Howes & Howes, Attorneys at Law

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Yes, the Bill of Rights DOES apply to DYFS

One forgotten concept in DYFS work is that DYFS workers represent a government of limited powers.  DYFS workers are not taught that the constitution applies to them, but it does indeed apply to them.  If a DYFS worker comes into your home and tells you to jump, you do not need to ask “how high”.  Your best course of action is usually to consult an experienced attorney for advice on how to protect your family’s privacy.

Most DYFS workers are well-intentioned, young and pleasant.  They do not appear threatening or powerful in their persons, so it is easy to forget that they are individual representatives of a very well-heeled, powerful New Jersey state government.  DYFS is a part of the executive branch of the state government.  Their power over the private lives of individuals is limited by state and federal laws, the New Jersey Constitution and the federal Bill of Rights, and their actions are subject to review by the courts.

When DYFS receives a referral of abuse or neglect, it investigates and makes findings.  An investigative worker interviews the children and the parents and any witnesses, and will attempt to obtain different sorts of records, usually from schools or healthcare providers.  Most citizens faced with a DYFS investigation believe that they must co-operate.  While co-operation is sometimes the right path, co-operation always sacrifices a family’s privacy.

The constitution and the law limit DYFS’s power to investigate families.  N.J.S.A. 30:4C-12empowers investigations, and provides, “(i)f the parent, parents, guardian, or person having custody and control of the child refuses to permit or in any way impedes an investigation, and the department determines that further investigation is necessary in the best interests of the child, the division may thereupon apply to the Family Part,” for an order directing cooperation with an immediate investigation.

New Jersey Courts have applied the Bill of Rights to DYFS investigations.  In DYFS v. BW, 165 N.J.Super. 492 (Juv. & Dom. Rel. Ct. 1978), the court held:  “ . . . because of the enormity of the personal interests at stake, this court holds that the standard to be applied upon the application of the Division pursuant to N.J.S.A. 30:4C-12 for an investigative order when a request for investigation has been refused is the standard of probable cause as applied to criminal cases.”

Two years later, the Appellate Division modified the standard somewhat.  In DYFS v. Wunnenburg, 167 N.J.Super. 578 (App. Div. 1979), the court confirmed that a DYFS intrusion into a private home is indeed a search governed by the constitution.  However, the legal standard is not probable cause, but whether the proposed investigation is one being conducted according to “reasonable standards.” How a court will rule on “reasonableness” will be determined on a case-by-case basis.

DYFS investigations can become very intrusive and open-ended.  You have rights.  If you do not cooperate, DYFS must take you to court and prove that they are entitled to continue an investigation.  It usually makes sense to contact an experienced attorney to determine what are your options in the face of a DYFS investigation.

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