When eight-year-old Jose M. complained to his teacher about his parents, he triggered a chain of events that changed a New Jersey legal precedent and focused scrutiny on the practices of the child welfare system. It began with Jose's revelation that his mother caused his bruises.
The school reported his complaint to the Division of Youth and Family Services (DYFS) and a social worker came to Jose's home that same night. Theodore Sliwinski of East Brunswick New Jersey, attorney for Jose's mother told The Forensic Echo that his client felt the social worker would not listen to her. She became offended at the persistent questioning and the exchange became personal. Jose's parents refused to answer the social worker's questions, and the standoff escalated. The DYES would later tell the court that the social worker was concerned about the rising level of anger in the house and feared it was directed at young Jose.
The social worker telephoned her supervisor for advice, and the police were called. Jose was forcibly removed from his home and spent the next year at a group home for foster children while his mother and step father engaged in mortal combat with the DYFS. The agency claimed Jose's mother and stepfather abused and neglected him. A ten day trial ensued at which sixteen witnesses testified.
According to Attorney Sliwinski, the social worker that made the controversial home visit did not testify. At the trial's conclusion, the judge vindicated Jose's parents and commented that if anyone was abused and neglected during the ordeal caused by the DYFS, it was Jose's mother.
The vindication of Jose's parents came at a high price. The family exhausted their financial resources in the protracted litigation over what they believed were non-meritorious and careless charges. They demanded reimbursement for their attorney's fees, arguing that the agency was subject to the sanctions available through the frivolous litigation statute. The parents relied upon previous case law which held that the state and its subdivisions were subject to the statute (see Matter of K.L.F., 646 A.2d (Ch. Div 1993)). The Superior Court of New Jersey addressed the narrow question of whether the DYFS had a duty to "stop, think, investigate and research" before removing a child from the home.
Holding: The agency was exempt from the frivolous litigation statute. The legislature intended for the DYFS to have an unfettered ability to protect children. Efforts to deter that power would result in hesitancy on the part of a caseworker to act swiftly and protect a child in ambiguous circumstances. The prior case law relied upon by Jose's parents contained unfounded assumptions of the legislature's intent.
Jose's parents were undeterred by the decision of the New Jersey state court. Nancy Alvarez, an associate with Lansner and Kubitschek in New York City, has filed a civil rights claim in federal court against the DYFS on behalf of Jose's parents. As for Jose, his mother claimed he was sexually abused while hospitalized during the month following his removal from the home. The child has a separate action pending against the DYFS and the hospital.
Editor's Note: The state of New York has recently passed legislation preventing social service case workers from testifying against the decision of the child protective agency to remove a child from the home.
| Robert Kinscherff, M.D. Children's Law Center |
Dr. Kinscherff comments: It may not have been an error to remove Jose on an emergency basis. Allegations of physical punishment, an alleged refusal by the parents to discuss the allegations, a concern that parental anger was being directed at the child, and a highly volatile situation involving the police may have created the kind of ambiguous situation referred to by the appeals court. It would be unwise and often unsafe to vulnerable youngsters if child protection workers were unduly constrained when making judgments regarding emergency removal under such circumstances. However, errors of judgment may have been made in the subsequent investigation and case management that kept Jose out of the home for a protracted period of time.
It would be unsafe to vulnerable youngsters if child protection workers were unduly constrained when making judgments regarding emergency removal.
Are there other legal options left for parents? It may be possible to file a professional licensure action. Errors of judgment by licensed mental health professionals that fall below the relevant standard of care should be the subject of a complaint by the licensing agency. The action would not result in monetary compensation to the parents, but could subject the licensed professional to possible sanctions, conditions upon practice, or revocation of license. Or, depending upon the applicable jurisdictional statute, it may be feasible to file a professional malpractice action against the professional in his or her individual capacity. The search for the key to the courthouse begins with a thorough examination of the professional standard of care to which mental health professionals are held.
