Lack of Nurturing Care in the Home Can Result in DCP&P Action

What appears to be a loving, caring home in the eyes of a judge may be different than what appears to be a loving, caring home in the eyes of a parent. As a result, parents who find themselves targeted by New Jersey's Department of Children and Families (DFC) and its Division of Child Protection and Permanency (DCP&P, also known as the Division) agency may understandably worry that the care they're providing their children may seem inadequate to both the Division and any judge who may be assigned to the later stages of their case.

To better understand what the state deems "nurturing care" of a child in their home, it can be helpful to examine the landmark New Jersey case that set the standard for this concept in practice. The experienced Criminal Defense Team at the Lento Law Firm can provide additional clarity as to how the standards set in this case may be applied to a modern family's circumstances.

DFYS v. A.W.

In 1986, the New Jersey Supreme Court ruled on a petition for termination of parental rights in a case involving five children and their parents. Each parent was deemed "limited" by the court in re: their backgrounds, economic circumstances, and mental/emotional abilities to care for their children. The state's Division of Youth and Family Services (DYFS, now known as DCP&P) was repeatedly called on to check in on the children's mother – who seems to have been a repeated victim of severe domestic violence by the children's father – and to eventually supervise their care. The father was described by a DYFS case worker as violent and unpredictable, whereas the mother was described as extremely passive and unable to function outside of her abusive relationship. They were both observed to have a level of comprehension on par with that of children.

Although the Division repeatedly worked to keep the family together, the safety of the children was called into question so many times that the court was finally called upon to rule on whether the parental rights of both parties should be terminated. The lower court ruled that at least some of the children should remain with their parents because their parents' circumstances – both cultural and economic – were beyond their control. The case was repeatedly appealed until it reached the New Jersey Supreme Court.

The Supreme Court's Decision

In its decision, the court acknowledges the right to parent one's children as far more precious than property rights and is, therefore, something that cannot be taken away lightly. Yet, the court also acknowledges the state's right to interfere with parental rights when a child's physical and/or mental health is being jeopardized.

The court roots its ultimate conclusions in the "best interests of the child" standard, which is the same legal standard that it applied to child custody cases when parents can't reach a mutual agreement as to custody and/or the terms of their co-parenting plan. Yet, the court doesn't simply substitute its judgment of the best interests of the children in this case for the parents' judgment. It acknowledges both the subjectivity of the concept itself and the conscious and subconscious social biases that influence its interpretation. Specifically, it highlights scholarly concern that parents' judgment in regard to a child's best interests tends to be upheld more often when parents are affluent or middle class and less often when parents struggle financially.

Ultimately, the court concedes that the lower court was right to focus attention on the fact that many of the parents' circumstances are beyond their control. However, this acknowledgment cannot and does not absolve the reality that the affected children lacked adequate nurturing care as a result of those circumstances and their parents' inability to manage them effectively. The court stresses that it is not the parents' limited abilities or their financial distress that calls their fitness to raise their children into question. It is whether:

  • "The child(ren)'s health and development have been or will be seriously impaired by the parental relationship;" and
  • "The parents are unable or unwilling to eliminate the harm and delaying permanent placement will add to the harm"

Essentially, the court questions whether the parental rights of the adults in question should be terminated not because the adults themselves are limited but because they are not – for whatever reason – providing the nurturing care that their children need and deserve.

What This Case Means for Today's New Jersey Parents

There are a few important lessons that New Jersey parents can learn as a result of this case. First, it cannot be stressed enough that financial challenges or mental/emotional limitations are not – in and of themselves – grounds upon which parental rights can be terminated. While the court does stress that the state retains the right to interfere in parental rights under certain circumstances, kids cannot be taken from their parents simply because their parents aren't financially stable and/or their parents struggle with mental/emotional issues.

Second, the best interests of the child standard is only applied after the court evaluates whether it is" reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." This means that if parents can prove that they're in a position to effectively end the harm that their children are allegedly experiencing, their parental rights should remain intact. DCP&P may still insist on providing support services, etc., but a parent's rights will almost certainly not be taken away if they can meet this primary standard.

Third, the court stresses that the Division is not under an obligation to keep attempting to reunite a family forever. It cites the following examples as types of parental conduct that may suggest that efforts to reunite a family are no longer reasonable:

  • Refusal to engage in therapy or other services
  • An inability to benefit from therapy or instruction due to mental retardation or psychosis
  • Threats to workers, a child, foster parents, or therapists
  • Evidence that another child in the home is abused or neglected and has been taken into care
  • Evidence that the child shows a serious adverse reaction to contact with their parent

Essentially, the court reaffirms that a parent's right to parent their child is not absolute and that the Division can reasonably stop attempting to reunify a parent and their child under these extreme circumstances.

With that said, not every DCP&P case is black and white. Say that a parent who cares for a medically complex child has been accused of harming them, even though this allegation arose from a misunderstanding and the parent is a wonderful caregiver. They are desperately concerned that the child's foster parent is neglecting that child's medical needs and – in the heat of a moment – threatens the foster parent in an attempt to underscore how critical it is that the child receives the care they need and deserve. This example illustrates how easy it can be to find oneself on the wrong side of DCP&P and risk an unfavorable outcome in an investigation and/or hearing scenario. As a result, it's critically important for parents who are under investigation to seek legal guidance proactively in an effort to better safeguard their rights and interests.

Finally, it should be stressed that the court did act to protect the children from additional injury in this case. Meaning in the rare circumstances under which parents are incapable of ceasing harm, the state may take their children away. It's important to understand that while parents have rights to parent their children, children have a right to physical and mental safety. Parents should not assume that simply because they're empowered to parent under most circumstances that the state won't step in to safeguard a child's well-being if their lack of nurturing care is extreme.

Parents Facing DCP&P Action Deserve Knowledgeable Legal Representation

If DCP&P has opened an investigation into your family and/or you're facing criminal abuse or neglect of a child charges due to an alleged failure to provide your children with nurturing care, know that experienced legal support and guidance are available. Attorney Joseph D. Lento and the Lento Criminal Defense Team understand how to successfully defend against DCP&P action as well as criminal allegations of abuse and neglect in New Jersey.

While no case outcome is ever guaranteed, the team's respected record speaks for itself. Schedule a confidential consultation today by calling 888-535-3686 or contacting us online. Your family is weathering a high-stakes situation. You don't have to leave your children's fate to the discretion of the state. Call today to learn more about how we can help you fight back. We look forward to hearing from you.

​​​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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