End of Year Updates in DCPP case law involving fact-findings

Recent Updates in Cases
Involving the Division of Child Protection and Permanency

December 29, 2014

I have previously written in my blog regarding
recent cases that have set limits on what the Division (DCPP) or the trial
courts from making findings of abuse and neglect against parents who have not
caused actual harm or created a substantial risk of harm to their children, but
perhaps committed some anti-social act that causes the Division to hold a
parent’s feet to the fire. One case we recently reviewed was NJDCPP v. M.C., a
May 2014 case. The gist of the case is that a fact-finding abuse and neglect hearing
must not only evaluate acts of abuse or neglect or acts that raise a
substantial risk of harm, but also must balance that by evaluating the steps a
parent or parents have taken to alleviate the harm, such as compliance with
Division or court recommendations. New Jersey Div. of Child Protection and
Perm. v. M.C.
, __ N.J. Sup. ___ (App.Div. May 5, 2014) (App.Div.
A-2398-12).

In M.C. the Appellate Division
reviewed a case where a fact-finding hearing proceeded, but the trial judge
refused to entertain any testimony or evidence as to the parent’s situation at
the time of the fact-findng. M.C.
also cited an earlier decision that criticized a trial judge for refusing to
consider the steps that a parent had taken to remove the potential risk. New
Jersey Div. of Youth & Fam. Servs. v. K..M.
, 136 N.J. 546, 550
(1994). “To the extent the judge concluded that improvement of M.C.’s conduct
and conditions in the home was irrelevant to that issue in this fact-finding
hearing, the judge erred.” (slip op. at 18), citing New Jersey Div. of Youth
& Fam. Servs. v. K.A.
, 413 N.J. Super. 504, 512-13 (App.Div.
2010).

A more recent published decision, is New
Jersey Div. of Youth & Fam. Servs. v. R.W. __ N.J. Sup. ___ (App. Div. Dec.
23, 2014). In the decision, the Appellate Division took the trial judge to task
for basing a decision on two documents, a court report (a document prepared by
the Division to the judge shortly before a scheduled court conference) and a
screening summary, which is a paper that documents the initial referral to the
Division of an alleged act of abuse or neglect.

In its decision, the Appellate
Division noted that the Deputy Attorney General (State’s attorney, or DAG) stated
to the court that it could not prove that the mother had left the child “in her
room alone” (one of the allegations in the complaint) or otherwise engaged in
inappropriate behavior towards her baby or towards the staff of the facility
where the mother was located as she was on parole. Instead, the DAG said that
she would rely on the Screening Summary for the admission that the mother used
substances while caring for her child.

A Screening Summary is predominantly
a hearsay document of people relating complaints to a person who simply reports
the complaint somewhat as a 911 operator takes a report of a crime or a
fire. It is up to investigators who go
out in the field to do an actual first-hand investigation to prepare what is
termed an Investigation Report. Despite this, the parent’s attorney failed to
object to the admission of the Screening Summary.

The Appellate Division looked at the
untrustworthiness of relying upon statements supposedly made by the mother to a
person at the treatment facility that was later relayed to the Division worker
for the truth that the mother had allegedly used drugs while caring for her
child. The Appellate Division further noted that the statement did not even
indicate whether, if true, the mother used drugs while actually having the child
in her care or in what manner she exhibited “poor parenting skills.” Thus in addition
to relying on what should have been inadmissible hearsay, the Division still
failed to establish, even if the assertions had been admitted, that the parent
had committed an acdt of abuse and neglect as defined under N.J.S.A.
9:6-8.21(c).

The Appellate Division cautioned
trial judges that in contested cases, when making a fact-finding decision
solely on documentary submissions, particularly where a parent is not present
as was the case here, that such reports should come from staff personnel or
professional consultants and that judges need to fully assess evidential issues
when including statements made by others, not subject to cross-examination.

Reiterating some earlier decisions,
the Appellate Division said that the mere use of drugs is not sufficient to
establish that an act of abuse or neglect occurred. Evidence of a risk of harm
must be based upon more than a generalized knowledge of the risks posed by the
use of controlled substances (or alcohol) but must be based upon a “fact-sensitive”
analysis based upon actual “particularized evidence.” As noted in the decision,
the trial court failed to establish anything in the record about the “magnitude,
duration, or impact of R.W.’s intoxication.”

This decision also called attention
to the serious consequences arising from a fact-finding against a parent. It
creates “(1) the potential for a ‘dispositional order . . .plac[ing] the child
in the custody of a relative or another suitable person for a substantial
period of time[;]” (2) the potential for a future ‘Division . . . action to
terminate parental rights[;]” and (3) “the Division’s recordation of the
alleged abuser’s name ‘into a Central Registry’ whose confidential records ‘may
be disclosed, on written request, to doctors, courts, child welfare agencies,
employers [], and others[.]” Citing New Jersey Div. of Youth & Fam.
Servs. v. A.L.
, 213 N.J. Sup. 1, 25-26 (2013).

It is very important, especially in
those cases where the Division seeks solely to rely on its own records without
live testimony, that parents do not acquiesce but make sure that the court
takes note that these reports are often replete with hearsay and even outright
inaccuracies. Parents should see that their attorneys make a record in those
cases where only documentation is admitted, that all hearsay statements and
worse yet, hearsay within hearsay statements be subject to scrutiny by the
Court. In my opinion, it is never good practice to simply permit a fact-finding
to be solely upon the basis of some unchallenged documents, but that at the
very least the case workers must be made to testify and anyone else with
relevant knowledge.

Another recent case that is
significant but was not published as yet involved a mother who was reportedly
using marijuana while caring for her two children. She initially refused to
submit to drug tests and her children never appeared uncared for. New Jersey
Div. of Youth & Fam. Servs. v. D.C.
, ___ N.J. Super. __ (App. Div. Sept.
4, 2014). A psychologist performed an evaluation and found that although she
lacked insight into her cannabis dependency, she had been compliant with the
Division programs for the past year (from 2011 to 2012). The Division’s expert
made no finding as to the mother’s parenting abilities or the risk of harm to the
children. The mother tested positive for
PCP in 2012 and the mother had not returned to treatment. As a result of these
violations, the court placed the two daughters with their respective fathers.

The problem arose when the Division
requested and the court granted custody to the children’s fathers and that the
mother could only have visitation upon showing completion of a drug treatment
program. Custody of one of the children was changed based upon a final
restraining order having been entered against one of the fathers.

Reporting the history of the case,
the Appellate Division noted that the mother had refused to have a urine screen
done when her second daughter was born, but that the reporting hospital did not
note any concerns regarding the health of the infant The record showed that the
younger child had regularly seen a pediatrician, and was current on her
vaccinations. The mother did not appear to be under the influence of drugs when
seen by case-workers nor did her home appear to raise any concerns. However,
later she tested positive for marijuana and missed three drug abuse assessments
that the Division had ordered her to take. The older daughter also reportedly missed some days of school.

Notwithstanding this, the Court noted
that even a continued use of marijuana and failure to seek treatment does not
necessarily “support the conclusion that
defendant’s conduct placed the children in imminent danger of impairment or at
substantial risk of harm.” D.C. citing N.J. Div. of Youth & Fam.
Services v. V.T.
, 423 N.J. Super. 320, 331 (App. Div. 2011). The
Court noted that the earlier decision required at least a showing that the
parent was caring for the child while under the influence because that would
place a child at great risk of harm. In this case, the Appellate Division found
that the Division did not establish that the mother’s use of marijuana had
placed the children “in imminent danger or at substantial risk of harm.” As to
the fact that the older daughter had missed a number of days at school, it was
noted that the child was in kindergarten, that there is no law requiring
attendance in kindergarten, and there was no evidence showing that the child
was falling behind in school.

As to the marijuana, the Court noted
that there was no evidence produced at the fact-finding that what level of
marijuana the mother had in her system at the time of the tests or present any
expert testimony as to whether the use of marijuana by the mother presented a
risk of harm to her children.

The Appellate Division here, as in
the first case, noted that the law does not permit judges to infer the impact
of the use of a drug like marijuana upon the care of children in a parent’s
custody without some form of evidence, especially if the parent does not appear
to be under the influence; or in the absence of some sort of competent expert
testimony.

The Court also found the trial court’s
transfer of custody to the fathers to be objectionable when an adequate
dispositional hearing had not been held and the parent had not been able to
present testimony or cross-examine witnesses. The trial court had simply relied
upon documentation submitted at the fact-finding that had been conducted more
than six months earlier. For instance, the trial court admitted the report
prepared by the Division’s expert but the expert himself did not testify and
was not cross-examined. The Court found the Division’s position, which the
trial court adopted, that the need for a dispositional hearing was unnecessary because
the mother had been shown to be unfit to be totally objectionable writing that
if that position were valid “then any parent who is found to have abused and
neglected his or her children during the fact-finding hearing would no longer
be entitled to a dispositional hearing.” Rather the requirement that a two step
process be employed between the fact-finding and the dispositional hearing was
emphasized by the Appellate Division.

These cases are very important,
although the second case is not yet a reported decision and thus is not binding
upon the trial courts. A thorough record is necessary at fact-finding to permit
the higher courts a basis to see if the trial court had sufficient competent,
material and relevant evidence to support a finding of abuse or neglect. Too
often, judges rely on hearsay or even hearsay within hearsay (I was told that
person A heard from person B) to establish a finding. Too often, a finding of
use of a drug, without a finding of harm, is used to substantiate a parent of abuse
or neglect. Too often, defense counsel fails to object to records that should
not be admitted, or at least should be redacted for inadmissible evidence,
while not forcing the court to hear live testimony. If the Division is not
presenting its own witnesses, defense counsel can always subpoena the witnesses
themselves. This applies to other witnesses like police officers, who often
simply report what others have told them and report accordingly.

The Appellate Division and the Supreme
Court have issued a number of important holdings that especially affect what
constitutes adequate and inadequate proof of abuse and neglect.

Lastly, a major case came out of the
Supreme Court of New Jersey involving a mother, who learned she was pregnant and
who entered a bona fide methadone program to wean herself off of Percocet which
she had been prescribed after suffering injuries in an auto accident. The
infant suffered methadone withdrawal symptoms at birth. The mother had a prior
drug history, as well as involvement with domestic violence with the child’s
father, but the main basis for the finding was the methadone exposure to the
child.

The Appellate Division held that that
there could be a finding of abuse and neglect when harm to a child occurs
regardless of whether the source of the harm was from illicit substances or
from a prescribed medical substance or treatment plan. The Supreme Court
countered that a mother acts reasonably when she exposes a child to a lesser
harm (methadone withdrawal) to avoid a greater harm, namely her continued drug
addiction. This case is significant for parents who may be accused of abuse or
neglect when following a prescribed regimen of controlled substances or of
using methadone to get off of more dangerous opiates. New Jersey Div. of Child
Protection & Permanency. v. Y.N.
, __ N.J. ___ (Dec. 22,
2014).

Anthony J. Van Zwaren, Esq., offices at 340 Clifton Avenue, Clifton, New Jersey, has been an attorney for the past eighteen years and has been involved in cases with the Division for the past seven years, on both the trial and the appellate level. I can be reached at 973-246-9659 for further information.

View Attorney Profile

RECENT POSTS

  • NJ lower court decision makes significant findings on child sex abuse cases
    Posted on September 8, 2017
    Topic: Family Law Criminal Law Family Law

    Recent decision in Hudson County trial court, State v. J.L.G., will have significant impact in both criminal and DCPP cases involving allegations of child sexual abuse A recent decision that came out of Hudson County Superior Court on remand from the New Jersey Supreme Court, which asked the trial court to conduct a hearing on ... Read more

  • NJ Supreme Court decision makes it harder to move with child out of state
    Posted on August 14, 2017
    Topic: Child Custody Family Law

    The New Jersey Supreme Court called Bisbing v. Bisbing, decided only on August 8, 2017, has provided a major shift in balancing the interests of custodial and non-custodial parents when a custodial parent seeks to move out-of-state with his or her child(ren). In looking at this recent decision, we first examine what the courts had ... Read more

  • What is Behind the Doctrine of “Guilty Property” in civil forfeiture law?
    Posted on August 1, 2017
    Topic: Civil Rights Constitutional Law Criminal Law

    What is Civil Forfeiture? Imagine you own an automobile that you lend to someone. That person gets pulled over by the police and is suspected of using drugs. The police decide not only to arrest the person, who might be a son or daughter, but they confiscate your automobile. Or say you want to buy ... Read more

RECENT POSTS

  • NJ lower court decision makes significant findings on child sex abuse cases
    Posted on September 8, 2017
    Topic: Family Law Criminal Law Family Law

    Recent decision in Hudson County trial court, State v. J.L.G., will have significant impact in both criminal and DCPP cases involving allegations of child sexual abuse A recent decision that came out of Hudson County Superior Court on remand from the New Jersey Supreme Court, which asked the trial court to conduct a hearing on ... Read more

  • NJ Supreme Court decision makes it harder to move with child out of state
    Posted on August 14, 2017
    Topic: Child Custody Family Law

    The New Jersey Supreme Court called Bisbing v. Bisbing, decided only on August 8, 2017, has provided a major shift in balancing the interests of custodial and non-custodial parents when a custodial parent seeks to move out-of-state with his or her child(ren). In looking at this recent decision, we first examine what the courts had ... Read more

  • What is Behind the Doctrine of “Guilty Property” in civil forfeiture law?
    Posted on August 1, 2017
    Topic: Civil Rights Constitutional Law Criminal Law

    What is Civil Forfeiture? Imagine you own an automobile that you lend to someone. That person gets pulled over by the police and is suspected of using drugs. The police decide not only to arrest the person, who might be a son or daughter, but they confiscate your automobile. Or say you want to buy ... Read more