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 and return to this blog often!


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