Immigrant and refugee families face uniquely challenging circumstances. While many parents find it difficult enough to balance parenthood, careers, and other responsibilities, these difficulties are heightened for immigrant families who often face uphill battles in finding employment and assimilating into the American culture. If you are a documented or an undocumented immigrant living in New Jersey and dealing with an investigation or matter with the Child Abuse Division of the Attorney General's Office (“DCP&P”), it's important to understand that the matter may have significant consequences for your immigration status and pending family law proceedings. If you have concerns about the effects that a DCP&P matter may have on your family, it's imperative that you contact New Jersey Family Law Attorney Joseph D. Lento to assist you in your DCP&P matter.
What Exactly is a DCP&P Investigation?
New Jersey Law requires individuals who suspect child abuse or neglect to report their concerns to the DCP&P office. Unlike some other states, New Jersey is known as a “mandatory reporting state.” This simply means that, under New Jersey law, any resident who has “reasonable cause” to believe a child has been abused or neglected to report the suspected abuse to the New Jersey Department of Children and Families (“DCF.”)
After speaking with the individual who made the report, a DCP&P caseworker has 24 hours to determine if the call warrants a formal investigation. If the matter proceeds to a formal investigation, the caseworker may contact the parents and/or guardians to retrieve the following information:
- The names of the parents, caregivers, family members, etc., residing in the home;
- Relationship between the alleged perpetrator and child;
- Current or previous injuries the child may have sustained;
- Circumstances surrounding the alleged incident of abuse;
- How urgently the parents responded to claims of abuse or injury, etc.
Investigators should not inquire about immigration status during the interview. If a DCP&P investigator attempted to speak with you about your immigration status, this might be a sign of bias that can negatively affect the outcome of your DCP&P investigation and family law proceedings. If this is the case, you should contact attorney Joseph D. Lento and his Family Law Team to discuss the facts and determine the next appropriate steps.
Aside from speaking with the Parents, caseworkers can also conduct inspections. DCP&P investigators do not need a warrant to conduct an investigation. Families are also not provided with any warning as to when an inspection will take place and will only be notified of the inspection with the DCP&P investigator arrives at the home.
Although the contents of each inspection will vary from case to chase, typically, DCP&P investigators will inquire about the following:
- The cleanliness of the home;
- The location and security of any dangerous substances, including prescription medication;
- the child's sleeping arrangements; and
- whether there is adequate food and water in the home.
Although the thought of allowing your child to be interviewed by a complete stranger is scary for any parent, the caseworker will likely ask to interview the child(ren) and speak with anyone else residing in the home. Children that are nonverbal are obviously not interviewed, but the investigator will likely want to see the child and examine them to ensure that they are not being neglected, are in good health, etc. Investigators may also speak with other adults about your family. For instance, investigators may wish to speak with doctors, teachers, neighbors, etc., and inquire whether or not any of these individuals had ever had any concerns.
If, after conducting their investigation, a caseworker believes the child is in imminent danger, they may proceed with filing a request to remove a child from the home and/or file a formal complaint against the parents. It should be noted, however, that even though DCP&P may launch a formal complaint against the parent, they must make every reasonable effort to keep the child in the home.
Your Rights My Immigration Status?
Any parent and/or guardian who is owed the same rights and legal protections throughout a DCP&P case as a United States Citizen. DCP&P investigators are trained to address the unique needs of every family and child regardless of the family's race, ethnicity, culture, etc.
Throughout a DCP&P investigation, parents, and caregivers, whether they are citizens or immigrants, are under no legal duty to speak to the department's investigator or allow them to enter the home. Some additional rights that all documented and undocumented parents/guardians have to include:
- The right to refuse drug tests, physical evaluations, mental health evaluations, etc.;
- The right to refuse to sign any releases (medical, educational etc.) that the DCP&P investigator may request;
- The right to communicate with your child throughout the DCP&P investigation;
- The right to be notified about the allegations against you; and
- The right to speak with an attorney and respond to the allegations.
Unfortunately, some DCP&P investigators can take advantage of the high emotions families face in these investigations. Under no circumstances should investigators imply that they will report families to immigration authorities. If you are facing a DCP&P investigation and are concerned that the investigator is displaying bias or prejudicial treatment toward you, it's important to remember that investigators have no authority to force parents to speak with them or comply with their demands.
A DCP&P Investigation May or May Not Affect Your Custody Rights
In New Jersey, a DCP&P investigation or case is not considered a criminal matter. Unlike a criminal matter, if the court in a DCP&P case determines that the parent was guilty of child abuse and/or neglect, the consequences do not include financial penalties or jail time. Instead, DCP&P matters focus solely on the minors' health, safety, and welfare. Parties to a DCP&P matter do not “win” or “lose” a case but should instead be working towards reunifying a child with their parents.
This does not mean that parties to a DCP&P case should not proceed with caution. A DCP&P investigation can trigger a synchronous criminal matter. For example, a DCP&P investigator may have received a call from a concerned neighbor indicating that a toddler often wanders around outside alone. While responding to the call, the DCP&P investigator may notice drug paraphernalia inside the home and inform law enforcement. A criminal matter, in this case, would only exacerbate an already heated custody battle. Furthermore, while DCP&P files are most often sealed and private absent specific court orders to provide them in family law proceedings, the incriminating information contained in law enforcement records and pleadings will likely be easier to produce in court.
If Law Enforcement Does Get Involved, They Can't Call ICE
Although law enforcement officers and family law courts may become involved, New Jersey state law limits the type of assistance that police officers may provide to federal immigration authorities such as the Immigration and Customs Enforcement agency (“ICE.”) In fact, in November of 2018, New Jersey enacted new rules designed to “strengthen trust between law enforcement and immigrant communities.” Under these laws, officers may not stop, question, arrest, search, or detain an individual simply because the officer suspects that the individual may be undocumented. This means that police officers are not even allowed to inquire about your immigration status unless it is specifically relevant to the type of criminal investigation at hand.
Will A Child Abuse Investigation Affect Custody?
On its own, A DCP&P case will not automatically trigger any consequences on a parent's immigration status. In many instances, however, a DCP&P case can trigger negative outcomes in terms of a parent's custodial and visitation rights, regardless of that parent's immigration status.
While a DCP&P case is separate and apart from a Family Law litigation between two parents, a Family Law judge can take notice of the fact that one or both of the parents are being investigated for child abuse. For instance, a DCP&P investigation may indicate that one parent often drinks in excess while caring for their young baby. The other parent can then use this information in a family law proceeding as evidence as to why they should have more or sole custody. A judge in a DCP&P matter may also determine that it is unsafe for a child to reunify with their parents. DCP&P orders can range from monitored visitation to limited visitation to reduced custody, and even to the point of termination of parental rights. If parental rights are terminated, a child may be placed in guardianship or even adopted.
A Child Abuse Conviction May Lead to Deportation and Loss of Custody
There are some crimes that the United States viewed as so morally reprehensible that if convicted, the criminal defendant may face deportation. In instances where a parent is deported, this can have severe consequences in custodial determinations and orders that Family Law Judges, as well as DCP&P Judges, make. Some of these deportable crimes are described as Crimes Involving Moral Turpitude in The Immigration and Nationality Act.
Crimes Involving Moral Turpitude
A documented or undocumented parent might face deportation if their actions involved a certain level of “moral turpitude.” Crimes of moral turpitude are less defined but involve some level of dishonesty, violence, sexual elements, or as relevant to the discussion of custody, harm to children. No specific definition of a crime involving moral turpitude exists. However, individual courts typically assess whether a defendant's conduct “shocked the public conscience” so much that their crime was inherently vile, depraved, or contrary to the rules of morality. Courts are often not reluctant to determine that crimes against children meet the requisite standard of moral turpitude. In such an instance, if a DCP&P investigation led to a criminal conviction for a crime involving moral turpitude, a parent could be deported and suffer unfavorable custody outcomes.
Under the Immigration and Nationality Act, a crime of moral turpitude may lead to deportation if the immigrant has been either:
- Convicted of a crime involving moral turpitude that was committed within five years after the date of admission to the United States and resulted in a sentence of imprisonment for at least one year; or
- Convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, with neither the time of the commission of the offense nor the sentence imposed being relevant.
In other words, a parent may face deportation if they face at least a year's imprisonment for a crime involving moral turpitude within five years after arriving in the United States. They may also face deportation if they have been convicted of two crimes involving moral turpitude, regardless of when the crimes occurred.
DCP&P investigations and Family Law matters are both equally difficult on their own. When these issues intersect with immigration concerns, parents may face an uphill battle in court.
Child Protection and Permanency Defense Attorney in New Jersey
While the stress of losing your child to a DCP&P investigation can be scary enough, the custodial consequences an investigation can have on an immigrant parent can be permanent and devastating. If you are a documented or undocumented immigrant dealing with a DCP&P investigation and are concerned about the effects that the investigation may have on your family law case, attorney Joseph D. Lento and his Family Law Team at the Lento Law Firm can help carve a path forward for you and your family. Contact us online or by calling us today at 888-535-3686.