Monday, December 29, 2014

End of year update DYFS (DCPP) fact-finding cases

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.

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.