I want to thank everyone who responded to my e-mail. In particular, Marques Jones, David Tawil and Francesca Blanco who even contacted me by phone. I considered everybody's opinions before I advised my client of her options. Unfortunately, as some time is the case, clients contact you later rather than sooner. By the time I found out about the problem, the interview had actually occurred.
Original Message------
I would not be so quick to advise cooperation on these limited facts. There is a calculus in determining when and if to cooperate with the Division during the investigative phase of a case. If, for example, the risk of a Dodd removal is low (or if the parent is non-custodial, etc.) and the sole concern is parental drug use, then it may be best not to cooperate until the OTI is filed. I recently had a case in which the Division threatened a client with an OTI and it took the Division four weeks to file it. In Lucy's case, if the client is using, not cooperating could buy the client some time to stop using and produce a clean screen. Also, a potential defendant can learn a lot from the Complaint for OTI, such as what the Division knows from interviewing the child and from collateral interviews, etc. It would be helpful to know that before the client submitted to a drug screen and an interview. What's more, the Division will often dismiss the Complaint for OTI on the day of the OTSC if the client agrees to cooperate after reading the OTI Complaint.
In my opinion, the risk in a finding of abuse/neglect is mostly based on the facts that are born of the investigation, not so much on the subject's cooperation at the commencement of the investigation.
DCPP defense is about half my practice. We in the child welfare defense bar are not often lucky enough to have clients who consulted with counsel at the beginning of the investigation. In my last two consults with potential clients in the investigative phase of a DCPP case, both involving allegations of third-party sex abuse of the child, I advised one to fully cooperate and one to politely cease cooperating. I also advised both that it was premature to retain counsel. Both called me back with a thank you and to advise the case was closing. It doesn't always work out so well, but it's too complicated for cookie-cutter advice.
The recent two-part WNYC radio story on racial disparity in DCPP removal cases may be somewhat informative here, as it deals with drug-related abuse/neglect cases. It's all part of the calculus.
When Race and Drugs Intersect, Children More Likely to Enter Foster Care
| WNYC |
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| When Race and Drugs Intersect, Children More Likely to Enter Foster Care |
| (JGI/Jamie Grill/Getty) The New Jersey Division of Child Protection and Permanency can come into your life with one phone call. "A person may call in and say, 'I saw a 2-year-old outside on the porch. I think there's marijuana use or drug use occurring in the home,'" said Amy Vasquez, a lawyer who represents parents in child protective cases. |
| View this on WNYC > |
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Jordan Stern Esq.
Law Office of Jordan A. Stern
Chatham NJ
(973)632-3526
www.njsternlaw.com
"If there's one thing you should take from this class, it's this: Read the statute to the very end--to the very last period." -Prof. George C. Thomas III, Rutgers-Newark School of Law
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Original Message:
Sent: 05-28-2015 12:58
From: Lucy Agostini
Subject: Department of Children and Families
Has anybody had much experience with the Department of Children and Families, formerly DYFS? I just learned from a client of mine that she apparently received a few letters from the department asking her to call them. The letters were addressed to Whom It May Concern and were slipped under her door. Foolishly, she ignored them. When she finally did reach out for the Division, they came to the house and interviewed her 4 year old. They now want her to submit to a drug test tomorrow. Can the Department require her to come tomorrow and if she doesn't go and advises them in advance that she can't do this, are there any immediate ramifications. I am under the gun here or I would research this myself.
Any help is appreciated.
Lucy
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Lucy Agostini Esq
Verona NJ
(973)239-7288
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