Protecting Families from Poverty—and CPS: How Early Legal Representation is Working in New Jersey

By Keyna Franklin, Rise Parent Leader, and Cynthia Zizola, Rise Contributor

“Once a child is removed, the panic starts against the termination clock. Even though it is the agency’s burden to prove the case, it doesn’t feel that way. It always feels like it is the parent’s burden to prove they are worthy to have their child returned. Pre-litigation is not that way. It is focused on how we can stabilize families. These are poverty-driven issues, so what can we do, what resources can we provide?”

Parents struggling to provide for their children are often surprised to learn that gaps in basic care caused by poverty can result in allegations of neglect and child removal. Parents experiencing poverty or lacking adequate housing need access to resources and support, not an intrusive child welfare investigation, mandated services, or separation.

Here, Jey Rajaraman, chief counsel at Legal Services of New Jersey, explains how early legal representation to advocate for parents’ rights and needs can prevent unnecessary family separation. She also provides an update on how COVID-19 is impacting parents involved with the child welfare system in New Jersey.

Q. How does Legal Services of New Jersey support parents through early legal representation?

A. Legal Services of New Jersey (LSNJ) has been around for 50 years providing parent legal defense and supporting family preservation. We have a dedicated email address (frpreferrals@lsnj.org) and a hotline (1-888-576-5529) that parents can use to contact us with questions about housing, domestic violence, immigration, social security and child welfare. We often receive calls from parents saying: “I’m being investigated.” or “What happens if they show up at my door?” or “I might test positive. What are my rights and options?”

In August, we were able to expand our advocacy. We started to receive direct referrals from the child welfare agency, New Jersey’s Division of Child Protection and Permanency (DCPP), during an investigation. When they make a referral, we represent the parent and advocate for them with legal issues and in the child welfare investigation.

Q. How does early legal representation protect parents’ rights and keep families together?

A. When a parent calls the hotline or is referred by the agency, we inform them of their rights and what it means to be investigated.  Additionally, we make sure families are aware of their right to be supported by the child welfare agency. According to the statute, there are affirmative efforts that the State, including DCPP, should be making to help families. We want DCPP to support families and actively advocate for them in securing basic needs. Parents should not have to be afraid that their kids will be taken away because of poverty or a lack of housing.

Through our pre-litigation work to prevent children from entering foster care, we have had over 130 cases where the agency referred parents to us and did not take their children, but actually supported them with their children–stabilizing their housing, helping them get on welfare or social security, paying for arrears and rent, or locating vouchers.

Q. What are parents’ options and rights when a child protective services (CPS) worker knocks on their door?

A. We inform parents that they have a right to say, “No, I don’t believe you can come into my house.” or “I don’t believe that this is a safety concern.” We inform parents what their options are if they decide to say no to the CPS worker, and what the Division may do next.

In New Jersey, like in most jurisdictions, child protective services can remove a child if they believe there is imminent risk of harm. If that happens, within 24 hours you go to court. If the Division does not feel they have to remove the child, they can file an order to investigate the family. Another possibility is the Division could file for care and supervision. In that case, they are saying there is not a safety risk or imminent danger, but they are asking the court to be involved and to order the family to participate in services.

In all of these scenarios in New Jersey, you have a right to a public defender if you qualify, so even before you fill out paperwork, an attorney will be there to represent you. You can also reach out to Legal Services of New Jersey.

Unfortunately, there is no law at this time giving parents a right to appointed counsel before a petition has been filed seeking to remove children or if there isn’t court litigation.  However, nothing prevents parents from seeking an attorney. Like in most places, in New Jersey, the majority of child welfare cases are pre-litigation — there are over 60,000 cases open in prevention. However, even if no court action has been taken, parents in New Jersey who qualify have access to legal services through Legal Services of New Jersey.

Q: In October 2019, the New York City Council Progressive Caucus introduced a package of child welfare reform bills and resolutions to increase parents’ rights and child welfare system accountability and transparency. At a City Council hearing, New York City’s Administration for Children’s Services (ACS) and a union representing many ACS caseworkers testified that a proposed bill to require legal representation for parents during an investigation could negatively impact children. They argued that parents shouldn’t have an attorney during an investigation because it’s a social work process, not a criminal or legal process. Can you respond? 

 A. People shouldn’t be afraid of parents being fully informed of their constitutionally-protected rights. This is something that is not unusual in other areas of the law. It has been done on the criminal justice side for decades. We need to catch up.

Having your child taken—that’s the danger, that’s the trauma. What is at stake is so significant, we should be really empowering parents to be as informed and supported as possible at every level. Often, parents just want to know if they have to talk with a caseworker or what a form means. I would argue that when a parent has legal advocacy, feels informed and understands their rights, this may assist with the investigation. They may come to a mutual agreement with the investigator that might assist both sides and reduce tension and perceived danger.

We also need to dispel the idea that legal representation is going to delay access to the child. Attorney or not, there are still statutes that provide for emergency removal without a court order. There is still decision-making power and authority by the agency to separate a child from their family if they see the child is in imminent danger. 

The majority of cases are labeled as neglect. Neglect is typically not imminent and often can be prevented. There is always a belief that something really horrific happened, or it’s not poverty alone, or it can’t just be housing that got you child welfare-involved. Providing early legal representation, I see case after case where poverty is the trigger. CPS doesn’t want kids living on the street, and I understand that concern, but that’s not taking into account multi-generational poverty, racism, or institutional discrimination. These are things that are not being considered when you make that knee-jerk reaction to remove.

Once a child is removed, the panic starts against the termination clock. Even though it is the agency’s burden to prove the case, it doesn’t feel that way. It always feels like it is the parent’s burden to prove they are worthy to have their child returned. Pre-litigation is not that way. It is focused on how we can stabilize families. These are poverty-driven issues, so what can we do, what resources can we provide?

Q. Can you provide an example of how legal representation can improve the investigation process for both the parent and child welfare agency?

A. We’ve had cases where a parent is being investigated and the investigator has asked for a blanket release from their psychologist or therapist. We’ve had parents say, “I don’t want my information to be released because it says that 20 years ago I was suicidal.” Or “I experienced sexual abuse as a child and I’m afraid for the caseworker to have this information. That would be detrimental for my own therapy and I’m afraid to be judged.” The parent can’t say that to the caseworker, because it would reveal something where the caseworker would say, “I definitely want that information,” even when that information isn’t necessary to the investigation.

In one example, allegations were about the current mental health of a mother immediately after she had a baby. We were able to craft a release that limited access and addressed the parent’s concerns. The mother felt comfortable and empowered and the caseworker felt she was able to get current information for the investigation. The mother and baby were able to be released from the hospital together and went home. Everyone was satisfied. Time and time again that happens with releases or drug assessments or situations involving domestic violence. Through legal advocacy, we identify more appropriate ways to get information. This has been really critical for parents and has not caused any endangerment. If you are truly committed to keeping that family together, this could only be helpful, and it often doesn’t require a lot of resources.

Q. Do you work with families across all of New Jersey? How do you get referrals?

A. Our office is statewide and we have no limitations on immigration status. We are committed to growing early legal representation in all counties.

The majority of parents contact us through our legal services hotline that has existed for several decades. Now we also get referrals directly from judges, the public defenders office, the law guardian offices that represent children, and the child welfare agency itself.

In certain counties, the child welfare agency refers families directly. Of the 130 cases I mentioned earlier, the majority were referred by Essex County, which is the largest, most populated and most diverse county in New Jersey. It is a credit to the leadership there and that county’s commitment. They’ll say, “Our client is about to be evicted. I don’t know if this is a legal eviction. Can you look at the complaint?” We have housing attorneys that review the legal case and advocate on behalf of that client. We can try to get the case dismissed or reduce what is owed. Often the agency sees, this is a housing situation and we should support the family staying together in their home. The agency has supported families financially by paying for arrears or paying for a new apartment that is more appropriate.

Caseworkers there have been really supportive. When they see their clients getting effective legal advice and that saves the agency money and supports the family, they’re on board. We’ve received over 130 cases within a year because they’ve seen our work.

Q. Who is on the legal team that represents and supports parents and how does the legal team build trust with parents?

A. In addition to lawyers, we have a Parent Ally, social workers, and interpreters, who are all part of our holistic, multidisciplinary team. Every one of our cases gets a social worker. Our Parent Ally, Iesha Hammons, is involved in a lot of cases. She has gone to family team meetings and welfare meetings. She does a lot of one-on-one phone calls, helping with housing. We have interpreters trained in doing legal work—they understand legal terms and what they mean in a child welfare context.

Especially with referrals from the child welfare agency, it takes a lot of trust-building for a family to believe we’re their attorney, over the phone, when within 24 hours they’re about to be evicted, and the referral came from an agency they fear may remove their child. They terrified and also don’t know who we are. They are afraid we are another service provider the agency is sending them to. One more hoop to jump through. We say to them, “Even though the Division sent you to us, we don’t work for them. We work for you. You’re our client. You’re our boss. Anything you say is confidential and you’re protected under attorney client privilege. We want to advocate and get assistance to keep your family together.”

Iesha is part of our trust building because she has the ability to speak to parents on a different level than a social worker or attorney. She is able to connect with parents because of her own experience and sometimes is even more direct. She is also able to enlighten us about why a parent may come from a certain place or feel a certain way, so it’s been helpful to our team.

Q. How has the coronavirus pandemic impacted families involved with the child welfare system and early legal representation for parents?

A. In our prevention legal work, we immediately saw that vulnerable families were experiencing the pandemic in the most severe way. Clients have reported that there was no assistance from the child welfare system or government systems that are supposed to provide for families. We are seeing parents afraid that if they reach out, their children may be removed. For parents who have no status, they are afraid that they will be detained. They are experiencing classism and racism—social distancing is a privilege, and those who live in shelters and motels may be more likely to be exposed to COVID-19. There is a lot of pressure on maintaining your job and disregarding your health. 

We have had to advocate where families need support and assistance, be aware of the need for human connection and realize these are families struggling with the same fears as anyone else, yet in our society they are the least cared for and most exposed. Families are experiencing a lack of medical information, worry about health, transportation barriers, job loss, threatening landlords (before the moratorium on evictions) and food insecurity. We have to advocate in child welfare cases to make sure this isn’t viewed as a failure or a parent’s inability to provide for their family. There seems to be a belief that parents involved in the child welfare system should overcome this, that somehow the burdens aren’t as significant as for those not involved with child welfare. In fact, they are struggling with additional barriers, and gaps in the system are being made wider by the pandemic.

We’ve been connecting parents to some requirements and services—setting up Zoom for school, preparing parents for dealing with virtual online class, getting hotspots, arranging food delivery. For parents who have had an educational neglect case, there has been a break in communication already and parents don’t feel comfortable saying, “I don’t know how to use the laptop.” or “My kids didn’t do homework before and now I’m struggling with it.” Or there may be a language barrier. We have helped the parent and teacher connect over virtual systems to try to make the situation as normal as possible for kids and prevent them from falling behind, and to negotiate what is needed. For example, if the parent isn’t able to print and scan documents, we give alternatives, saying to the teacher, “Can you accept pictures of homework, instead?”

For parents with children in foster care, there has been a stop on in-person visits in New Jersey. There are FaceTime and Zoom visits, but only weekly. We are asking why it isn’t daily. In a lot of cases, grandparents, siblings, aunts and uncles are struggling to get virtual visits. Emergency hearings and compliance review hearings have been by telephone. For other trials and hearings, it varies by county in terms of whether they are taking place and the format they are taking place in.

Q. What is important for parents to know about their legal rights during this time?

A. You still have legal rights and there are directives, ordinances and protections that have been put into place that may affect you. Before, poverty or inadequate or insecure housing was never a reason to have children removed. That has not changed. Legal Services of New Jersey still has our hotline and we are still working. Do not be fearful of learning about your rights and options and asserting them. You are still an incredible parent, doing your best for your child, and that is still what your child needs.