child abuse

Supreme Court of New Jersey Assesses Constitutionality of “Not Established” Investigatory Findings by the Department of Children and Families

July 9, 2020 | Karen T. Willitts, Esq.

It happens in family and matrimonial disputes that litigants are investigated by the Department of Children and Families, which investigate claims of child abuse and neglect. In a recently published decision in S.C. v. New Jersey Department of Children and Families, the Supreme Court of New Jersey addressed whether findings of “not established” by he Department of Children and Families (DCF) without a hearing and without informing the investigated person of the opportunity to challenge and supplement DCF’s record violates due process.

The Supreme Court explained that since 2013, DCF could make one of four findings: that an allegation of abuse or neglect was “substantiated”, “established”, “not established” or “unfounded” pursuant to N.J.A.C. 3A:10-7.3(c). A finding of “not established” would mean that findings are based on some evidence of a child being harmed or placed at risk of harm, but not necessarily by a preponderance of the evidence. A finding that an allegation is “unfounded” is subject to expunction. A record has to be retained for any of the other findings. While DCF records are intended to be confidential, N.J.S.A. 9:6-810a(a) provides for circumstances in which the release of information about reports to other agencies.

In this case, a mother was accused of abusing one of her children by engaging in corporal punishment. The incident was reported to the Department of Children and Families (DCF) after the 7 year old boy refused to make a Mother’s Day card for his mother at school, claiming that she hit him with an open hand and with a spatula. When DCF interviewed the boy, he said that his mother “smacks” him, and that she has hit him on the bottom with a spatula, although he could not remember when that had last happened. He also said that his father hit him with his hand. The child’s sisters told DCF that their parents sometimes hit them with an open hand but denied that their parents hit them with a spatula. None of the children had marks or injuries. The children’s school principle stated that the boy’s parents were involved, that school personnel had not had concerns about the family, and that the boy had behavioral problems in the past but that his behavior had improved. The boy’s mother admitted to hitting the children with an open hand but denied hitting them with a spatula. She said she smacks a spatula on the counter to get the children’s attention. The boy’s father admitted to spanking the children lightly, but denied hitting the children or seeing his wife hit the children with any objects. He had seen her smack the counter with a spatula.

New Jersey Appellate Division Addresses Whether a Family Court Judge May Infer That a Defendant Who Invokes the Right Against Self-Incrimination is Culpable in a Title IX Hearing

September 10, 2018 | The Law Office of James P. Yudes, P.C.

In this Appellate Division case entitled New Jersey Division of Child Protection and Permanency v. S.K., A-2734-15 (App.Div. August 31, 2018), the defendant argues the Family Part Judge improperly drew an adverse inference against him when he invoked his right against self-incrimination under the Fifth Amendment to the United States Constitution and this New Jersey’s evidence rule, N.J.R.E. 503, in response to DCPP’s (the “Division”) request to call him as a witness in the fact-finding hearing. This issue has not been addressed in a published opinion by any court in New Jersey. The Appellate Division held that a Family Part Judge may not draw an adverse inference of culpability against a defendant who invokes his right against self-incrimination to refuse to testify at a Title 9 fact-finding hearing.

In this case, after an interview with the Division caseworker, the defendant’s two daughters, Jane and Kate, were taken to the police station for interviews as a result of Jane claiming that the defendant abused her when she was younger. Jane told the detective that the sexual abuse began when she was six years old and continued until she was approximately eleven. When the detective asked her if she could tell him what happened, she answered: “No. It’s . . . I don’t actually remember, I have[a] bad memory.” She also claimed she could not remember the last time he molested her. Through the use of drawings of male and female bodies and pointed to specific body parts to ask Jane where the defendant had touched her, Jane told the police that the defendant touched specific body parts with “his hand and dick.”She claimed he kissed her lips while she was laying down, and touched her “boobs”with his hand, and her vagina with his “dick and hand.” With respect to her vagina, she claimed he touched her “on the inside.” She estimated the molestation occurred less than 20 times.

The detective also interviewed Kate, who at first claimed that Jane did not tell her about the abuse but after the detective pressed, Kate claimed that Jane may have told her something a while ago but she could not remember.

New Jersey Appellate Division Bars the Requirement for a Parent to Admit a Criminal Wrongdoing as a Condition to Seek Parenting Time With One’s Child

August 25, 2017 | Karen T. Willitts, Esq.

On August 15, 2017, the New Jersey Appellate Division approved for publication the decision in the matter of E.S. v. H.A (A-3230-14T2 and A-3256-14T2), in which the Appellate Division addressed whether a parent may be required to admit to a crime as a condition for that parent to be able to make an application for visitation with one’s child. The Appellate Division concluded that parents cannot be required by the state to forego their Constitutional right against self-incrimination as a condition to seek custody or visitation with their child. Continue reading ›

Child Abuse – If you see something, DO something.

May 19, 2017 | The Law Office of James P. Yudes, P.C.

We have all now probably seen or heard the public service announcement of “If you see something, say something.” which is usually in the context of witnessing suspicious package or person. On May 17, 2017 the Supreme Court of New Jersey, in affirming the ruling the of the Appellate Division in the case of New Jersey Division of Child Protection and Permanency v. J.L.G and In the Matter of B.G., M.A and M.G., (A-1746-13T2), sent a clear message to individuals that witnessing a domestic partner abuse a child and doing nothing to stop that abuse can lead to a finding that the witness also abused the child. Continue reading ›

New Jersey Appellate Division Addresses the Due Process Rights of Mother Faced with an “Established” Finding of Child Abuse or Neglect Without an Evidentiary Hearing

February 6, 2017 | The Law Office of James P. Yudes, P.C.

On February 1, 2017, the New Jersey Appellate Division published its opinion in the case of New Jersey Division of Child Protection and Permanency v. V.E., A-0586-15T4 — A.3d —- (2017). V.E. is the mother of R.S. now age nine. V.E. appealed an administrative finding of the New Jersey Division of Child Protection and Permanency (“DCPP) that “established” a finding of abuse or neglect without her first being given an evidentiary hearing. The Appellate Division reversed the decision of the trial court to not afford V.E. a plenary hearing “because an established finding is a finding of child abuse or neglect under N.J.S.A. 9:6–8.21(c)(4), subject to disclosure as permitted by N.J.S.A. 9:6–8.11a(b) and other statutes, due process considerations require a party against whom abuse or neglect is established be afforded plenary administrative review. The agency’s denial of an administrative hearing is reversed.” Continue reading ›