Allowing a Child to Be Harmed Can Result in DCP&P Action

There is nothing easy about leaving an abusive domestic situation. Similarly, there is nothing easy about navigating economic circumstances so dire that finding suitable childcare feels impossible. Yet, it's critically important for parents in New Jersey to understand that if they allow their children to be exposed to harm, the state's Department of Children and Families (DFC) and its Division of Child Protection and Permanency (DCP&P, also known as the Division) agency may take their child away – or insist upon other kinds of protective services – to keep them safe.

To better understand how DCP&P investigations and criminal prosecutions of this nature play out in New Jersey, it can be helpful to examine the landmark case that helped to criminalize allowing a child to be exposed to harm as an act that warrants DCP&P intervention in a family's business in the first place.

DYFS v. D.T.

In 1988, the New Jersey courts handed down a decision in DYFS v. D.T. The circumstances of that case unfolded over the span of just a few days. The parents of a four-month-old girl had left their daughter to stay with her great aunt, great uncle, and two cousins while they went to work one day. After picking their child up, the baby was then dropped off with a friend so that her father could attend physical therapy.

The next day, after being dropped off with the same family members, the baby became feverish. A doctor's examination later that day revealed that the baby's vagina was swollen and bruised. She also tested positive for chlamydia. The doctor concluded that the baby had been abused, that the abuse took place within roughly 24 hours, and that it had likely taken place within the last 12. The physician called the state's Division of Youth and Family Services (DYFS, now known as DCP&P). DYFS and a local prosecutor opened a joint investigation into the child's circumstances.

The possible suspects in the case were the child's parents, her great aunt, her great uncle, her cousins, and her babysitter/the family friend. Due to the fact that both parents tested negative for chlamydia, it is highly unlikely that either abused her. Yet, her parents were subjected to a four-day hearing in an attempt to determine if they had.

Prior to that hearing, the parents signed an agreement allowing the baby to be temporarily placed with relatives while they engaged in supervised visitation. However, they then took the baby and disappeared for three days. The baby was then temporarily placed in a foster home. DYFS then filed a complaint for protective services with custody. At the conclusion of a four-day hearing, a judge concluded that there was inconclusive proof to establish whether either or both of the baby's parents had abused her or actively allowed the abuse to occur.

The Appellate Court's Decision

An appellate court was asked to rule on whether DYFS's complaint should have been dismissed due to insufficient proof. It reversed the earlier dismissal in favor of the Division. While the appellate court acknowledged that there was insufficient proof to implicate either parent of having abused their daughter, it also clarified that “(the law) does not require that the Division always prove a parent either actually committed the sexual abuse or, knowing of risks, placed the child in a position where the abuse could occur.” Instead, the court invoked a legal doctrine referred to as res ipsa loquitur, shifting the burden to the parents to prove that they did not abuse the baby or actively allow the abuse to occur. DYFS intervention was allowed to continue until the parents met that burden or the trial judge was otherwise convinced that the baby was no longer in danger of being sexually abused.

What This Case Means for New Jersey Parents Today

The court's determination that the Division doesn't need to prove actual abuse or a parent's active knowledge that they are placing their child in harms way before it can insist upon protective service measures has significant implications for New Jersey parents and guardians. This decision essentially means that DCP&P can intervene in a family's business, investigate a child's parents, and insist upon taking protective action even if parents had no idea that their children were being harmed by others. In the event that this occurs, the burden may shift to parents to prove that they neither harmed their child nor actively allowed them to be subjected to harm.

This is a profound burden to bear, even when a family's dynamic is healthy and their financial circumstances are ideal. Yet, the burden placed on parents is even more significant if a parent is in an abusive relationship, cannot afford to escape a hazardous housing situation, or has so little money that affording fully-licensed childcare isn't possible.

Practically speaking, it means that a domestic violence victim could conceivably be unable to meet this burden until they're able to safely leave their abuser because, by staying in an abusive situation, they are knowingly exposing their child to a significant risk of harm. Similarly, if a low-income parent knows that their neighbors are cooking meth and they can't afford to leave, or if a parent who cannot afford licensed childcare leaves their little one with someone who hasn't been vetted by the state and something goes wrong, they could be held personally liable for that harm.

Lessons Parents Can Benefit From

Thankfully, the injustices of the broader aspects of this ruling can be mitigated to certain degrees. There are certain lessons that parents can learn from this landmark case that can potentially help them to lessen the consequences of being targeted by DCP&P if their child has been exposed to harm.

First, it is worth underscoring that DYFS only placed D.T. in a foster home after her parents took her and ran for three days. If they had abided by the original agreement to leave her with relatives, they would have benefitted from supervised visitation while their case was pending. While this arrangement is certainly not ideal, it is far better than being compelled to hand their daughter over to strangers. If DCP&P is investigating your family, cooperate. Instead of running, speak with an attorney at the Lento Law Firm right away to get the support you need to resolve the matter in your favor as quickly as possible. By cooperating, you'll reinforce the idea that you're a fit parent who is going to do what needs to be done to care for your child, even when those necessary efforts are embarrassing, heartbreaking, or downright maddening.

Second, keep in mind that DCP&P services are not all created equal. While having a social worker check in on your family now and again can be frustrating and humiliating, it is a far cry from having your child taken away. If you don't overreact to lesser forms of intervention, your case may wrap up more quickly and definitively.

Finally, know that simply because your child has been identified as a victim of abuse or neglect, know that this doesn't mean that you're guilty of abusing or neglecting them. Allowing them to be exposed to harm may or may not amount to outright abuse or neglect. Therefore, simply because DCP&P is investigating you and/or you have been charged criminally doesn't mean that you won't be able to fight back successfully. Every case is different. By speaking with the Criminal Defense Team at the Lento Law Firm, you can better determine how to respond most effectively to your particular circumstances.

Criminal Defense Representation May Be Necessary if the State Prosecutes a Parent

Parents need assistance to both remedy circumstances that are causing them to expose their children to harm and to fight back against DFC actions so that they can care for their children without direct government oversight again. In the event that parents are criminally charged with abuse and/or neglect as a result of their family's situation, they also require assistance to present the strongest possible criminal defense case possible under the circumstances. The knowledgeable Criminal Defense Team at the Lento Law Firm can aggressively advocate on behalf of the interests of parents who are navigating either or both of these circumstances.

If DCP&P is investigating your family and/or you have been charged with abuse or neglect of your child due to allegedly allowing them to be exposed to a risk of harm, know that you don't have to fight for your rights alone. Attorney Joseph D. Lento and the Lento Criminal Defense Team have significant experience defending against DCP&P action in addition to defending parents and guardians against criminal allegations of abuse and neglect. To learn more about how we can help, schedule a confidential consultation, call 888-535-3686 or contact us online. The stakes of your situation are high. Don't wait. Call today. We look forward to hearing your story.

​​​Contact The Lento Law Firm Today

When it comes to criminal defense cases, you need the right person in your corner. To learn more about how Mr. Lento can help you, call the Lento Law Firm today at 888-535-3686. or contact him online.

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