DYFS Dispositional Hearings

The recent case of DYFS v. O.G. (App. Div. 2010) shows us that the Appellate Divison is going to use MCIII to shut down a lot of appeals based upon invited error, including dispositional hearings.  Thus, it is important to clarify whether the court apperance is a compliance hearing or a dispositional hearing as there was clearly some confusion in OG. It seems like the parent at issue probably thought that there would be another day to fight  but as a result of the parent consenting to a visitation schedule, the Appellate Division shut down the appeal based upon invited error.  Thus, it is important to under what a dispositional hearing is and to fight to get the child (or children) back at that hearing.

As the Supreme Court recently re-emphasized in N.J. Div. of Youth & Family Servs. v. G.M., supra, 198 N.J. at 401, there is a distinction between the initial fact-finding hearing at which the Family Part decides whether the child has been abused or neglected, and the later dispositional hearing at which the court determines “what order should be made.” See

N.J.S.A. 9:6-8.44 and N.J.S.A. 9:6-8.45. However, as soon as the fact-finding hearing is completed, the court may hold the dispositional hearing. N.J.S.A. 9:6-8.47. 


On the other hand, after the fact-finding hearing, the court may adjourn the proceedings “to enable it to make inquiry into the surroundings, conditions and capacities of the persons involved in the proceedings.”

N.J.S.A. 9:6-8.48. That is what happened in this case. After transferring legal custody of K.G. to DYFS and physical custody to the grandmother, the court held a series of compliance hearings to determine first if the parents could, through therapy and other services, become fit to have unsupervised visitation with the child, and later to determine whether physical custody should be returned to O.G. See N.J.S.A. 9:6-8.50. 


Following a dispositional hearing, the court “shall enter an order of disposition” which may include releasing the child to the parent who had custody at the time the action commenced,

N.J.S.A. 9:6-8.53, or placing the child “in accord with [N.J.S.A. 9:6-8.54].” N.J.S.A. 9:6-8.51a(3). See G.M., supra, 198 N.J. at 399. In turn, subsection 8.54a provides that “the court may place the child in the custody of a relative or other suitable person.” This section authorizes the court to fashion a disposition by placing the child in the custody of the parent who did not originally have custody at the time the Title Nine proceeding commenced: 


A parent who did not have primary physical custody, i.e., a non-custodial parent, certainly may be a “suitable person” and is obviously a “relative” of the child. Consistent with the plain words of Title Nine, we find no reasonable basis to exclude a non-custodial parent from being considered as someone with whom the court may place the child. See

N.J.S.A. 9:6-8.54. 


[G.M., supra, 198 N.J. at 404.] 

In G.M., supra, the Court held that a dispositional hearing is a critically important stage of a Title Nine proceeding: 

[U]pon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be. 

[Id. at 387-88.] 

In G.M., the children were appropriately removed from their mother’s custody in New Jersey and temporarily placed with their father in Florida, based on substantiated findings of her neglect. Id. at 400-01. However, the mother’s Title Nine rights were violated when DYFS, having previously recommended that the children be reunited with their mother, unexpectedly announced at a later hearing that it believed the children should remain with the father, and the trial court adopted that recommendation without giving the mother an opportunity for a dispositional hearing. Id. at 393. 

While the Court disapproved our determination that the trial court should have held a custody hearing of the type that would be held in a non-Title Nine matrimonial case, the Court affirmed the mother’s right to a dispositional hearing: 

[W]e disagree with the [appellate] panel’s judgment to remand for a custody determination based on the best interests of the child standard. The key deficiency of the proceeding below was not in the failure to hold a custody hearing, but in the failure to hold a dispositional hearing. 

At the dispositional hearing, both sides may present material and relevant evidence for the court to determine whether the children may safely be released to the custody of their mother, who was responsible for their care at the time of the filing of the complaint, or whether, consistent with

N.J.S.A. 9:6-8.51, some other disposition is appropriate. 


[Id. at 402.] If you are facing a dispositional hearing in any court in New Jersey and you want a DYFS lawyer on your side that will fight for you, call me now.

For more information visit http://www.njdyfsattorney.com

Posted on May 22, 2010, in News. Bookmark the permalink. Comments Off on DYFS Dispositional Hearings.

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