DYFS / DCPP and Courts Defy Rights to Privacy

Those familiar with me and my work know that I am not a fan of voluntarily becoming an open book for the government. And, in general, the law tends to support such a notion. I recently became aware of a particular court who, along with the Division of Child Protection and Permanency, DCPP (formerly DYFS) has thrown that notion on its head.

By way of background DCPP / DYFS is the administrative agency in New Jersey tasked with protecting children. In a typical case brought to court DCPP will seek custody of a child because of some act or issue that interferes with a parent's ability to care for a child. As a simple example, imagine a mother who is pulled over for a DWI with a child in the car. DCPP may seek custody of that child until the mother completes substance abuse treatment and can demonstrate that there is a low probability of placing the child at risk in the future. The law provides for some safeguards for the parent. For example, the mother would be entitled to a trial, also known as a fact-finding hearing, to determine whether or not her actions constituted abuse or neglect. If she loses the trial, the court can order her to enter treatment before her child is returned to her. Prior to losing a trial, the court cannot order her to enter treatment.

This process of making a finding against a parent prior to requiring them to engage in services is written into a statute, and serves a check on the power of the court and the power of DCPP / DYFS. In my opinion, it also serves as the mechanism in which a persons' right to privacy can be pierced. If a parent is proven to have committed an act of abuse or neglect, it is reasonable for a court to order those services necessary to ensure that her children are protected. In the example above, substance abuse treatment would be a reasonable service for a court to order. Other services a court may Order may include parenting classes, counseling, etc.

The Way it's Always Been

The above illustration is pretty typical for a DCPP / DYFS case. A parent is given the right to a fact-finding trial before he or she can be ordered to complete services. Of course, a parent may choose to engage in services before a trial in order to speed up the return of her child. Nonetheless, that choice belongs to the parent and a court cannot enter an Order to the contrary.

Straying from the Norm

Every now and then you hear of a case where a court will Order something before a fact-finding hearing that seems to cross the line. I recently came across a case in which the Court seems to have brought an all new meaning to crossing the line. In this case the parent is not accused of committing an act of abuse or neglect. That's right, no one, not even DCPP / DYFS is saying that this parent did anything wrong. Instead, they are saying that they think the parent might be doing something wrong, but they need the parent to undergo a psychological evaluation in order to tell. I couldn't believe it when I first heard it. DCPP cannot articulate what the issue is. The child does well in school, says everything is fine at home, and the school seems to agree. Nonetheless, DCPP wants a psychological evaluation!

Prior to hearing of this case I would have said that DCPP would lose in court. I would have said the no judge in the State of New Jersey will force the parent to undergo a very invasive and personal psychological evaluation. My reasoning would have been based on two things; 1) the parent has not received a fact-finding trial and therefore cannot be compelled to undergo services; and 2) DCPP is not even alleging that the parent did anything wrong.

But this particular judge (who shall remain nameless) said, (and I'm paraphrasing) - if you've got nothing to hide, you will go do the evaluation. I was shocked. Since when are innocent people required to do services because they've got nothing to hide. This would never happen in other areas of the law.

I have had cases like this in the past, but DCPP has always lost in court, or backed down when appeals are contemplated. But in this case they do not seem to be going away. I have to believe that the appellate court will set the lower court straight and remind them what the law says.

Matthew B. Lun, Esq. is a New Jersey DCPP DYFS defense attorney who believes that a person has rights to privacy that can only be pierced after a person has been afforded a fact-finding hearing. Law Office of Matthew B. Lun