In a recent unpublished decision, DYFS v. S.S. the Appellate Division reversed a finding of abuse and neglect when the proofs showed that the mother separated from an abusive partner who may have been involved in illegal drug activity when DYFS became involved. In this case, the police raided a house, performed a search pursuant to a warrant and discovered a home replete with illegal drugs. However, the mother and month-old baby were found in the home, free of the smell of drugs, and the baby was unharmed.
The Court reiterated the principle that the purpose of DYFS substantiations is “to determine whether the child has been actually injured or placed emotionally or physically at risk in some significant way”. That must be the focus when defending DYFS cases – the actual harm or SUBSTANTIAL risk of harm.
The S.S. Court further noted that mom voluntarily complied with DYFS services and had regained custody at the time the fact finding hearing commenced. Thus, the sole reason for the Fact Finding hearing was so that DYFS could maintained the mother’s name on the Child Abuse Central Registry. That purpose was criticized by the Appellate Division, inasmuch as mom had significantly alleviated the conditions leading to DYFS involvement by the time the Fact Finding hearing commenced.
So, again, defense counsel is left with this conundrum. Do you advise the parent to cooperate with DYFS to expedite reunification and hope the agency capitulates? Or, do you advise the parent to defend from the outset and prevent DYFS from gathering additional information vis-a-vis the services offered? There is no simple answer. One option is to have the parent submit to services, with an agreement that they will not used against the parent in the Fact Finding hearing. But, some judges will not enforce this agreement, if DYFS learns information to support its finding at trial.
In cases where the parent is clearly being brought along for the ride with a problematic partner, cooperation with DYFS may yield expedited reunification and offer a greater defense at trial. This S.S. decision certainly gives defense counsel strong incentive to recommend cooperation with DYFS in these limited circumstances.
