This portion of the web page is for general information about common questions about various areas of law.
Litigation against the New Jersey Division Against Youth and Family Services
Abuse and Neglect
I have worked since 2002 a Pool Public Defender for the Office of Parental Representation (OPR). I handle these matters in Morris and Sussex Counties. In that capacity I have developed expereince litigating cases against the Division of Youth and Family Services (DYFS). As of April 1, 2010, I am relocating my office to 181 New Road, Parsippany, NJ 07054 to better enable me to serve my OPR clients and to concentrate in that area .
DYFS may initiate litigation against you upon removing your child(ren) from your home. DYFS may also intitiate litigation even if DYFS seeks to maintain your child(ren) in your home under its "care and supervision." In either event, these are obviously extremely serious matters and you must deal with the legal isses immediately.
If DYFS removes your children or intitiates litigation against you you must take the following steps:
1. Come to Court. If DYFS has execued an emergency removal of your child(ren), you must come to court on the date indicated in the Notice of Emergency removal. If DYFS has issued a Care and Supervision case, the papers will include a court date. In almost all emergency removals (called Dodd removals) the court appearance will be two business days after the removal.
2. Get a Lawyer. You should contact the local Office of Parental Representation in your county to determine if your are eligible for an attorney. In many cases OPR attorneys are aware that a case has been filed against you and will meet you in court. You will need to fill out an application to sdetermine your income eligibility. The great majority of parents who are involved in DYFS litigation qualify for representation through the OPR. If you do not, you may contact me for a consultation regarding private representation.
What happens in court?
If your children have been removed, upon your first apperance, you may consent to out of home placement. If you do not, the court will conduct a short hearing regarding the removal, at which DYFS need only present minimal evidence justifying its actions. This hearing is analogous to a preliminary hearing in a criminal case. Your lawyer may try to challenge DYFS to a limited degree. However do not be surprised if your lawyer does not present your case at this time. The purpose of the initial hearing is simply for DYFS to establish the reason for the placement. The court will set another court date within the next two weeks. You have the right to a factfinding hearing that will be scheduled at a much later date, in which you may choose to have a full hearing regarding the allegations against you. Your attorney may advise you to waive that hearing if you can admit to one or more allegations (usually the least serious) in the complaint.
During the course of litigation, the judge will order you to participate in services that will assist you in correcting the problems that led to the removal and/or litigation. Your cooperation with those services is essential for a successful outcome of your case. DYFS has one year from the date a child is removed to propose a permanent plan for the child to the court. If your case is still open 12 months after the removal date, DYFS will schedule a "permanency hearing to seek a permanent plan for your child. If reunificaiton with a parent is not possible at that point, DYFS needs to present another plan which can involve termination of parental rights followed by adopttion by relatives or foster parents. In that event DYFS needs to intitate new litigation. Parents who have been represented by OPR need to reapply so that their public defender can continue in his or her representation. DYFS cannot terminate your parental rights without your consent. If you do not consent, you have the right to a trial.
Terminaton of Parenal Rights
If DYFS has not reunited you with your child after one year, and the court has aproved a plan for Termination of Parental Rights, you have a decision to make, specifically, whether or not to proceed to trial. Many parents at this point decide that they can no longer care for their child. In many cases DYFS will offer an "identified surrender" to a relative or family friend, who may have been caring for your child for an extended period. Such a surrender is made with the udnerstanding that your child will be adopted by a specific person known to the birth parent, and would become void if the adoption does not take place. In that event, the surrender would become void and your parental rights, including the right to trial would be restored.
In some cases DYFS will only allow a general surrender which can never become void. In such cases the birth parent has no say in who will adopt the child.
Either type of surrender is final. The birth parent may not change his/her mind. After a surrender, the foster parent may adopt your child and would have sole control over what if any access you will have to your child.
If you do not surrender, your case will proceed to trial. You will be required to submit to new psychological and bonding evaluations to be conducted by an expert chosen by DYFS and perhaps also an expert chosen by your child's lawyer (called a law guardian). Your attorney will select an expert to conduct similar evaluations for the defense. Your cooperation with all these evaluations is essential
No parent wants to face trial for Termination of Parental Rights! Your cooperation with DYFS in the year after removal is absolutely necessary to avoid this outcome! Many of my clients have achieved successful reunifications. However once the case plan is Termination of Parental Rights, it is almost impossible to successfully defend such an action against DYFS.
Don't try to fight DYFS alone. Make sure you have the best legal representation to assist you! Contact your local OPR regional office or Mr. Malkin for more information.
Bankruptcy
Sometimes, people get into financial trouble and cannot repay their debts. In desperate times, bankruptcy may be the answer. Federal Law governs bankruptcy. There are a few types of bankruptcy. For individuals, Chapter 7 bankruptcy offers a fresh start while protecting personal property through exemptions. Chapter 13 bankruptcy offers restructuring of debts and is recommended for debtors who own real property and wish to keep it. The new bankruptcy law will substantially affect the rights of some debtors.
New Bankruptcy Law
NEW BANKRUPTCY LAW TOOK EFFECT OCTOBER 17, 2005.
We are a Debt Relief Agency. We help people file for Bankruptcy Relief under the Bankruptcy Code.
The new law establishes limits on the relief a debtor may receive. Many debtors who might have previously qualified for Chapter 7 relief will now need to repay some of the debt. Specifically, debtors could have their Chapter 7 cases converted to Chapter 13:
¨ if the debtor can earn $100.00 per month, or $6000.00 over five years will no longer qualify for Chapter 7 relief and must file under Chapter 13 if this surplus would allow the debtor to pay 25% or more of the unsecured debt,
¨ or if the debtor has at least $166.67 ($10,000 for 5 years) in surplus monthly income regardless of the amount of unsecured debt. The law creates a “safe harbor” for low-income debtors. To qualify for the “safe harbor” such debtors must earn less than the median income for their state of residence.
Credit Counseling and Financial Education
All debtors will be required to obtain credit counseling before filing for bankruptcy. In addition, all debtors will need to complete a course in personal finances before receiving a discharge from bankruptcy. These provisions were not included under the previous law. I will provide information about the credit counseling and personal finance course at your initial consultation.
Extension of Discharge Period.
Under the old law, the period a debtor could not receive a second discharge from bankruptcy until six years after the previous discharge. The new law extends the limit to eight years. Also for the first time, the law will now establish a limit of five years between Chapter 13 filings.
Tougher Limits on Pre-Bankruptcy Spending
The new law requires debtors to pay back all credit card debts of $750.00 or more unless the purchases were deemed "essential." The old law sets the threshold more generously at $1075.00.
Auto Loans
Under the old law, Chapter 13 debtors may reduce the value of an auto loan from the total remaining balance to the current market value of the vehicle. Under the old law, if a car is worth $10,000.00, and the debtor owes $13,000.00, a debtor need only repay the lower amount. Under the new law, a debtor must pay the full amount.
What Does It All Mean To You?
This new bankruptcy law was supported heavily by the large credit card companies, many of which contributed large sums to the President's campaign, and also to the legislators who voted for this bill. Many consumer groups opposed this legislation because it disadvantages those legitimate debtors who simply fall on hard times due to illness or unemployment.
The bottom line is that many debtors who previously could be candidates for a Chapter 7 discharge will be forced into Chapter 13 plans. All debtors will now have to take the time to get the credit counseling and complete the course in personal finance. In short, the new law is much less favorable to small consumer debtors.
Other Important Bankruptcy Rules
All Bankruptcy files attending creditor’s meetings must provide a photo ID and also proof of Social Security Number (Social Security Card, pay stub, etc.). If you do not have these proofs, your creditor’s meeting will be adjourned and the disposition of your case will delay as a result. Therefore, at the time of filing, please make sure you will have these proofs available. To verify your income, under the new law, you must now also provide pay stubs or other proof of payment at the creditor’s meeting.
Fees
For Bankruptcy Fees, see information posted on The Law Office page.
I have the bankruptcy forms on computer to automate the process. After filing, the debtor will receive notice of a creditor's meeting. The debtor must appear at the meeting. In most instances involving individuals, the creditors will not appear. Usually the creditors will not object, and in most cases, the debtor will have nothing left over after exemptions to pay the creditors. After expiration of the period in which the debtors may object, the debtor will be discharged under Chapter 7. Chapter 13 debtors will be subject to a plan to repay the debts over a period of time. again. Thank you for your interest!
