“Reasonableness” is imbued in our child protection laws. The agency must exercise “reasonable” efforts to avoid out of home placement. If the child is removed, the agency must provide “reasonable” services to achieve the goal of reunification. The “reasonableness” of those services is a condition precedent to termination of parental rights.
And yet, New Jersey case law is bereft of any true explication of what is considered “reasonable” for services rendered in the name of child protection. For instance, is your run-of-the-mill parenting class a “reasonable” service for the parent of a mentally disturbed, highly medicated “toxic terror” of a child with severe behavioral problems? Is “counseling” a “reasonable” service to address deep-seated psychological issues dating back to childhood, when such counseling is offered by an LCSW and not a psychologist?
And what about court-ordered services? If the division offers some services, but fails to comply with a court order providing for other services, can the totality of services rendered be deemed “reasonable”? And what about when mental health professionals that provide the court-ordered services sought by the division come up with the wrong diagnosis? New Jersey case law does not require the division to succeed in remedying the problems in a family with the services offered; however, in evaluating the “reasonableness” of those services, can a court legitimately find that a service that led a parent down the wrong path by mis-diagnosing a mental health disorder and requiring compliance with treatment of the wrong problem was, in fact, “reasonable” simply because it was sought and paid for by DYFS?
All too often, defense attorneys fail to make a probing inquiry into the appropriateness of the services sought by the division. Earlier this year, the Appellate Division decided T.S., which cautioned trial courts against surreptitiously ordering the “usual services” simply because they are the services usually ordered. Inherent in that Appellate Division ruling is an acknowledgment that over-servicing a family is not reasonable.
But aside from the sheer volume of the repetitive services offered in these cases, the issue of “reasonableness” remains an underutilized area of parental defense in these cases. When addressing the many requests made of parents in these cases, defense counsel should be ever mindful of the common sense, or lack thereof, of what is being requested.
Simply put, when baby has a wet diaper, the solution is not to give her a bottle. Similarly, when dad has an alcohol problem, the solution is not to stick him in a parenting class.
If the question being asked is, “Which came first, the chicken or the baseball,” perhaps we should be questioning the “reasonableness” of the question (i.e., the Division’s services), and not the “reasonableness” of the parent’s inability to answer a ridiculous question.
