Articles Posted in Removal

I often get asked questions about the Division of Child Protection & Permanency, more commonly referred to by its old name, DYFS. Specializing in child abuse and welfare defense, it is not uncommon for both individuals and family law attorneys who do not specialize in this area to have questions when the Division becomes involved with a family. One frequent question is whether it is necessary to retain an attorney if the Division has not actually taken parents to court, but rather is involved with the family on what I would refer to as an administrative level.

To answer this question, it is important to understand the role of the Division of Child Protection & Permanency on at least a basic level. The Division is responsible for investigating calls alleging abuse or neglect of a child. These calls are often anonymous and there is no minimal level of proof that triggers an investigation. When the Division gets a call, they must investigate. Investigating the allegation may include coming to the family’s home and assessing for any safety concerns, speaking to both the parent(s) and the child(ren), and speaking to professionals involved with the child(ren) such as the school or daycare and their pediatrician.

Upon completion of its investigation, the Division will make one of four findings: Substantiated, Established, Not Established and Unfounded. A finding of Unfounded means there is not a preponderance of evidence that a child has been abused or neglected and the evidence indicates the child was not harmed or placed at risk of harm. Such a finding will not be reported and remains confidential, and often any Division records regarding the allegation and investigation will be eligible to be expunged after three years (understand this is not always true). A finding of Not Established again means that there is not a preponderance of evidence that a child has been abused or neglected, but some evidence indicates the child was harmed or placed at risk of harm. This finding will not be reported and remains confidential, but the Division’s records may not be expunged and will be permanently maintained by the agency. A finding of Not Established may be appealed, but only to the Appellate Division within 45 days of receipt of the finding. pexels-pixabay-236215-300x198

In enacting New Jersey statute, N.J.S.A. 9:2-2, the Legislature established a mechanism and25ebc4898eb30bc0cd7290a9cc18a32e-300x200 procedure for a divorced or unmarried parent when seeking to move with one’s children outside the state of New Jersey.  The statute provides:

“When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”

The Courts in New Jersey have on several occasions interpreted this statute to address the standard for the family courts to apply when one parent wants to move out of New Jersey with the parties’ children, and the other parent objects to the children making such a move.   We addressed this standard in a previous blog with regard to parents having a shared 50/50 custodial arrangement based on the decision of the Appellate Division in Bisbing v. Bisbing, 445 N.J. Super. 207 (App.Div. 207), affirmed in part, modified, 230 N.J. 309  (2017).  In another blog, we addressed the standard for relocation based on the factors outlined in Baures v. Lewis, 167 N.J. 91 (2001).  In those cases,  before the children were removed from New Jersey, an application was made by the parent seeking to move.  Does that have to be the procedure?  Can the parent make that application after the move?  Is it the obligation of the objecting parent to make an application objecting to the children’s removal from New Jersey?

In the published Appellate Division opinion in NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.O. and M.C.D. A-1871-16, (App. Div.  Oct. 30, 2018), the AppellateIMG_1930-1-300x225 Division addressed the 2011 emergency removal of two children, ages 7 and 2, from their undocumented immigrant parents. While the two children remained in resource homes, the parents were removed from the United States. The mother was prohibited from returning to the U.S. for 10 years and the father was prohibited from returning to the U.S. for 20 years. In 2013, the parents appeared by telephone, represented by counsel, and entered into an identified voluntary surrender of their parental rights to a family they had identified to the Division as a potential resource placement. Both of the parents confirmed that in the event the family whom they identified for resource placement did not adopt their children, then  their parental rights would be reinstated and litigation would be reopened. Ten months later, the trial court ruled against moving the children to the family identified as a potential resource placement. Without notice to the parents, the trial court vacated the identified voluntary surrenders, reinstated the biological parents’ parental rights and reopened the guardianship litigation. Thereafter, the father was provided with services needed for reunification with the children.  The mother could not be provided with reunification services because she could not be located.  She failed to keep in contact with the Division after leaving the U.S.   She ultimately resumed living with the children’s father, but both parents were inconsistent in maintaining contact with the Division.

Neither of the children speak Spanish. One of the children had a language disorder that would make it difficult for him to learn Spanish if he were sent to live with his parents. Additionally, the children had bonded with the resource parents and wanted to be adopted by them. The trial court found that termination of parental rights was in the best interest of the children.

The parents appealed the trial court’s decision, arguing that their due process rights were violated because they did not receive notice of the pending dissolution of the identified surrender and because many of the hearings that were before the termination trial and were not held on the record. Even though the parties did not raise these arguments in the trial court, the Appellate Division agreed that the parties should have been notified before the identified surrender judgment was vacated. More importantly, the Appellate Division stated that every proceeding should have been placed on the record even when the parents were in agreement with the provisions of the order being entered. All Children In Court proceedings resulting in orders should be on the record. Particularly when the parents, who have not unconditionally abandoned their rights, are not parties to the proceedings. Nevertheless, the failure to do so in this case was not fatal because the parents rights were restored and they were parties to a full trial on the merits.

TANGEL 13he jurisdiction of the Family Part of the New Jersey Superior Court to make orders determining custody is based upon the common law doctrine of parens patriae, which imposes upon the court an affirmative duty to protect the best interests of minor children. The members the New Jersey Judiciary that serve our State in making these decisions will tell you that these decisions are some of the most difficult they have faced in their professional careers and also some of the most rewarding. On December 15, 2015, the Supreme Court of New Jersey issued an opinion modifying and affirming the Appellate Division’s decision denying the appeal by the New Jersey Division of Child Protection & Permanency in the case of New Jersey Division of Child Protection & Permanency v. K.N. and K.E., 435 N.J. Super. 16 (App.Div. 2014), wherein the “Division” appealed from a June, 2013 order that awarded custody of T.E. (“Tommy”), the six-year-old son of K.N. (“Kara”) and T.E. (“Kevin”) to his maternal grandmother as a paid resource placement parents. Continue reading ›

In a recently published opinion, dated February 19, 2014, the Appellate Division analyzed and reversed a trial court’s decision declining to gavelexercise jurisdiction pursuant to New Jersey’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (commonly referred to as UCCJEA).  In this particular case, designated S.B. v. G.M.B., the trial court made a determination  to decline jurisdiction, in favor of the courts of Ontario, Canada, despite the fact that this relief was not specifically requested by either party.  Continue reading ›

file0002082373718In a perfect world, the issue of relocation or removal would never come up in the context of either divorce litigation or a post-judgment application because parents would be able to live in relative close proximity to one another and cooperate for the best interests of their children.  Continue reading ›