DEPARTMENT OF CHILD PROTECTION AND PERMANENCY (formerly "DYFS")
APPEALS - CIVIL AND CRIMINAL
e can file an answer, and, if your situation warrants, a counterclaim. We can also represent you in the Court Sponsored Foreclosure Mediation Program. For information on this program, click on this link: http://www.judiciary.state.nj.us/civil/foreclosure/index.htm.
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HERE ARE A FEW OF THE FORECLOSURE ACTIONS WHICH WERE DISMISSED. THE BANKS WILL HAVE TO RE-START FORECLOSURE PROCEEDINGS FROM THE BEGINNING, GIVING OUR OUR CLIENTS MORE TIME TO WORK THINGS OUT:
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Whenever we invest our money in a stock, we assume the risk we will lose it. But if you made the investment which resulted in loss upon the advice of a stockbroker, your stockbroker may have some responsibility for your loss. Did your stockbroker use reasonable diligence in evaluating your ability to take on the risk of the investment, the “know your customer” rule? Did your stockbroker engage in “churning” - excessive trading not intended to enhance the value of your portfolio but to earn more commissions?
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Parents have a fundamental liberty interest in the care, custody and management of their children. However, moral and humanitarian principles, and our own self-interest, mandate that we invade this liberty interest to protect children from harm.
Children properly cared for tend to become productive members of
society, while children neglected or abused make up a disproportionate percentage of society's problems.
If The Division of Youth and Family Services is involved in
your life or if you have been accused of neglecting or abusing your
children, you are invited to contact me. Maybe I can help.
Division of Youth and Family Services v. J.L. and T.L., In the Matter of O.L., 400 N.J. Super. 454 (App. Div. 2008) shows the importance of expert testimony in DYFS proceedings. The trial judge found for the parents, holding that the Division did not meet it burden that the parents had abused their daughter and the Appellate Court affirmed and the parents and daughter were re-united.
O.L was born on December 17, 2005. Her mother T.L. and her father J.L. were not married but lived together in a long term relationship. The defendants regularly took their daughter O.L. for wellness checkups and to address other medical issues to include, but not limited to, orange in O.L.’s spit-up and projectile vomiting. On March 14, 2006, when O.L. was almost three months old, T.L. noticed O.L.’s spit up was red, and she brought O.L. to the Jersey Shore Medical Center (JSMC). JSMC, among other things, performed an endoscopy which revealed “severe irritation and raw marks” in O.L.’s stomach.
JSMC also notice bruises on O.L.’s right leg and the doctors there decided to conduct a skeletal survey. The results were negative and O.L. was discharged with specific diet instructions. On March 23, after noticing blood in O.L.’s spit up, T.L. brought O.L. to the doctor who expressed concern over her weight and recommended rice be added back to her diet.
Four days later, T.L. called the doctor and asked if prune juice could be added to her diet, but T.L. also noticed O.L. was holding her leg in an unusual position and that the leg was swollen. T.L. called both the maternal and paternal grandmothers and O.L.’s doctor who told T.L. to immediately bring O.L. in. Both grandmothers accompanied T.L. and the doctor told them to bring O.L. to the Monmouth Medical Center (MC).
Upon evaluation, MC suspected abuse and contacted DYFS. It was found that O.L. had suffered multiple fractures to both legs, a possible fracture to one rib and a possible fracture of the right distal radius. T.L. explained that though other adults had access to O.L., to include the grandmothers and family friends, none of them were ever left alone with O.L. T.L. also offered several theories as to how the fractures might have been accidental.
On March 31, 2006, DYFS initiated a Title 9 action and was granted legal and physical custody of O.L. The fact finding commenced on November 30, 2006 and spanned nine days. It concluded with an oral decision of the trial judge rendered on April 10, 2007.
The Division’s medical expert, a pediatric radiologist, explained that the fractures were “highly suspicious” of child abuse and rejected defense theories that the injuries could have been caused by O.L.’s other medical problems or by restraints used when medical procedures were performed upon her. But:
When asked on cross-examination whether a lay person should have recognized O.L.'s injuries prior to the onset of swelling, she acknowledged that O.L. did not exhibit any outward signs of injury until that time. She also acknowledged that she could not conclusively determine how the injuries were caused, nor could she determine how much force was inflicted in order to cause the injuries.
O.L.’s parents requested their daughter be evaluated at the Children’s Hospital of Philadelphia (“CHOP”) for other possible causes of O.L.’s fractures, to include osteogenesis imperfecta, all of which were found to be non-extant. T.L. was found to have osteopenia, but the Division’s experts opined that this would not effect O.L. The Division also presented the evidence of a treating pediatrician at CHOP and the Division’s medical consultant on
potential child abuse cases that O.L.’s fractures “. . .were ‘highly suggestive of inflicted injury’ and ‘consistent with non-accidental trauma.’”
The Division supplemented the medical testimony with the caseworker’s and the Division’s medical consultant’s description of the father J.L. being “anxious, fidgety, and acting in an inappropriate manner” when he was interviewed on March 28, the day after DYFS became involved. J.L. also acknowledged in the interview that he had an alcohol problem in the past, had been sentenced to seven years in prison for a motorcycle accident involving alcohol, was in A.A., and that he had been alone with his baby daughter.
The trial judge granted the defendants’ motion to dismiss the medical neglect aspect of the case because there was no evidence that the defendants did not seek medical attention for O.L. The trial judge refused to dismiss the abuse allegation, however, because she found the Division had made a prima facie case of child abuse, “However, the Court will revisit this, obviously, with regard to the issue of abuse, at the conclusion of all of the factual evidence.”
The defendants presented several character witnesses. The defense also presented a psychologist who testified that O.L.’s mother was very open and did not remotely present the psychological profile of an abuser. J.L. also presented psychological evidence that he “‘. . . was not at risk for abusing his daughter’” but this testimony the trial judge disregarded for reasons the appellate division did not deem worthy of elaboration.
Both defendants testified, denying that either had, or could have, inflicted O.L.’s injuries. They admitted that their relationship had ended.
During the course of the DYFS action, O.L. had been returned to her mother’s custody, but J.L. visited with his daughter under the supervision of the family friends who were O.L. caregivers whenever possible and the caretakers confirmed that he was a “‘caring father.’” J.L. also testified about the events of March 27, 2010 when O.L. was taken to MC and x-rayed, explaining that “. . . the x-ray technician twisted O.L.’s legs to obtain different views. At the time, J.L. expressed concern that the technician was hurting his daughter, and she allowed him to take over in holding O.L.’s legs.” J.L. also testified the breakup of the defendants’ eighteen year relationship was “‘. . . the absolute horror of the situation of
having our child removed that there was just no room for our relationship. . .’”
T.L. testified as to her educational background, which included a degree in law, her employment history, that the pregnancy was planned, and that she received pre-natal care. She testified to O.L.’s medical history and that she was shocked when she learned of the fractures. She could not explain how O.L.’s injuries occurred, but she would not allow O.L. into foster care just to protect the father or anyway else.
The defendants also produced a forensic pathologist who testified that, contrary to the Division’s medical experts, T.L.’s history of osteopenia, as well as O.L.’s other medical problems could be the cause of O.L.’s injuries, and:
These circumstances led [the defendants’ forensic pathologist expert] to the conclusion that O.L. may have suffered from weak bones, which additional medical testing did not rule out: "You can do a bone density test in grownups and you can say okay this looks normal or this doesn't look normal. There is no bone density test
for babies so we can't do a test that says this baby has normal bones or not. Nobody has done a test on [O.L.] that says she has normal bones or not."
The defense medical expert also explained that a child with weak bones is vulnerable to injury when undergoing the medical procedures such as endoscopy and x-rays, and also that O.L.’s fractures “. . . could be sustained if a person were to flip a baby over from back to stomach using a leg or both legs.” As for O.L. not suffering additional fractures while in foster care, the defense medical expert explained as babies become older their bones become more resilient and the lack of additional injury was not probative that child abuse had occurred.
Persons in the business of international commerce should take special note of last year’s decision of the United States Supreme Court, Kawasaki Kisen Kaisha Ltd. et al. v. Regal-Beloit Corp. et al; decided together with Union Pacific Railroad Company, Petitioner, v. Regal-Beloit Corporation et al., 130 S. Ct. 2433 (2010).
Justice Anthony Kennedy was the author of the majority opinion and he was joined by Justices Roberts, Thomas, Breyer and Alito. Justice Sonia Sotomayor dissent was joined by Justices Stevens and Ginsburg.
The issue was whether the terms of a through bill of lading issued abroad by an ocean carrier can apply to the domestic part of the import’s journey by rail carrier?
The companies Regal-Beloit and Victory Fireworks were the owners of cargo damaged enroute from China. Kawasaki Kisen Kaisha is an international shipping company known by its corporate symbol.
Kawasaki, through its agent, “K”Line, America, Inc.; made all the shipping arrangements. The contract terms where set forth in bills of lading by K line which provided that the forum for any action relating to the shipment would take place in Tokyo District Court and the choice of law governing the shipment would be Japanese law. The bills also contained what is known as a “Himalaya Clause” which extends the defenses and limitations on liability in the shipping contract to any party who performs services contemplated by the shipment.
“K” Line transported the cargo over the Pacific to a California port. The goods were then transferred to a Union Pacific Railroad train. The train derailed in Tyrone, Oklahoma and the cargo was destroyed.
Regal Beloit and Victory Fireworks and their insurance companies who assumed their rights filed suit in the Superior Court of California in Los Angeles against both “K” Line and Union Pacific. The removed the case to the United States District Court and then moved to have the case dismissed based on the Tokyo forum selection clause in the bills of lading.
Cargo shipments by rail in the United States are governed by a federal law known as the Carmack amendment. Maritime shipments out of and into the United States are governed by an act known as the Carriage of Goods by Sea Act (“COGSA”).
COGSA provides that the parties can contract to apply COGSA to all states of a shipment, notwithstanding any domestic law to the contrary. The majority held that the reasoning of COGSA should apply here and held that if parties contract to have their disputes settled in a particular forum and under specific laws, such provision trump domestic law.
Justice Sotomayor disagreed, explaining that unless parties specifically invoke the “opt-out” provision in the Carmack amendment, it trumps contractual forum and choice of law provisions.
In light of this decision and the ability of an international maritime shipper to impose COGSA on contracted United States domestic shippers, we recommend domestic insurers, importers and shippers have their counsel review the bills of lading. Though COGSA allows for additional liablity if higher limits are declared, damages are usually limited by COGSA boilerplate documents to a limitation of $500 per package or customary freight unit. Counsel can also advise their United States clients of the law which will govern the shipment and the forum in which lawsuits which may arise will be heard. These things are essential to the decision making process for persons shipping or importing goods into the United States.
You have an absolute right to appeal your conviction, your sentence, or both. You are invited to contact me. Maybe I can help.