Section 3: Table Contents
Court hearings and orders
Hearings in your abuse or neglect case will take place in court, and a judge will make decisions and issue court orders about what must be done. For example, the court may order you to get a psychological evaluation or order DYFS to provide counseling for you. Both you and DYFS must follow the court orders. If you do not appear in court when ordered to be there, or if you fail to comply with an order of the court, you could be held in contempt of court. You could then face a penalty, including the possibility of being arrested. Also, if you do not appear in court, the court may enter a default against you. This means that you will not be permitted to present your side of the case to the judge. If a default is entered against you, ask your lawyer about what you can do. Generally, if you have a good reason for not appearing, the judge will agree to set aside the default. (See flow chart of Child Welfare Court Process - At Glance.)
At court hearings, you have the opportunity to tell your side of the story, defend yourself, assert your rights, and ask the judge to order things that you want. You will need a lawyer as soon as possible to help you do these things. DYFS can recommend to the judge that your child be removed from you. It can make recommendations about where your child should be placed if he or she is removed from you, when you should visit your child, and what you need to do to get your child back. Your child’s law guardian can either agree with DYFS or make different recommendations. You have the right to object to these recommendations and to tell the judge what you think should happen.
If you do not speak English, ask in advance for a court interpreter to be present for each court hearing.
Your child’s foster parents or other caretakers have the right to come to court hearings. However, they are not parties in abuse or neglect cases and their participation at hearings is limited to giving the court information related to the case.
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Your preliminary hearing
You are entitled to a brief first hearing, which is called a preliminary hearing. The preliminary hearing will happen either when DYFS files its case against you or soon after the case has been filed. At the preliminary hearing, the judge will decide whether or not DYFS has stated adequate reasons to continue its case against you. If DYFS has removed or seeks to remove your child, the judge must decide whether or not your child should be in placement while your case is going on.
When DYFS filed this case, you should have received an order to show cause telling you to come to court on a specific date. (See How DYFS starts an abuse or neglect action.) Many parents have their preliminary hearing on that date. If DYFS removed your child on an emergency basis, without going to court first, DYFS must file a complaint within 72 business hours of your child’s removal. If you go to court then, you can have a preliminary hearing at that time. If you were not present when the judge signed DYFS’ order to show cause to remove your child, you can request a hearing and have one within three days of your request. If you do not have a lawyer at your preliminary hearing, you can ask the judge to postpone your hearing so that you can get one.
At the hearing, the lawyer representing DYFS will try to convince the judge that your child should be removed from you. Your lawyer can ask the judge to let your child stay with you or return your child immediately, if that is what you want. Your child’s law guardian may also participate in the hearing.
Sometimes, you may be able to convince the judge to allow your child to stay with you while your case is going through the court process. You can discuss with your lawyer and your DYFS worker the possibility of arranging for supervision or services that might allow you to keep your child at home. Perhaps a relative could live with you to supervise your contact with your child. Or DYFS might consent to your child staying with you if you have a home health aide or intensive in-home counseling. If DYFS or the law guardian suggests other arrangements that they think would make your child safe in your care, you should try to go along with their plan, if possible.
If you need substance abuse treatment, there are a few small residential treatment programs where a parent and child can stay together. Ask if one is available. Or ask DYFS to let you enter an outpatient substance abuse treatment program while continuing to care for your child. If your child has been removed because someone else in your home harmed your child, ask if your child may stay with you if you and your child have no further contact with that person.
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After your first appearance in court, there will be a discovery period. The discovery period allows all sides to gather information about the case and get information from each other. Your DYFS worker will continue to investigate and evaluate you, your home, and the facts in your case. Your DYFS worker and the law guardian or investigator will also visit your child to see how he or she is doing.
Your lawyer is entitled to look at the DYFS file on you and your family.
If you qualify for help from the Office of the Public Defender’s Parental Representation Unit, your lawyer can apply for money to pay for any psychological or other expert evaluations you need in this case. Although your lawyer is not allowed to have contact with your child, he or she may request an evaluation of your child.
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Some counties have mediation programs, which give parents, DYFS caseworkers, lawyers, and other interested people an opportunity to meet and try to reach solutions in abuse or neglect cases. A neutral mediator, who is a specially trained court employee, coordinates the sessions. Sometimes mediation may help the parties agree on some or all of the issues in their case.
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Your fact-finding hearing
After discovery is completed, the judge will have to decide whether or not you abused or neglected your child. You have the right to a fact-finding hearing. At this hearing, DYFS will try to prove that its claims against you are true. You and your lawyer have the right to present your view of the situation and defend against what DYFS says.
DYFS’ lawyer will present documents (papers) and witnesses to prove that the things it said about you in its complaint are true. Your lawyer and the law guardian will have an opportunity to argue, where appropriate, that DYFS’ documents should not be part of the case. Your lawyer and the law guardian will also be able to challenge what DYFS’ witnesses say by cross-examining them.
Then your lawyer will be able to present documents and witnesses on your behalf. DYFS and the law guardian will have an opportunity to object to what you presented and cross-examine your witnesses. The law guardian will also have an opportunity to present documents and witnesses, and DYFS’ lawyer and your lawyer will have a chance to object and cross-examine.
Preparing for your fact-finding hearing with your lawyer is very important. You must be sure your lawyer knows all important information about DYFS’ claims about you. Let your lawyer know about any other related facts or witnesses you think would help explain your side of the story. You and your lawyer should decide whether you will testify at your hearing.
The judge will consider all of the evidence and legal arguments made at the hearing and decide whether you have abused or neglected your child. The judge must explain his or her decision in an oral or written opinion. If the judge decides that you did not abuse or neglect your child, your child will be returned to you, and your case will be closed. If the judge decides that you did abuse or neglect your child, the court will hold another hearing, called a dispositional hearing, to decide what should happen next. See Dispositional hearing.
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Stipulating to DYFS’ claims instead of having a hearing
Before your hearing, your lawyer may discuss with you whether or not you want to stipulate to (agree with) some or all of DYFS’ claims about you. If you stipulate to any of DYFS’ claims, you agree that you will not argue that they are untrue. You also give up your right to a fact-finding hearing in this case. Instead, the judge will rely on your stipulation and make a finding that you abused or neglected your child. You cannot appeal your stipulation to child abuse or neglect once it is accepted by the court.
Deciding whether to stipulate to claims against you is a very important decision. You should discuss it carefully with your lawyer. If you stipulate that you have abused or neglected your child, DYFS can keep your child in foster care until the judge decides that it is safe for your child to live with you. The judge can also order you to participate in services.
If there are statements in DYFS’ complaint that are not true, you have a right to make DYFS present evidence to prove that the claims are true, instead of signing a stipulation.
Before you agree to stipulate, you or your lawyer should discuss with DYFS the specific facts to which you will stipulate. You should also find out what DYFS wants you to do to get your child back if you stipulate.
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If the judge finds that you abused or neglected your child, either after a hearing or a stipulation, the judge must then hold a dispositional hearing to decide what should happen next. This hearing often takes place immediately after the fact-finding hearing. The judge will generally order you to take certain steps, such as participating in counseling or other treatment, to address the problems it believes you have. The judge will also decide whether or not your child can be returned home while you are participating in services or whether you must do certain things before you can be reunified with your child. At this hearing, all parties may present additional evidence.
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If you disagree with the judge’s decision following the dispositional hearing, you have a right to appeal it. DYFS and the law guardian also have the right to appeal if they disagree with the decision. If you choose to appeal the decision, your lawyer should start the appeal process for you. The time limit for filing an appeal is 45 days from the date the judge signs the order. If the case is appealed, the appellate court will review the record of the hearing and decide whether the trial judge decided the case correctly.
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After your dispositional hearing, the judge will schedule your case for one or more review hearings to check on how you and your child are doing. At review hearings, the judge will find out whether you are following current court orders and, where necessary, make new orders in your case. DYFS and the law guardian will continue to report to the judge about your progress and your child. Often, DYFS will submit written reports about your case for the judge to consider. If a CASA volunteer is involved in your case, he or she may also submit a report to the judge. You should go over the information in these reports with your lawyer before the review hearing. At the hearing, you can correct information in a report and add additional information. You should give the court any reports or other information that show you are making progress.
When the judge finds that you can safely care for your child at home, the judge will order that your child be returned to you. The judge will probably continue your case for another few months after your child is returned to make sure that you are providing a safe, stable home for your child. Eventually, if all goes well, the judge will dismiss your case.
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If your child is in foster care or another out-of-home placement and nearly a year has gone by, the judge will hold a permanency hearing. If the judge decided that DYFS did not have to help you reunify your family, a permanency hearing will be held much sooner. At the permanency hearing, DYFS will present a plan for a permanent living situation for your child, and the judge will decide whether or not to approve that plan. DYFS may recommend any of the following:
- Returning your child to you in the near future;
- Filing a case to terminate your rights to your child so that your child can be adopted;
- Placing your child in the custody of a relative or friend;
- Having your child’s current caretakers become kinship legal guardians (where caretakers assume legal responsibility for the child, although parental rights are not terminated); or
- Placing your child in long-term foster care.
You have the right to present an alternative plan for your child. For example, you can request that the judge allow your child to live with a specific relative or family friend. Or you can ask that the child’s caretakers become kinship legal guardians so that your parental rights are not terminated.
At the permanency hearing, DYFS must show that it made reasonable efforts to help you, unless the judge ruled that DYFS was not required to help you reunify with your child.
Possible Court Outcomes
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Copyright © 2011 Legal Services of New Jersey
This information last reviewed 10/28/11