Section 1: Table of Contents
Overview of the case
DYFS files an abuse or neglect case when it believes you have abused or neglected your child. Usually, DYFS wants to place or keep your child in foster care or another out-of-home placement. In some situations, DYFS does not want to remove your child, but wants the judge to allow DYFS to check on you and your child and to order you to participate in services DYFS believes you need.
At the beginning of the case, the judge must decide whether DYFS has shown adequate reasons to continue its case.
Eventually, the judge must decide whether you have abused or neglected your child. You have a right to a hearing where all of the parties will be able to present their cases to the judge. In some instances, you may decide to stipulate to or admit to some of DYFS’ claims instead of challenging them. In that case, the court will find that you abused or neglected your child without a hearing.
If the judge finds that you did not abuse or neglect your child, your child will return home. If the judge finds that you did abuse or neglect your child, the judge must decide what should happen next.
Generally, you will be required to participate in services to help you correct the problems that DYFS believes prevent you from taking care of your child. Your child will stay in foster care until the judge decides your child can return home safely. If your child is at home, the judge may still order you to participate in services.
The definition of abuse and neglect
The law says that a child has been abused or neglected if his or her parent, guardian, or caretaker has done any of the following things:
- Caused very serious physical or emotional harm to the child or allowed someone else to harm the child;
- Created a risk that the child will be physically harmed, or allowed someone else to create a risk of harm to the child;
- Sexually abused the child or allowed someone else to sexually abuse the child;
- Harmed or created a risk of harm to the child by failing to take proper care of him or her;
- Used excessive physical punishment on the child; or
- Abandoned the child.
A judge’s decision about whether a parent abused or neglected his or her child depends on the specific facts of each individual situation. Findings of child abuse and neglect are sometimes based on physical injuries to a child, but they can also be based on severe emotional harm. Even if you have not harmed your child, a judge might find that you have abused or neglected your child because the child may be at risk of serious harm in your care.
Judges can decide that drug or alcohol abuse by a parent constitutes neglect if the parent cannot provide proper care for the child. Judges have found child neglect when parents have failed to protect a child from someone they should have known would harm the child. Leaving children alone can also be considered child neglect.
How DYFS starts an abuse or neglect action
DYFS will begin the child abuse or neglect case against you by filing court papers called an Order to Show Cause and a Complaint. You should appear at the filing of the Order to Show Cause and Complaint. If you do not appear, DYFS will provide you with a copy of the court papers. An Order to Show Cause is a special court order that tells you to appear in court on a specific date for the judge to consider your case. In the Complaint, DYFS explains how it believes that you have abused or neglected your child. DYFS must also show why it needs to remove your child from your home. Or, if DYFS only wants to check on your family, it must show why that is necessary. In many situations, when DYFS files the case, it has already removed the child on an emergency basis and DYFS is asking the judge to keep the child in foster care.
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How to get a lawyer
It is very important that you get a lawyer as soon as possible. If you can afford to hire a lawyer, you should do so immediately. Your county bar association’s lawyer referral service can suggest names of lawyers who can help you.
If you cannot afford to hire a lawyer, you may qualify for a lawyer to represent you through the Office of Parental Representation (OPR), which is part of the New Jersey Public Defender system. DYFS is required to provide you with contact information for the OPR office handling matters in the county in which you live. You will find this in formation in the papers provided to you when a com plaint is filed. You should try to contact the listed OPR office before the date you are given for the first court hearing. DYFS is also required to provide notice of your case to the OPR for any initial court hearing if a child has been removed from your custody. This initial hearing is usually called an Application for an Order to Show Cause or, some times, a “DODD” hearing. OPR has a program called Order to Show Cause Attorney Representation (OSCAR) to try to insure that a parent has a lawyer in court for this first hearing in a case.
As part of the OSCAR program, the OPR lawyer will represent you “provisionally,” which means prior to the time you actually apply for an OPR lawyer and before the court determines that your income qualifies you for representation by the OPR. If DYFS did not provide OPR with notice of your case or you did not contact OPR directly prior to the scheduled hearing, you will be able to apply for an OPR lawyer at your first court hearing by asking the judge for a lawyer. But remember, if you request a lawyer from OPR as soon as you find out about the case, you may be able to have a lawyer with you at your first court hearing.
To get a lawyer as quickly as possible, go to Children in Court Services or the family intake or family reception office at the courthouse where your case has been filed as soon as you know that DYFS has filed an action against you. Tell a court employee that you would like a lawyer to represent you in your case. Take a copy of any court papers you have and proof of your income. You will have to provide information about your income and any property you own. The court, not OPR, is responsible for determining whether you qualify for an OPR lawyer based on your in come.
Ask to be notified as soon as your lawyer is appointed. Give a telephone number and an address where you can be reached. If a week goes by and you do not hear anything, call the OPD PRU at 609-341-3832.
After your case is over, the New Jersey Public Defender’s Office will send you a bill for the lawyer’s legal services. The bill will include any other expenses, such as expert witness fees, that the OPD PRU pays in defending you. The cost of these services will become a lien for a period of 10 years on any property you own or may own in the future (such as a home, a bank account, or a car).You have the right to challenge the amount of the lien or your ability to pay. Even if you cannot pay, you will still receive legal services.
Each parent needs a separate lawyer to represent him or her in the abuse or neglect case. Separate lawyers are necessary because you and the other parent(s) involved may disagree or take positions against each other during the case.
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Legal Services Family Representation Project
You may also be able to get help from Legal Services of New Jersey (LSNJ). LSNJ has a statewide project called the Family Representation Project, through which Legal Services lawyers who are specialists in child welfare law provide advice to low-income parents in matters involving DYFS. Although its resources are limited, in some instances the Family Representation Project provides representation in child abuse or neglect cases. If you would like to apply for assistance, call LSNJ’s statewide toll-free legal hotline at 1-888-LSNJ-LAW (1-888-576-5529).
Lawyers for DYFS and your child
A lawyer called a deputy attorney general, or DAG, will represent DYFS. Your child will be represented by a lawyer called a law guardian.
The role of the judge
Judges have two important responsibilities in abuse or neglect cases. They must protect children from being harmed by their parents, and they must protect the rights of parents and children to be together if the children can stay safely at home. By deciding what has happened in your case and applying New Jersey law to those facts, the judge will decide whether you abused or neglected your child.
Court Appointed Special Advocate (CASA)
A court appointed special advocate (CASA) worker may be assigned to your case. The CASA worker will get to know your child and gather information about him or her for the judge.
This is not a criminal case
An abuse or neglect case is not a criminal case. It is a civil action. You cannot be incarcerated (put in jail) or subjected to any other criminal penalty if you lose this case.
Be aware that, in some instances, the prosecutor’s office may file a separate criminal case against you based upon the same situation. If a criminal case is filed against you, or if the prosecutor’s office is investigating you, make sure that your lawyer in your civil case knows about the criminal case. If you have a lawyer in the criminal case, make sure that lawyer knows about this civil case.
Things that happen in criminal and civil child abuse cases can affect each other. For example, admitting that you harmed your child in your civil case can affect your criminal case. And pleading guilty to abusing a child in the criminal case can affect the civil case.
The danger of losing your rights to your child
The judge cannot terminate your parental rights in an abuse and neglect case. However, if DYFS removes your child, there may be serious consequences. DYFS is required to file a court case to terminate your parental rights forever if your child is in foster care for 15 months, unless one of the following three exceptions applies:
- Your child is living with a relative who can care for your child permanently;
- DYFS shows that termination of parental rights is not in your child’s best interest; or
- DYFS has not given you the help that it was supposed to provide.
In some cases, DYFS may file a case to terminate your parental rights even sooner than 15 months. You must begin immediately to do whatever you need to do to get your child back home.
The child abuse registry
If the judge concludes that you abused or neglected your child, your name will be permanently placed on the New Jersey Child Abuse Registry (sometimes called “the central registry”). Even if your child is returned to you, your name will remain on the registry. Being on this registry will prevent you from getting or keeping certain jobs working with children and with disabled or elderly adults. It may also prevent you or others in your household from becoming foster or adoptive parents or caring for relative children. Also, DYFS is required to disclose the names of the people on the registry to police and certain other agencies.
As described in Section 4, your name will be placed on the New Jersey Child Abuse Registry when DYFS concludes its investigation with a determination that you abused or neglected your child. If the judge concludes at the end of a hearing that there was no abuse or neglect, DYFS will remove your name from the registry. If DYFS finds abuse or neglect against you but does not bring a court case, you must use the administrative procedure described in Section 4 to have your name removed from the registry.
What you say can be used against you
Things you say to DYFS workers, CASA volunteers, the law guardian, the law guardian’s investigator, psychologists, and others can be used against you in this abuse or neglect case. They can also be used in any future cases against you.
Your lawyer cannot disclose things that you tell him or her in confidence when no one else is present. The only exception is if your lawyer is preventing a crime or reporting child abuse. For example, if your lawyer knows that you are going to commit a crime, the lawyer is required to report that to the police. In addition, information provided at court hearings and in DYFS’ files cannot be disclosed to the general public.
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Copyright © 2011 Legal Services of New Jersey
This information last reviewed 10/28/11