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The United States inherited its legal system from England where it had evolved from the Anglo-Norman tradition of trial by combat or trial by ordeal. The theory behind it was that whoever survived the ordeal was innocent and if you did not survive and were later proven innocent you went right to heaven.
It seems in the opinion of some people that the system has not progressed that far.
“The legal system is complex. It requires familiarity with minutia and specific laws and regulations,” said attorney and constitutional law expert Andrew Jackson, of Philadelphia.
“Regular citizens have no business going into court unrepresented. The only thing worse than no representation is bad representation,” he said, adding that bad could mean uncaring, unfamiliar, uncommitted or unqualified.
The New Jersey law, as set forth in N.J.S.A. Title 9, requires the Division of Youth and Family Services (DYFS) to investigate reports of child abuse and neglect. Once they perform an investigation--which may take months or mere minutes--the standards are not clearly set forth in the legislation. If DYFS agents say that the complaint is substantiated then they convince the ‘client’ to accept services, if the ‘client ‘ refuses, it is then that the court system becomes involved.
“I really didn’t think much of it (the investigation),” said Jerry Hall, who is entangled in a legal battle for custody of his children with DYFS, “because I didn’t think I had done anything wrong.”
It was not his opinion, however, that mattered.
Deana Ridolfo, the DYFS agent who conducted the investigation that began with a schoolgirl’s fight, thought that Hall needed help because he had “a drinking problem,” according to her report.
“She came to this conclusion because I had had two DUIs - one in 1983 and ’93. She told everybody that I had had three, which was not true, and after the last one I really learned my lesson, but in her opinion, I guess nobody can learn from their mistakes,” lamented Hall.
After speaking with him for fewer than 15 minutes, according to Hall, Ridolfo said to him, “If you don’t cooperate and get the help you need, I’ll get a court order so you won’t be able to see your kids until they’re 18.”
It was then he hired an attorney, only to find out how much power the legislation gave to DYFS.
Peter Severeid is a world-renowned expert in family and administrative law matters. He has taught law on three continents and is an esteemed professor at Temple School of Law in Philadelphia. He spoke with this newspaper about the form and purpose of the Founders in fashioning the system of checks and balances when drawing up the Constitution and their attempt to protect the interests of the common people.
He addressed the phenomenon of administrative agencies such as DYFS, which usually operate under the cover of one department or another but are in fact independent agencies.
“The basic structure of administrative agencies is that they become the legislature, judiciary and executive wrapped into one,” said the professor. “There is no doubt that it violates the basic separation of powers doctrine. However, it has been upheld by modern courts.”
Severeid believes that it may be a legislative response to alleviate court crowding and there are policies and procedures set in place although there may be the question of the subversion of Constitutional safeguards. In the case of New Jersey DYFS, according to spokesman Andy Williams, they have staff who write the policy and procedures who are made up of social workers and former DYFS agents and not civil rights attorneys.
Debbie and Jerry Hall found out in short order that even with an attorney they did not have the same legal protection as the most dangerous criminals. After they refused the services offered, DYFS Deputy Attorney General Tara Catanese petitioned the court for legal custody of the Hall children.
According to Jerry, for the first three hearings held to determine the fate of their family, he and his wife Debbie were not present in the courtroom.
“The very first hearing they went to court without us and didn’t even tell us until afterwards. The next hearing we had Mr. Sorensen representing us but we were not allowed in the courtroom and we sat in the hall the whole time. (Attorney Michael) Sorensen said they told the judge that we weren’t cooperating but nobody talked to us. I told him that they were the ones not cooperating,” he said. “On the third hearing they only gave my attorney 24 hours notice and he was out of town and we were never even told the time.”
So for the first three hearings to determine whether or not the Halls got to continue to raise their children, they were not even present.
“For centuries the law only protected women and children, as they were the property of their fathers or husbands. Child abuse legally almost didn’t exist,” Jackson explained. “Then in the ’60s all that changed, and a change was really needed, but then in the ’80s and ’90s the legislatures went berserk trying to make up for centuries of neglect by punishing even imaginary wrongs, and just about eliminating standards of proof. Allegations are now enough a lot of times.”
In 1982 the U.S. Supreme Court even changed the standard of proof required in abuse and endangerment/neglect cases from one of ‘Clear and Convincing’ to ‘Preponderance of the Evidence,’ a much easier task. The case was Santosky vs. Kramer, 455 U.S. 745 (1982).
“You would think that in cases involving the kids, they would let the kids speak,” said Jeanie Nailon who describes her experience with the court system as “horrible and frightening.”
According to attorney, John Rauh, who has offices in Rio Grande, “In a typical custody case, the judge interviews the child in camera (privately) but they do not take the stand. The older they are the more the judge listens to them as a practical matter.”
But families who have told this newspaper of their experiences said their pleas have fallen on deaf ears.
“I asked to have my son testify but they refused,” Nailon stated. When asked who “ they” were, she said the “DYFS attorney and the law guardian.”
Her opinion apparently did not matter even to her appointed lawyer, Malcolm Goddard, who, according to Nailon, “spoke to me two minutes before going into court. He didn’t argue with them and he didn’t listen to me. He told me, ‘Whatever they want goes; just do it.’ ”
Goddard was not alone in his advice. Of the eight Cape May County attorneys interviewed by the newspaper, seven of whom asked that their names not be used, they all agreed, “Don’t make waves when DYFS is involved.”
The court-selected attorney for the Halls gave them similar advice.
“When our money ran out, we asked the court for an attorney. We got a letter from the public defender charging us a $50 administrative fee and reminding us that the legal services were not free,” said Hall.
The court appointed Stephen B. Patrick, of Newfield.
In a letter to the Halls dated Aug. 28, 2001, Patrick admitted that although he has “not heard your side of the story,” he continued, “I can tell you from long experience that when a client gets into a head-butting contest with DYFS, DYFS usually wins. They have the law on their side and they have the courts on their side. He advised them to “do the services,” explaining. “This is not a matter of requiring that you agree with DYFS or even that you agree the services are necessary. The only question, it would seem to me, is what you must do in order to get the court and DYFS off your back. The simple answer is that you do the service.”
“It’s not like they teach you in school or in the movies where the lawyer fights for your rights,” observed Hall.
Nailon agreed, saying, “The first agents just decided within five minutes that I was a bad mother and after that they spent all their time proving it and the system let them do it. Nobody cared about my children, really, or me. They just had to prove they were right, not help us.
The Hall’s attorney, Patrick, appears to agree with Nailon’s assessment. In a letter dated Sept. 8, 2001, he writes to Hall, “I could tell you more DYFS horror stories than have been recounted in the papers. But in the end the solution is very much a political one. I have found that, despite their immunity from suit, judges read newspapers. And politicians have to get re-elected. No legislator wants to appear ‘soft’ on child abusers and no judge wants to risk having some horrendous damage done to a child on their watch. Beyond that there is the question of funding so that DYFS can provide services.”
Jerry Hall was bewildered by his attorney’s response. “Nobody wants to protect my two girls more than me and their mother and we don’t want other children left in danger. We care for our own children and love all children. We just want all American citizens to have the rights that the Constitution affords them. Aren’t you suppose to have rights before they take away your liberty or your kids?” he said.
Not the way the law is presently written in New Jersey.
Senate Bill 1910 seeks some reform but does not address the questions of protection from self-incrimination, state-funded legal representation and an oversight committee that includes outside watchdogs who specialize in protecting the rights of individuals.
This newspaper tried for two months to speak with the state senator who chairs the committee charged with overseeing DYFS.
He is John Mattheussen (R-4th District) and he has yet to return repeated calls asking for his input.
Sen. James Cafiero has been accessible to listen to the questions and concerns of those who have approached him on this problem and has promised to push for constitutional protections for all individual family members.
Those families that believe they have been unfairly treated by DYFS have banded together (see related story) to provide mutual support and a unified voice against a state agency that they claim is out of control and immune to the country’s founding belief of checks and balances.
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