Wednesday, June 26, 2013

The Life of A DCPP Case: Part One - Introduction


Since this blog is for the benefit of parents involved in the DCPP (formerly DYFS) system in New Jersey, I thought that I would use the next group of posts to explain the legal procedures in these cases in detail, and how the courts conducted them.

Before I get to all of that, please note my standard disclaimer.  These posts are not and cannot constitute legal advice which can only be provided by an attorney familiar with your particular case.  Every case is as different as the individuals involved in them.  Only an attorney who represents you on your own case can provide individualized and confidential legal advice.

I believe that knowledge is power.  I've mentioned previously that I believe that nothing other than the death of a family member can be a more stressful experience than involvement in the child welfare system, especially if your child has been removed from your home.    I have seen the feelings of helplessness and dear in my client's eyes on many occasions.  As an attorney, part of my role is to alleviate this by educating them about the system.

The next series of posts will explain what you can expect at every stage of this process.  Some courts operate more efficiently than others, and I haven't been to all the family courts in New Jersey.  But I an share with you general information and observations.

So let us start at the beginning.


Initial DCPP Involvement   

The focus of these posts is on the litigation itself, not what happens before that, so I'm not going to spend a lot of time and space discussing DCPP Investigations here.  I do want to briefly explain how and why DCPP brings cases to court.

DCPP becomes involved with a family when it receives a report of abuse or neglect.   The Division at that point investigates the allegations, and determines whether there is enough evidence to substantiate (prove) the allegations.   The Division may find that the allegations are unfounded because they have no basis at all, or they may have concerns but insufficient evidence to substantiate abuse or neglect (unsubstantiated).  If the Division substantiates, it may decide to initiate litigation.  If the investigation determines that the child is at immediate risk of substantial harm, or has been harmed, it may remove the child without a court order.  In less serious situations. the Division may instead initiate litigation for "care and supervision."  In those cases, the Division will ask the court to permit it to supervise the parent's parenting, but not seek removal of the child.

For the purpose of the rest of this discussion, let us assume that the Division has investigated an allegation of abuse or neglect and has decided to remove a child emergently, without a court order.  If the parent is not present at the time of the removal, the case worker will post a "Notice of Emergent Removal" on your door.

The Order to Show Cause (Dodd Hearing)

Of course, most birth parents are shocked when the Division removes a child.  As you might imagine, a common reaction is "How can they do this?"   The reason is, simple, because they can.  The relevant statute, N.J.S.A.  9:6-8.29 authorizes the Division to do this.

N.J.S.A. 9:6-8.30  states that:
"The division when informed that there has been an emergency removal of a child from his home without court order shall make every reasonable effort to communicate immediately with the child's parent or guardian that such emergency removal has been made and the location of the facility to which the child has been taken, and advise the parent or guardian to appear in the appropriate Superior Court, Chancery Division, Family Part within two court days.  The division shall make a reasonable effort, at least 24 hours prior to the court hearing, to: notify the parent or guardian of the time to appear in court; and inform the parent or guardian of his right to obtain counsel, and how to obtain counsel through the Office of the Public Defender if the parent or guardian is indigent.  The division shall also advise the party making the removal to appear.  If the removed child is returned to his home prior to the court hearing, there shall be no court hearing to determine the sufficiency of cause for the child's removal, unless the child's parent or guardian makes application to the court for review.  For the purposes of this section, "facility" means a hospital, shelter or child care institution in which a child may be placed for temporary care, but does not include a resource family home."

In other words, whenever the Division removes a child without court Order, it must notify the parent as soon as possible and advise the parent to appear in court for a hearing to be scheduled within the next two court days.

In other types of litigation in New Jersey, the plaintiff initiates a lawsuit by filing a complaint and serving a summons on the defendant in a manner authorized by court rules.  In DCPP matters, DCPP will file a complaint but there is no summons, only the notice to the parent as described above.  For these reasons. DCPP cases are ex parte proceedings, because the Division can initiate them without a summons.

In New Jersey, attorneys and the court refer to an emergency removal under the above law is called an Order to Show Cause (OTC) or a "Dodd Hearing."   Order to Show Cause means that the Division will be seeking relief from the court immediately, and that a hearing needs to be scheduled to determine if there is any reason for the court not to grant that relief.

If your child has been removed without a court order, the  Dodd Hearing will be  the first time you will appear in court.   As a pool attorney for the Office of Parental Representation, I've handled many of these hearings.  Many clients at this early stage are still angry, scared, and feeling helpless at this point.   I can't make this experience more pleasant for my clients, but I can explain here what you can expect at one of these hearings.

Your case may be scheduled at a particular time of the morning or afternoon, but don't expect to be heard right away.  You will be waiting.   Your case worker will hand you an envelope with your copy of the Division's complaint inside.   (That's the first time you will see it - remember, there is no summons).   Also in that packet will be an application for a Public Defender.  You should fill out that application because if you are income eligible, you have the right to representation at a greatly reduced cost from the Office of Parental Representation (OPR) .  If you qualify, you may be assigned an attorney right then and there, but no later than the next hearing.  Your case may be assigned to a staff attorney or a pool attorney such as myself.  The Office of Parental Representation will know in advance of every Dodd Hearing that is scheduled, and will attempt to ensure that an attorney is available.  Please note our staff and pool attorneys are fully trained in DCPP litigation, and are dedicated to serving you.  Don't just assume that a private attorney is better.  Although there are many private attorneys who do this work well, relatively few handle these cases regularly.  The cost of a private attorney is much greater as well.  If you qualify for a Public Defender, you should use one.

Each parent in a DCPP case needs his or her own lawyer, whether or not the parents are married or living together.  Even though it may seem that both parents want the same thing, sometimes parents disagree on a case, or there is an allegation of abuse or neglect against one parent and not the other.

If you do qualify for an OPR attorney, and one is available immediately, he or she will only have a few minutes to meet you.  He or she will be served with a copy of the complaint against you, but will also receive supporting documentation that parents themselves are not permitted to receive (you may not get them even if you represent yourself).  Although your public defender will know that you have questions, please allow your attorney a few minutes to at least get a first read of your complaint.  The courts can be pretty chaotic though and I have had experiences where I did not meet my client until we were already in the courtroom!

There will be at least two other lawyers in the courtroom.  A lawyer known as a Deputy Attorney General will represent the Division.  A lawyer called a Law Guardian will represent you child.  Any other Defendants in the case may have their own attorneys.  The court may also appoint a volunteer called a Court-Appointed Special Advocate (CASA) for your case, who will gather information about your child and report independently to the  judge.  Please get to know your CASA because they can often help you with certain problems that you may have.

You may be thinking "How can we go into the courtroom if my lawyer has had no time to prepare?"  Do not worry because nothing is permanently decided at this initial hearing.   First of all, some Dodd hearings are uncontested.   In many cases, a parent for whatever reason is simply unable to care for the child immediately and will decide to consent to the temporary placement, with the understanding that he/she does not give up his/her right to a trial later, or admit to any act or omission of abuse or neglect. The court will not decide if you abused or neglected your child at this hearing.  The court will not set permanent custody at this hearing, let alone terminate your parental rights at this early stage. 

An abuse or neglect case is a civil, not a criminal case.   The judge can not put you in jail or impose a penalty on you if DCPP wins the case.  However, in serious cases the prosecutor may file criminal charges based on the same incident.  You will need a lawyer for the criminal charges.  It is important to make sure your criminal lawyer knows about the civil case, and vice versa.  Anything you say in a DCPP case can be used against you in a criminal case.  If you plead guilty in the civil case, it will affect the civil case.  Make sure your civil and criminal lawyers talk to each other, because they will want to avoid these serious issues and advise you properly.

The only function of a Dodd Hearing is to determine if the Division acted properly when it removed the child.  The Dodd Hearing is like a preliminary hearing at a criminal trial.  It is an opportunity for your attorney to begin to challenge the Division's case, but it is not the time to present a defense.   You will have the right to a trial (called a "fact-finding hearing") which will be scheduled at a later date.   The only issue for the Judge to consider is whether the Division acted properly in removing the child at that time.  Your attorney will be able to ask the case worker some questions, and may be able to argue that the removal was not necessary or that the child can be safely returned immediately.  You may want to testify at this hearing but I usually do not recommend that defendants testify.  Every case is different though.

Your lawyer can make some requests for you.  Sometimes the court will agree to let a child return home if another  person leaves a home or if another relative will agree to live with you to supervise your parenting.    Or you can request intensive in home counseling or a home health aide if those services will enable your child to return home.  If you need substance abuse treatment you should seek it now.  There are some residential programs that will allow your child to live with you, but space is scarce so you should make the request as soon as possible.  Other services include intensive outpatient treatment for substance abuse. 

The Dodd hearing is also an opportunity for the birth parent to let the Court know the names of any relatives or family friends who can take temporary custody while the case is pending.  The Division will investigate any individuals you name and will attempt to place with a relative if at all possible.
(As an aside, a good attorney will always advocate for the placement you request.  However, your attorney cannot get involved in disputes over placement.   The Division, not the court, determines placement, and the Judge will not interfere without a compelling reason.  If Grandma Smith and Grandma Jones are both interested in caring for your child, your attorney cannot get involved in their dispute.  Your attorney wants your child to be in the placement that you want and out of foster care, but his/her primary focus is the eventual reunification of your child with you.)

The court will make a ruling as to whether the Division acted properly when it removed your child.  Usually the Court will err on the side of caution if there is any doubt, and find that the removal was warranted.  At that point the court will schedule a return date in the next two weeks.  The court will issue an Order which will set forth what you need to do at this stage.  In general the Division will ask the Judge to order psychological and/or drug and alcohol evaluations.

In conclusion, I'm not going to mince words.  The day you have your Dodd hearing is not going to be a very pleasant day.   You will probably be angry that the Division has your child and is in your life.  You will be worried about your child if he/she is with a stranger.   You will be frustrated with your experience in the courthouse.   You will probably be paralyzed with fear of the worst possible outcome.  You may not have a lawyer yet, or your fate may be in the hands of a public defender who you just met.   

But as difficult a day as it will be, you need to try to keep calm and focused.  You may qualify for a public defender to help you.   The court will not decide if you abused or neglect your child at this hearing.  The court will not set permanent custody at this hearing and of course cannot terminate your parental rights at this early stage.  

Once this is day is over, your job is to focus on the next day and the 364 days after that.  The Division will present a permanent plan for your child within one year from the removal date.  The Division will offer you services to help you, and wants to be able to present a plan of reunification.   But if your are not successful, the Division will need to present another plan.

But of course we are at an early stage now.  At this stage, it will be useful to go to my parental defense page on my main website for my inside tips for success.


Next: The Return Date and Case Management Conference 

Thursday, June 20, 2013

Real Parents, Real Stories

Real Parents, Real Stories

As I stated, my website and blog is to and for parents who are involved with the Child Welfare system in New Jersey.   In my experience, other than the death of a family member, the removal of a child from a parent's custody is the most stressful and traumatic situation one can face in life.  That's right, I put it even ahead of divorce on that list.  Divorce or the end of a relationship is traumatic, sure, but it is within the realm of experiences that many people face.  Divorce is not uncommon.   People feel that can talk to friends and family about feelings of loss after divorce, or even death.

But involvement with the child welfare system is different.  Parents are dealing not only with the removal of their child, but the stigma attached to being involved with the system.  At the same time, they feel the stress of attempting to deal with the issues that led to the Division's involvement, and struggle to comply with required services.  These stress factors can be even more difficult when parents are facing serious issues in their own lives, such as incarceration, financial difficulties, or drug and alcohol abuse.

In my years of practice I have sat next to my parents in both happy and sad moments.  I have seen many successful reunifications, and have also seen parents lose their parental rights at trial or surrender them voluntarily.  

Although I experience these emotions myself, I still cannot imagine walking in the shoes of a parent who has actually experienced them.  A former client of mine who I will call "Jennifer" (name has been changed of course), has graciously volunteered to allow me to share her story with you.  I thank her very much!  We discussed her case and collaborated on this article based on our recollections, in hopes that her story will be a source of hope and inspiration for others.

Jennifer's Story


“When my case was reassigned to Mr. Malkin, my son was in foster care for the second time.  Soon after that the Court approved the plan to terminate my rights.  My son was well cared for, but his caregivers did not agree that he should be returned to me."


"I told Jennifer not to give up hope.  She was compliant with the court orders and working very hard to achieve reunification. She had a good relationship with her son who enjoyed his visits.  But still, I had to advocate for her very aggressively, in order to convince the court not to reduce her parenting time with her son."

"Even though I was doing well, my case proceeded to trial.  I was worried about the outcome and afraid of losing my son forever."


"Jennifer could have chosen to give up her rights but instead somehow found the courage and inner strength to carry on.  Because of Jennifer’s hard work and determination, the court did not terminate her rights.  The Court saw that Jennifer’s son loved her and that his return was in his best interest.  Although not all cases have similar results, Jennifer has shown that success if possible for parents who will work to achieve it.   She has agreed to let me share her story so that other parents involved in the system will know that they can succeed as well if they put their children first.”
“Today I have a new life and a bigger family, and it is complete.  Since my son returned home I have had no involvement with the child welfare system again.”
Although many clients achieve reunification with their children within one year from removal, the Division can approve a plan of termination of parental rights (TPR) if this is not possible.  Once the Division changes its plan to (TPR), results like Jennifer's are not typical.  That is why it is important for all parents to comply with the Division and follow court orders.  Although I am always pleased to win a TPR guardianship trial, I would much prefer for that trial not to take place at all.
That said, no matter how hard the Division may argue for Termination of Parental Rights, until a court decides otherwise, your child remains yours and the outcome is not necessarily predetermined.   Not every parent chooses to stand trial, and some may choose that adoption is in the best interest of their child and surrender their rights.  But Jennifer knew that choice was not right for her or her son.  I am glad that Jennifer made this courageous decision, knowing the risk of an unfavorable outcome.  I'm glad she's doing well and thank her for sharing her story.

Tuesday, June 18, 2013

Welcome to my New Blog!

Welcome to my New Blog!

My name is Arthur Malkin. I'm an attorney in Parsippany, NJ with over 10 years of experience as a pool public defender for the Office of Parental Representation.  In that time I've handled many child abuse and neglect cases against the Division of Child Protection and Permanency "DCPP" (formerly the Division of Youth and Family Services "DYFS".   In those years I've not only gained expertise on the law, but I've gained a lot of like experience through the triumphs and tragedies of my clients.    For me, the time has come to share my knowledge and experience with the people who can most benefit from it.   So I'm creating this blog as an extension of my website,, which I will be relaunching in the summer of 2013.  I'm doing this for the benefit of all parents who have encountered the child welfare system in New Jersey.  Although this site and blog is not and cannot be a substitute  for the personalized legal advice of an attorney, I do want my site and blog to provide one place where parents can find as much information as possible about the DCPP system, from DCPP's initial contact with the family, right through appeals, all explained in plain language.

Although updates will be infrequent at first, over time I hope to provide updates about new developments in the law, and hopefully report successful outcomes in my own practice.

Please check out my website which also includes information about my other practice areas.  Also please check out my Facebook page.

I am looking forward to hearing from you.

Arthur Malkin