Saturday, March 22, 2014

THE DIVISION OF CHILD PROTECTION AND PERMANENCY AND THE ISSUE OF MENTAL ILLNESS


A recent Appellate Division decision (unfortunately unpublished) deals with the issue as to whether mental illness in the absence of harm or threatened harm to a child can provide a basis for a finding of abuse and neglect under New Jersey Title 9.

 

In New Jersey Div. of Youth and Family Services v. L.F.,  (A-0982-12), a recent unpublished decision, the Appellate Court reversed the Family Court’s finding that a mother with chronic mental illness had committed abuse and neglect against her two children. The Division received a notice from local police that the mother had been acting out of control and ranting and raving. The mother was then taken to a local hospital where she was referred for outpatient treatment.

 

The mother told her caseworker that she was hearing voices.  The mother was diagnosed with “bipolar disorder or possibly an agitated depression with psychosis.”  As the case described, the mother had a long history of psychiatric hospitalizations.  In 2012, the Family Court found that the Division had proven, by a preponderance of the evidence, that the mother had neglected her children due to her non-compliance with treatment and refusals to take her medications.  The appeal was based upon the fact that the mother had never placed her children at risk of harm.

 

The Appellate Division ruled in favor of the mother, finding that the children were never harmed or recklessly creating a harm or the substantial risk of harm for her children under N.J.S.A. 9:6-8.21(c)(4)(b). This implies more than that there is a speculative risk of harm, but that there must be a showing that the parent has recklessly created a serious risk of harm to the child. DYFS v. J.L., 410 N.J. Super. 159, 168-169 (App.Div. 2009).

 

The Court found that C.F. had the benefit of living with the children’s father and her parents who were aware of the mental illness of the mother and were able to ensure the children’s safety. As a result, the Appellate Division ordered that the mother’s name be removed from the Central Child Abuse Registry Index. (CARI).

 

As mentioned above, this is an unpublished decision, meaning that it is not binding upon lower courts. However, it is indicative of recent New Jersey Supreme and Appellate Division decisions that the Division has to prove cases by a preponderance of the evidence showing that a harm or substantial risk of harm has occurred. They must also show that the parent has showed something beyond simple negligence. While a person with severe mental health issues might present a risk of harm, if that person is treating and if there is a support network to ensure the children’s safety, there is not sufficient cause, at least according to this judicial panel, to find that an act of abuse has occurred.

 

 

Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ 07011

 

 

Saturday, August 31, 2013

More on the issue of driving while distracted

A recent decision by the New Jersey Appellate Division deals with the issue of texting while driving
Previously, I wrote on the issue of driving while distracted in light of the bus driver who is being charged with homicide by auto as a result of his killing an 8-month old baby while texting on his cell phone while negotiating the streets of North Bergen, a very heavily congested area in Hudson County.  The Appellate Division has recently decided a civil case in which the issue of texting while driving also came up.  In Kubert v. Best, A-1128-12T4, the Appellate Division decided a case where the two plaintiffs were injured by the driver of a pick up truck, Kyle Best who was apparently texting his girlfriend, Shannon Colonna, immediately before he collided with the Kuberts, who were on a motorcycle.  Both plaintiffs had their left leg amputated.  The Kuberts settled with Best but proceeded with a claim against Colonna, who they claim was jointly responsible for the accident as she was intimated to have known that she was texting Best while he was driving.  The trial court held that, even though proofs showed that Best was texting immediately before the accident, there was not enough evidence to show that Colonna was aware that her boyfriend was driving at the time.
            The Appellate Division discussed two statutes, N.J.S.A. 39:4-97.3 that prohibits use of a hand-held device while driving except under certain emergency conditions, and N.J.S.A.  2C:12-1(c)(1), a criminal offense making it a fourth degree offense when one has an accident causing serious bodily harm to another while engaged in the use of a hand-held phone or other electronic device.  The criminal statute did not come into play in this case.
            To the Appellate Division, the issue that had to be decided was whether the “remote texter” had a responsibility to know whether the texts were going to a person while driving.  While the Appellate Division upheld the trial court’s conclusion that there was not sufficient proof to show that the texter in question, Ms. Colonna, knew that Mr. Best was driving, they could not conclude that the remote texter would bear no responsibility had there been a showing of such proof (the Court discussed the fact that there was evidence as to the time that texts were being exchanged but no evidence as to the content of the transmissions).
            Thus in this case, the Appellate Division, unlike the trial court, concluded that a person who texts a driver will bear responsibility if it is shown that the texter knew the other person is driving a car, bus or other motor vehicle. The Court analyzed whether the texter, Colonna, had a duty of care towards the plaintiffs. After finding cases where a person may have a duty of care, for instance a passenger who encourages a driver to drive while intoxicated, there was no finding in this case to show that Colonna knew that Best was driving, or encouraged him to do so. The Court also looked at the issue of foreseeability.  A sender of a text is not necessarily demanding that the recipient immediately respond. A person can receive many text messages while driving and simply wait until such time as it is safe to answer.

            While in this case, the Court did not find liability against the remote texter, it is not inconceivable that, with different facts, the Court could have found otherwise, for instance if the actual text messages were read and it became conclusive that the sender did know the status of the driver.  This is probably why there has been a recent legislative effort to permit police to inspect cell phones immediately after an accident, although this bill has been under attack from civil liberties groups like the ACLU on the basis that this would permit unwarranted search and seizure without probable cause.
Anthony Van Zwaren, Esq.
Anthony J. Van Zwaren, Esq., P.A.

© 2013


Tuesday, August 13, 2013

Online scams

I had a client come in today who was very distressed.  She had applied for an online payday loan with something called loan1clickcash.com.  It operates through Money Mutual (which supposedly refers people to different lenders, acting as a broker.  Montel Williams fronts for Money Mutual.  This client borrowed money and obviously gave information like her bank account info, social security # and other info.  After that, she started getting calls supposedly from Sacramento California (Indian guy) who tells her if she doesn't pay money to them right away, they are going to send police after her for check fraud.  They called her cell phone and even her work number.  Unfortunately, she made one payment, after being told that they only accept money pak, no credit cards, no certified checks, no western union.  Of course, there was also no receipt.  Then they call back from a different number from Tennessee, again saying she has to pay the balance or else she will be arrested.

People are being taken in by Money Mutual and their so-called lenders.  I decided to call some of the numbers she gave.  The one in Tennessee claimed to be with the law firm of a real law firm in Tennessee. I asked him to put an attorney on.  He put me on hold and never came back on.  Then I looked up that law firm and their website had a notification warning of scammers claiming to be from their law office trying to get money.

Then I called the California number and said I was an attorney and I would like to know when they started hiring Indians at the Attorney General's office and what state attorney general's office he claimed to be from.  Of course he hung up.

Then I spoke to the attorney from the law firm who said they had received about 100 complaints from people who had been called by the scammer claiming to be from their firm.  They filed a complaint with the police and have presented their case to the Consumer Protection Bureau.

While a little digging allowed me to get enough information to my client that she wasn't fearful of being dragged off the street for "check fraud", she still lost about $500.00 and has given out information that can be used by others for even more nefarious purposes.

The law firm in Tennessee suggested filing complaints to the Consumer Financial Protection Bureau at(855) 411-2372. Please beware.

Friday, August 2, 2013

Tougher consequences for drivers who use cell phone to call or text

New York State has recently passed tougher new laws against distracted drivers who talk or text on their cellphones while driving. On June 1, 2013, they increased the points levied from 3 to 6 points for those who are caught. According to a news report in Long Island Newsday, tickets in New York for distracted driving have increased while tickets for people caught driving under the influence actually decreased. New York State Police issued estimates that one in five accidents in the state were caused by distracted drivers. Those holding junior or probationary licenses can also face enhanced penalties in the form of suspensions from driving privileges. New Jersey is also moving in the same direction. Recently, the State Legislature passed a law doubling fines for those convicted of distracted driving, and for those convicted of three or more offenses, a driver can have his or her license suspended for up to 90 days and be penalized with three points on their license. NJSA 39:4-97.3 now states that fines for a first offense shall be no less than $200 and no more than $400; a second offense shall be no les than $400 or more than $600; and for a third offense no less than $600 nor more than $800.00. Previously there were no points for cell phone violations, but as mentioned, the present law states that a person with three or more convictions "shall" be assessed three points. And the penalties can be assessed for second or third offenses for anyone receiving a cell phone conviction going back ten years, so even if one violated the statute before the current law, it appears that they can be assessed as second or third time offenders. However, what people should be aware of even more, is the fact that a distracted driving offense can lead to a homicide charge as witness the recent arrest of a bus driver, who was talking on his cell phone and lost control of his bus, killing an eight month old child. He was being held on $250,000 bail and being charged with homicide by auto and reckless driving. The driver faces possible incarceration of between five to ten years if convicted. So it is perhaps wise to ponder the effects of texting or talking on a handheld device while driving, since the consequences can be far more severe than a simple fine or even points against one's license. This is no longer being treated as a secondary offense, and the very least you face is a $200 fine.