not to discuss these issues, especially if the worker is seeking an admission of abuse or neglect, or is attempting to advise you regarding permanency or the possibility of termination of parental rights.  It is also OK to say to a caseworker that you wish for your attorney to review a document before signing it.  I tell my clients that I am always willing to do so.   In short, it is best to be cooperative - but let your attorney take the hits for you.  It is better for DCPP to see the attorney as "adversarial," not you.
  • Make a journal documenting all your phone calls (attempted or completed) with case workers and service providers, and keep a calendar of court dates, visits, and all appointments for services.
I know all of these tips may require you to make changes in your life and to do things in a way you did not do, or did not want to do before.  I understand if some of them may even sound condescending in a way.   Believe me, I don't want to tell you what to do in your home, who you should live with, or how to raise your child, or how to properly express your legitimate feelings about the situation.   But would you rather listen to someone who is on your side, or have DCPP raise these issues with you?  The fact is whether you like it or not, the Division has become involved in with your family and your goal is to get it out of your life.  But the fact is that once you are involved in the DCPP system, the people involved with your case will inevitably have certain negative ideas about you and your family. You need to go out of your way to erase these negative impressions  because you want DCPP to tell the Judge that your child can come home and/or that you can parent without court supervision.

Friday, July 19, 2013

The Life of a DCPP Case, Part Eleven - DCPP Appeals

DCPP Appeals

If the judge has found, at a fact-finding hearing that you abused or neglected your child, or has terminated your parental rights after a trial, you have the right to appeal if you disagree with the Judge's ruling.   Remember, DCPP and the Law Guardian also can appeal a decision in your favor if they disagree with the trial judge's decision.  In that case, you will have no choice but to defend an appeal.

Starting your appeal


It is important that in New Jersey, you know that you only have 45 days to appeal any judgment in any type of civil case.  However, there is one exception - you only have 21 days to appeal if the court has terminated your parental rights.  That's right, if your parental rights have been terminated, you are a member of the only class of litigants in the State of New Jersey that only has 21 days to appeal!  The State has made this rule because lengthy appeals delay adoptions that give permanency to children.  However, this rule certainly does not make it easy for birth parents to appeal.

For this reason, it is important that you discuss a possible appeal with your lawyer as soon as possible - don't wait until the trial is over to have that discussion.  If you are represented by a pool attorney from the Office of Parental Representation, your lawyer will give you a document notifying you of your right to appeal.  If you want to appeal, you will indicate that decision on the form and you will also have to promise to keep in touch with the Office of Parental Representation.  Your public defender will need to send your file back to OPR as soon as possible so OPR can file your appeal and assign a new attorney to you to handle it.   Your lawyer will do this, whether you were successful at trial or not; remember, if DCPP or the Law Guardian appeals, you will need a lawyer to defend the case.

If you are represented by a private attorney, you will most likely have to execute a new fee agreement if you wish for the attorney to represent you on appeal, or find another attorney.

You have the right to appeal in any case, but only a lawyer can advise you if it is worth your while to do so.  If you are appealing a fact-finding Order, or Termination of Parental Rights, you cannot be in any worse legal position if your appeal is not successful.   So you never have anything to lose if you appeal.  But you may not necessarily be better off if your appeal is successful.  For example, if the trial judge found that you abused or neglected your child, and the Appellate Division reverses, your name can be removed from the child abuse registry - but only for that particular case.  That means that if you have been substantiated for abuse or neglect in a previous case, your name will remain on the registry even if your appeal is successful.  (However, even in that situation, an appeal may be worth your while if the previous substantiation was for a less serious act or omission of abuse or neglect).  If you successfully appeal a finding of Termination of Parental Rights, that does not mean you will get your child back right away - more likely your case will be remanded (sent back) to the trial court, and the trial judge will order DCPP to come up with another permanency plan that may or may not be reunification.  DCPP does not like to lose TPR cases either at trial or after appeal, and may fight to stop or at least slow down the reunification process.

A good appellate attorney will ask you what you want to achieve with your appeal and let you know what a successful appeal will really mean in your case.  Although no attorney can predict the outcome of any case, you will want your lawyer to be able to analyze your case for you and let you know what the chance of success is.  Your appellate lawyer will read the transcripts of your fact-finding or trial.  But remember,  your appellate lawyer was not actually there- you were!   Your appellate attorney will want to talk to your trial lawyer about your case.  You know better than anyone what happened - if something at the trial did not feel right to you, your appellate attorney will want to know - there are some things that may have been obvious to you but that your lawyer may not notice by just reading the transcripts.   Your appellate attorney will want to talk to your trial lawyer about your case - your trial lawyer can be a good source of information for you.  Remember, just because you lost your trial does not mean that your trial lawyer did not do everything he or she could for you.  If your appellate lawyer thinks trial counsel was ineffective, he or she will discuss that issue with you when preparing your appeal.

Although you do have the right to represent yourself in your appeal, it is not a good idea to do so.  The process involves intense paperwork, and most litigants do not have sufficient knowledge of the law to properly make your arguments in a legal brief.    Furthermore, there are very specific requirements as to the contents and format of a brief; the Appellate Division rejects briefs that do not conform.

If you are appealing a finding of fact of abuse or neglect, your lawyer can ask that the Judge certify the fact-finding order as a final order so you can proceed with an appeal even while your case goes on in the trial court.

Usually, the trial judge will grant your lawyer's request that adoption proceedings for your child not begin until your appeals are exhausted. 

What happens on your appeal


An appeal is not a new trial.    An appeal is a review of your case by three Judges from the Appellate Division.  The Appellate Division must consider every case that comes to it.  Those judges have to review the trial court's decision on both the facts and the law, but they do not consider the facts and the law the same way.   The appellate court usually will give great deference to the trial judge regarding the facts in your case especially because there are no juries in family court.   The appellate court will only disagree with the trial judge's findings of fact if they find that the his or her decision was so obviously off the mark.  For that reason, if your appeal is only challenging the trial judge's finding of fact, your case will probably not be successful.  However, the appellate decision does not have to give the same deference to the trial judge regarding the law.  Most often, your lawyer in your appeal will argue that the judge incorrectly applied the law to the facts in your case.

It is important that you understand that even though you may feel that certain things were not considered in your case, the Appellate Division can only consider the evidence that was actually part of the record of the fact-finding or trial.  Your lawyer can argue that the trial judge considered evidence that should have been excluded, or did not admit evidence that your lawyer offered on your  behalf.   Your lawyer will point out any and all objections that your trial lawyer made to the exhibits or testimony that were overruled.  But the Appellate Division cannot consider any facts that were not in evidence, even if you believe them to be true.  If the trial record is not clear as to what was evidence, your appellate lawyer will file a motion to remand to the trial court to settle the record before proceeding any further.

If you appeal your case, you should know that the process can take many months to be decided.  If you are appealing a decision against you, your lawyer will write a brief in your behalf which will set forth your arguments.  DCPP and the Law Guardian's office will file responsive briefs.  Of course if DCPP and/or the Law Guardian appeal a decision in your favor, your lawyer will file the responsive brief.  Whichever lawyer filed the fist brief in the case may file a reply brief if he or she wants to respond to the opposing parties' arguments. 

Your lawyer may or may not request oral arguments in front of the Appellate Division.

The Decision


Once the long wait is over, your lawyer will notify you of the Appellate Division's decision.  The Appellate Division can reverse the trial court, or affirm (agree with) its decision.  The Appellate Division can also remand (send back) the case to the trial court if there are issues of fact that need to be clarified.  This may happen more than once in complicated cases.    If your appeal ultimately turns out to be successful, your lawyer will discuss what the decision means for you, what will happen next, and what your options are so you know what you need to do. 

If your appeal is not successful, your case most likely will not go any further.  You have the right to try to appeal to the Supreme Court of New Jersey, the highest court in the state.  However the Supreme Court does not have to take every case it receives and only accepts a limited number of DCPP cases.  If you wish to  try to appeal to the Supreme Court of New Jersey, you will need to petition for certification so that the Supreme Court can decide if it wants to hear your case.   If you are represented by a public defender, OPR is not required to represent you once your appeal is concluded, or to file for certification for you, unless OPR determines that it does want to handle the matter.   The Supreme Court of New Jersey only handles cases involving serious issues involving violations of the State or Federal Constitution.

In Conclusion

If your case was not resolved at the trial court, the Appellate Division's decision marks the end of "The Life of a DCPP Case,"  especially if it has affirmed a decision to terminate parental rights.   Most cases do not proceed any further.    For this reason, this is the last of this series of articles.
I hope you have found the information in this blog to be helpful and comprehensive.   But there may be some points that I have left out so I encourage you to return often.   I will continue to update these posts as laws and court procedures change.  Perhaps you have specific concerns or questions that I have not discussed here so I will be glad to hear from you. 

"The Life of a DCPP Case"  was what I hope is a good attempt to cover the most important information regarding child abuse and neglect case in New Jersey.  In future blogs, I will be discussing specific aspects of DCPP cases in detail, and will discuss my inside tips for successfully navigating the DCPP system.

Please visit the new website at www.malkinlawoffice.com and return to this blog often!

 


Wednesday, July 17, 2013

The Life of a DCPP Case, Part Ten - What to Expect at the Trial

What to Expect at the Trial


If your case has not been resolved by the trial date, you probably have been involved with the DCPP system for at least two years.  You are probably exhausted from all of the obligations that the court has imposed on you.  You may have been juggling your calendar to accommodate  all sorts of appointments for visits, therapy appointments, drug and alcohol treatment, court appearances, and meeting with your case worker and lawyer.  It can be a shock to the system when you realize that your trial is going to start tomorrow!

In the last few weeks, your lawyer has been scrambling too.  He or she is reviewing hundreds of pages of evidence, and analyzing it to see what objections would be appropriate at trial.   All DCPP records are admissible at trial; however, the documents in those records often contain hearsay statements that your lawyer will try to exclude.  Your lawyer will want the judge to exclude as much hearsay as possible.  However, since there is no jury in family court,  usually the Judge will decide to include most of the Division's evidence and give each document the appropriate weight.  Your lawyer at this point has prepared his or her exhibits, which will usually consist of the defense expert report, if it will help your case.  If your lawyer believes that the defense evaluations will help, he or she will have arranged for the psychologist who evaluated you to testify in your behalf.

 

The  Month Before Trial



Meet with your lawyer to decide if you should testify at trial.  You are not required to testify, but if you do not testify the Judge may think you have no defense.  If you do testify, anything you say can be subject to cross-examination, and the DAG will try to get you to say things that will not help your case.  Your lawyer will help you decide whether to testify and prepare your testimony if you do.  Also, if you have any other potential witnesses, let your lawyer know well in advance so that he or she can decide if this witness will help or hurt your case.   Remember, the Division will want to interview any witnesses you propose as part of discovery.  A witness you think may be helpful may actually hurt your case.

It is not unusual for your lawyer to all only his or her defense expert at the trial.

The Week Before Trial


  • If you have not done so already, arrange for time off from work to attend every day of your trial.  The trial may not necessarily take place on consecutive days.  You cannot miss any days of your trial.

  • Make sure that you truly wish to go to trial.  You will not like what you hear during the trial and the DAG will bring up as many facts as possible to show that you cannot parent your child.  Remember that although this is not a criminal prosecution, it can feel that way.  Talk to your therapist, if you have one, if you are unsure about your emotions about the trial.

  • Decide what you will wear each day of the trial.   If an outfit is not appropriate for a house of worship, it is not appropriate for court.

The Day Before Trial

  • Think of any last-minute questions for your lawyer.  If there are specific questions you want him or her to ask the DCPP witnesses, let your lawyer know.

  • You may want to bathe or shower the night before, so you do not have to do this in the morning, especially if you have to be in court at 8:30 AM!  Now more than ever it is important to have a clean appearance because this is the last time to make a positive impression with the Judge.   Again, it is also very important to dress appropriately.

 The Day of Trial

  • Arrive as early as possible.  Usually the court will allow you a few minutes to talk to your lawyer before the trial begins.   You should bring a pen and paper with you, but your lawyer will probably have it for you.  Remember, your lawyer is going to be focusing on the proceedings and will have questions prepared for each witness.  You will probably disagree with the testimony you hear but never interrupt the proceedings.  I always tell my clients I need to focus on the testimony, so I ask clients not to whisper in my ear.   Instead, I ask my clients to write their questions on a piece of paper.   That way my clients can let me know if they want me to ask a witness a specific question on cross-examination.

What will happen at the Trial



The Judge will begin the trial and may or may not allow opening statements from all the lawyers.

The Deputy Attorney General (DAG) will present the Division's case first.  Typically they will present the case workers who have been involved in your case and the expert who performed the Division's evaluations of you.  The Division may also call counselors, service providers, neighbors, or relatives who have knowledge of your case.  Again, you must not interrupt the proceedings even if you are angry about something a witness says.  If you disagree with the testimony, or if you need to point something out to your lawyer, write a note on the piece of paper. 

After your child's law guardian cross-examines each witness, your lawyer will have the opportunity to cross-examine each witness. In cross-examination, your lawyer will try to point out anything positive the witness might have said.

Once the DAG has presented all the witnesses in the Division's case, the Law Guardian will present any witnesses he or she has.  At that point, your lawyer will present your case.

Technically, your lawyer does not have to prove anything because the Division has the burden of proof by clear and convincing evidence.  This means that your lawyer does not have to present any evidence or witnesses.  However, your lawyer does want to present evidence in your behalf.  Usually your lawyer will want to call the expert who did a defense evaluation for you.  If the defense expert disagrees with the other experts who testify in the case, the Judge will have to decide who is more reliable when he or she considers a decision.   Again do not worry if the defense expert is the only witness your lawyer chooses to present - I have won one a trial in which the defense expert I called was my only witness, and his report was my only exhibit.

After all the attorneys have presented your case, the Judge will ask for either oral or written summations.  The Judge will want to consider all the evidence and usually will not make a decision as soon as the trial ends.  Your lawyer will let you know when the Judge will be making a decision.

The Judge must make a decision based on clear and convincing evidence.  If you watch TV court shows such as "Judge Judy," you may know that the standard of proof in civil court is "preponderance of the evidence."  That means that  whichever side has "tipped the scales" in its direction will prevail, no matter how slightly.  You may also know that in criminal cases, the standard of proof is "beyond a reasonable doubt."  That is why it is very difficult for a prosecutor to prove a criminal case.  In DCPP court, the standard is something in the middle called "clear and convincing evidence."  That is a very high standard to meet, but not as high as the one required in criminal court.    For example, if you are accused of physically abusing your child, the prosecutor may decide not to prosecute because he or she cannot prove the case beyond a reasonable doubt.  However, the Division, using the same evidence, may be able to prove that your parental rights should be terminated by the "clear and convincing" standard even if you were not convicted, or even charged, with a criminal act.

The Judge's Decision


The Judge, after reviewing all of the evidence, will make the decision whether or not to terminate your rights. The Judge may take several weeks or longer to make his or her decision.  When the Judge is ready to announce his decision he or she will notify your lawyer and schedule a date to give his or her decision.    If the Judge decides to terminate your rights, you can appeal your case.  I'll discuss appeals in my final article in this series.  If the Judge does not terminate your rights, he or she can reinstate the previous litigation and order a gradual reunification of your child with you, following extended day and overnight visits.  Or the Judge can Order the Division to implement a different permanency plan such as placement with a relative or Kinship Legal Guardianship. 

If the Judge decides to terminate your rights, you can appeal your case if you disagree with the court's decision.  I'll discuss appeals in my final article in this series.  If you are represented by the Office of Parental Representation, your lawyer will give you documents about your right to appeal.

If the Judge terminates parental rights, your lawyer can ask the Judge to order a final visit with your child.  You can also take advantage of counseling that the Division can provide. 

If you want to appeal your case, your lawyer can ask  the Judge to order that visits with your child to continue while your appeal is pending.  Your lawyer can also ask the Judge to order that no adoption proceedings take place until your appeals are exhausted, and ask that all activities designed to prepare him or her for adoption be stopped while the appeal is pending.  


Contact with Your Child after Trial


After the trial, you can only have contact with your child if the foster parents agree to such contact.  You cannot come back to court to and ask a judge to enforce any promises  of contact that are made to you.  DCPP an assist in facilitating a meeting with the foster parents, but they may not wish to discuss continued contact with you.  although many adoptive parents will welcome continued contact, there are also adoptive families who will want no contact with the birth parent.

Whether you surrender your parental rights or your rights are terminated at trial, you have the right to remain current on the adoptive registry so your child can find you in the future if he or she wishes. You can contact them at:

DCPP Adoption Registry
P.O. Box 717
Trenton, NJ 08625-07017
609-292-8816 or 609-984-6800

If you choose to place your name in the registry, you must keep your contact information current at all times so your child will be able to locate you.

In the next and final installment of "The Life of a DCPP Case" I will discuss appeals in detail.

Next: DCPP Appeals

 

Sunday, July 14, 2013

The Life of a DCPP Case, Part Nine - Preparing for Trial

Preparing for Trial


After you have considered your options with your attorney, you will decide whether to proceed to trial.    If you decide not to surrender your rights, or choose another one of the options I discussed above, your lawyer will begin to prepare your legal defense for you.

Discovery


This process begins the first time you and your lawyer appear in court for the first case management conference.  DCPP must give your lawyer copies of all the documents that it intends to use as evidence against you, as well as a list of all potential witnesses.  Your lawyer also can review the entire DCPP file if necessary. 

The records in discovery will include evaluations and reports from treatment providers for both you and your child.  there will be reports about the quality of any therapeutic visits you have had with your  child.  DCPP will also provide documentation of all correspondence from the Division to you.

Most significantly of all, DCPP maintains ongoing contact sheets about which document everything the caseworker does on your case.  Every time your case worker sees or talks to your child, the foster parents, and you, that discussion will be recorded in the contact sheet.  Once a case is ready to go to trial, the contact sheets will thoroughly document every day in the life of your child - and you, almost to the hour!  This is a good reason why you must be careful never to use abusive language to a caseworker or anyone else connected with your case.  The Judge deciding your case will be reading all of these contact sheets, and you do not want him or her to get a negative impression of you from the contact sheets!

Evaluations

DCPP and your child's law guardian will ask the court to order you to attend an evaluation with a psychologist or other mental health expert.    The Judge always will grant these requests.  You may also be ordered to attend other medical or substance abuse evaluations.  However, the most significant evaluations for your case will be the ones conducted by a psychologist.

Usually the court will order that the psychologist selected by DCPP conduct two types of evaluations.  The first part is a psychological evaluation, to determine if your have any mental health issues that would prevent you from properly parenting your child if reunited.  The other evaluation is called a bonding evaluation.  The psychologist will observe your child with you, to evaluate the quality of your relationship with your child.  The psychologist will also conduct a similar evaluation with your child and the current caregiver,  The psychologist will determine if your child will suffer serious and enduring harm if the relationship with the current caretaker is severed to return the child to you.

These evaluations are not therapy sessions and are not confidential.  DCPP's expert, and sometimes, the law guardian's expert, will prepare a report that will be used against you.  Fortunately, your lawyer can arrange for a different expert to perform the same type of evaluation.   If you are represented by OPR, your attorney can arrange for OPR to pay the expert fees.

In the best possible situation, the defense expert will disagree with the DCPP expert and will be able to recommend reunification, In my experience, many of my clients are much more comfortable talking to the defense experts that I provide for them, than they are with the DCPP expert.   However, generally, most experts looking at the same facts in the case will come up with similar conclusions and your defense expert may not always help your case.   Your lawyer does not have t present an expert to testify if he or she concludes that expert testimony will hurt your case instead of helping.

Your lawyer will want to put a defense expert on the stand, but remember, your lawyer cannot tell a psychologist what his testimony should be.  Some clients do not understand why the defense expert does not recommend reunification but the fact is, your cooperation with services and your progress will determine what your expert will say.  I do not like to proceed to trial without an expert but remember, DCPP will present a lot of evidence against you.  So your lawyer will not want anything negative to be presented from your side.

How can I help my chances?


Always be cordial and cooperative with everyone associated with your case and never display anger to the judge, attorneys, case workers, service providers, foster parents or therapists.   The worst thing you can do for your case is to display aggressive behavior.  Never miss any visits with your child and always show that you love your child and can put his or her best interest above your own.  Do the things you are required to do even if you do not agree with them.

Defaults

Make sure you attend every court hearing and evaluation.  If you do not attend court, and regularly miss evaluations, DCPP can ask the court to enter default against you.  If the Judge agrees, he or she can order a proof hearing instead of a full trial.   At a proof hearing, the court will allow DCPP to present its evidence against you but you will not be allowed to present any evidence, experts, or witnesses at all.

If you have an emergency that requires you to miss court, contact your lawyer and case worker  immediately.  Your lawyer can ask the court to vacate default if you had a good reason for missing court.  Make sure you can document the emergency that prevented you from attending court.  If the court vacates default, you will have the right to a full trial.  Although the DAG for DCPP can ask for default at any point, many judges will not grant default until the end of the trial, after DCPP has presented its case.  Judges rarely default clients who are represented by counsel, but do not take that risk.  You must appear at every court hearing.

If you do default, and the court terminates your parental rights at a proof hearing, you cannot appeal directly.  Your lawyer must make a motion to vacate default first.  For this reason, a default judgment terminating your parental rights is the worst possible outcome.  So make sure you attend every court appearance and do not default.

Before you know it, you will be facing the day of reckoning - the day of trial will arrive.  In my next post, I will be discussing how the trial proceeds, and what you can expect.

Next: What to Expect at the Trial






Monday, July 8, 2013

The Life of a DCPP Case, Part Eight - Considering Your Options Before Trial

Considering Your Options Before Trial


By now I am sure you know that once the Division has sought to terminate your rights, the process of preserving your rights and regaining custody of your child becomes extremely difficult.  As I mentioned in the previous post, you will be overwhelmed with appointments with service providers, evaluations, court appearances, and scheduled visits with your child for parenting time.  At the same time, you will want to keep up with your work and school obligations. 

I don't know the percentage of TPR cases that are won, but I do know that the process can be emotionally, mentally and physically draining for parents.    As overwhelmed as you are, at this point in the case you need to take time to think about your situation and decide what option is best.  Keep in mind that the option that is best for your child may not be the one that is best for you.

So what choices do you have?

  • Attempt to regain custody of your child.


If you decide you want to move forward to trial, you need to work closely with your lawyer and continue to comply with all court Orders and work with DCPP.  In order to have a fighting chance, you must not miss any dates for evaluations, therapeutic appointments, court appearances, or visits.  At this point in your case your lawyer should be receiving discovery.  DCPP keeps contact sheets that document the life of your child almost on a minute by minute basis.  Everything you say or do (or fail to do) will be documented in these sheets.  The judge will be reviewing this evidence when he or she makes his decision.  That is why you should cooperate with your case worker at all time and never be berbally abusive.  However, do not discuss any issues with your worker if they pertain to legal issues in the case.   Your worker should not attempt to influence your decision or predict the outcome.  Do not sign any documents without consulting your lawyer first.  It is perfectly OK to say, "I need to discuss this with my lawyer, I will follow up with you after that."  If you have a problem, contact your lawyer and he will deal with the situation between attorneys.

  • Ask the Court to place your child with a relative or friend


If your child is in foster care, you can ask the court to place your child with a relative or friend.  In most cases, DCPP will not want to remove the child from a foster home where he or she has lived for some time, if the foster parents wish to adopt.   But it some cases, the foster parents change their mind, and DCPP will be looking for a new placement.  Even if DCPP tells you they do not want to remove your child, ask the case worker to check out relatives or friends anyway.    DCPP would prefer to place with a relative, but will investigate placing with family friends also. 

During the discovery process, your lawyer will receive any letters from the Division to any relatives who have been considered as placement options, but have been ruled out.  Your attorney can tell you the reasons why DCPP has decided not to place a child with a relative or friend that you have suggested.

Anyone who is interested in taking your child will need to cooperate with DCPP by participating in a home study, and participating in foster parent training.  DCPP can rule out any individuals who have had previous drug, criminal or DCPP history.   Keep this in mind when you consider who to offer as a potential placement resource.

Sometimes, DCPP will agree to a relative placement on conditions that the birth parent have no contact with the child, or have only limited supervised contact.  In  those cases, the court will not terminate the rights of the birth parent.    However, DCPP can  ask the court to notify it if the birth parent files papers in court seeking to change custody or parenting time.   You should know that as long as you retain your parental rights, you retain the right to go to court and ask a judge to change custody or parenting time - but DCPP will most likely oppose your application.

Even if you choose to go to trial and attempt to regain custody yourself, it is always a good idea to discuss possible relative placements with your lawyer, if your child is not with a relative or family friend.

  • Kinship Legal Guardianship (KLG)


In some cases, Kinship Legal Guardianship (KLG) can be an alternative to termination of parental rights.   It is a more permanent arrangement than simply to place a child in the custody of a relative or friend.  In a KLG arrangement, the relative agrees to raise the child until the age of 18, if necessary, and exercises all the functions of a parent.   At the same time, the birth parent retains some parental rights, including the right to maintain a relationship with the child.  In KLG, the child is not adopted, and the under KLG, the birth parent can decide whether or not to allow the KLG Guardian to adopt the child or change his or her name.

KLG is not an option in all situations and is only available if your child has been living with the prospective KLG guardian for a year.  A KLG Guardian must undergo the same checks as a prospective adoptive parent.  The court must decide that the parent is unable or unwilling to care for the child on his or her own, and that DCPP has made reasonable efforts to reunify.  

KLG sounds like a good alternative, and in many cases it is.  The catch is that DCPP usually will not support this option.  The law states that KLG is only an option if adoption "is neither feasible nor likely."    DCPP considers KLG a less permanent option than adoption, even though your lawyer will argue that it is not.   Sometimes DCPP will not even discuss KLG with the caregiver, even though your lawyer has notified DCPP that you want it to be considered.

If your lawyer thinks that KLG is an option for your case, he or she will discuss it with you.   Your lawyer can fight for KLG even if DCPP opposes it, but the fact that you want KLG is technically not a defense in a TPR case.  Let your lawyer know if you are willing to agree to KLG.  

DCPP does not oppose KLG in all cases and sometimes will propose it as a plan.  Even though KLG preserves your parental rights, you do not have to consent to it and you have a right to a trial.  The judge would then decide if DCPP has proven that KLG is a better option than reunification.  DCPP would have to prove this by clear and convincing evidence.

If the judge does decide that KLG is appropriate in your case, you do have the right to go back to court to regain custody of your child.  However, in such a hearing, the burden of proof is on you to show by clear and convincing evidence that your incapacity no longer exists and that it is in your child's best interest to return to you.    One reason DCPP opposes KLG in many cases is that they fear that KLG would allow the birth parent to interfere with the arrangement by constantly filing applications to change custody.

KLG does not terminate your child support obligation, even though a KLG guardian can get financial assistance.   If you do not want to have an ongoing child support obligation after your case is over, KLG is not the option for you.  KLG allows you to retain some parental rights so it makes sense that it requires you to be responsible for child support as well.

  • Voluntary Surrender of Parental Rights


You may decide that you do not want to proceed to trial and that you want to surrender your parental rights.  This is a very difficult decision which you must discuss with your lawyer.  There are lots of reasons why a birth parent might make this decision.  You may decide that you are unable to do what you need to do to get your child back.  You may decide that your child is better off in his or her current placement.  You may have ongoing issues, such as incarceration or drug problems that you have been unable to resolve and that would prevent you from parenting.  Your lawyer may have told you that after analyzing your case, it is unlikely that you would prevail at trial for whatever reason.

If you surrender your rights, your relationship with the child ends immediately.  You will still need to pay support until the adoption becomes final.  You cannot change your mind and you cannot appeal your case if you surrender.  That is why you should always wait as long as possible to decide.    Your lawyer would prefer to go to trial and wants to give you your day in court.   It is better to proceed as if you are going to trial, because you can surrender at any time before the trial is over.  But if you surrender, you cannot change your mind.  Don't make the decision until your lawyer has reviewed all the expert reports, and all of DCPP's evidence.  Your lawyer can advise you at that point if he or she thinks there is a realistic chance for success at trial, or not.

There are two ways to surrender your rights if you decide to do so.

    • General Surrender

If you execute a general surrender, you give up your right to a child, and allow DCPP to place your child in the adoptive home of its choosing.  This means that you have no say at all in who will adopt your child.   In most cases, a general surrender is not a good idea for this reason.    There is no benefit for the birth parent whatsoever in executing a general surrender.   Only consider this option if you want no involvement with your child ever in the future, or if DCPP will not accept an identified surrender and you do not want to proceed to trial.

    • Identified Surrender

For the above reason, most parents would choose an identified surrender instead.    An identified surrender also ends your relationship with your child.  However, unlike in a general surrender, you can designate a specific person to adopt your child, usually the current caregiver.  If your child is in the care of a relative who wishes to adopt, an identified surrender allows for the possibility that the adoptive parent might allow contact with your child in the future.  However, you can also execute and identified surrender if your child is in the care of a foster parent.

When you execute an identified surrender, you surrender your rights on the condition that your child is adopted by the person you designate.  If for any reason, the adoption does not take place, DCPP must notify you, and tell you that your surrender is void.  At that point your parental rights are reinstated, and you once again have the right to a trial.  

DCPP does not have to accept an identified surrender, and will only allow it if you are willing to surrender to the current caregiver.  You cannot surrender to anyone else.   If your surrender becomes void, DCPP may not be willing to offer an identified surrender and may ask if you will agree to a general surrender.  You do not have to agree to a general surrender and have the right to a trial.   If your identified surrender is void, it is because DCPP's original plan was not executed and it is DCPP's obligation to come up with another one.  You may be in a better situation at this point than you were when you originally decided to surrender. 

You need to contact your lawyer if you have executed a surrender that is now void.  If OPR has represented you, you need to reapply for the public defender so OPR can reassign your lawyer.   If you.  If you had a private attorney, you need to let him or her know that the situation has changed.

Every case is different.  Your lawyer can advise you but your decision is ultimately yours.   You genuinely think your child is better off with the people who have been caring for him or her.  If you feel that for whatever reason that you cannot parent your child, you are not a bad parent if you give your child to someone who can.   You may decide that the best gift you can give with your child is to allow your child to be raised by adoptive parents who can give him or her what you cannot. 

If you decide to surrender, you will be asked to fill out a form and testify in court.  Your lawyer will discuss this form with you before you make your final decision.  When you go into court you will be sworn and your lawyer will ask you the same questions on the form that you just signed.

But there is no reason to surrender if you don't feel that way.  A surrender does not help your legal position.  DCPP may make you think that if you lose the trial, they will automatically seek to remove any future children you have and will not provide services for you, but that if you surrender, they would work with you in that situation.  Those statements are not accurate.   It is true that if you lose your trial, DCPP may remove your future children, but that decision is at their discretion and they may still decide to work with you even if they do.  Don't let anything DCPP says influence your decision.  The only people who should influence your decision are your loved ones, your therapists or counselors, and your lawyer.

You may feel that you want to go to trial because you feel strongly that your child should be with you.  You may be thinking about the day  your child finds you in the future and that you want him or her to know that you did not give up and that you did all that you could.   Your lawyer may advise you that there is a chance of success at trial and that he or she feels you should not surrender.  I tell all my clients that I will support whatever decision they make.  

In our next post, I will discuss the pre-trial process in more detail so you know what you need to do before the trial date, and what you lawyer will do for you.


Next: Preparing for Trial