Important new NJ Supreme Court decision involving DYFS "fact-findings"

The Supreme Court of New Jersey just issued a new decision that will have a far reaching impacted for parents involved with the New Jersey Division of Child Protection and Permanency (formerly the Division for Youth & Family Services).  The name of the case is NJ Div. of Youth & Fam. Svcs. v. A.L. (A-28, September Term 2011, 068542).

This case involved a determination under Title 9 (N.J.S.A. 9-8.21(c)) concerning findings of abuse and neglect against parents at hearings known as "fact-findings". The Supreme Court noted that New Jersey's statutory interpretation as to evidence of "abuse" or "neglect" requires a showing of "imminent danger" when actual harm has not been proven or a "substantial risk of harm." 

This matter involved a mother involved a mother who gave birth to her son where there were findings that the mother, A.L. had tested positive for cocaine upon admission to the hospital when she went to have the baby delivered.  Cocaine metabolites were also found in the baby, however, the baby's health was otherwise reported as normal.

At the fact-finding, the Division agreed that no actual harm had occurred to the mother's son, but argued that there was a substantial risk of harm to the child due to the positive screen on the child and the "environment [to which] the child would be going home."  The mother argued that the ingestion of cocaine would not show a harm to the child while still a fetus because the statute does not apply to fetuses. She also argued that her son suffered no complications after his birth.  

The trial court held that the Division met its burden under Title 9 by a preponderance of the evidence.

The Appellate Division upheld the trial court on the fact-finding (in the interim, the litigation was dismissed since the mother was deemed to have remediated her problems). They differentiated an earlier Supreme Court decision In re Guardianship of K.H.O., 161 N.J. 337 (1999). which said that mere evidence of pre-natal drug use was not sufficient to demonstrate a harm to the child without more; since that decision involved a termination of parental rights case, and not a Title 9 finding of abuse and neglect.

A number of parties filed "friends of the court" briefs in support of A.L. including Legal Services of New Jersey and Amici Experts and Advocates.  Amici argued that competent scientific evidence would have been required to support a claim that drugs taken while pregnant to support a claim that there was a harm or likely cause of harm under the statute.   They also argued that applying Title 9 to pre-natal drug use might harm newborn children if it deterred some women from seeking pre-natal care.

The first finding of the Supreme Court was to see whether Title 9 applied to unborn children, and they held that it did not. They referenced provisions under NJSA 30:4C-11 that did authorize the Division to provide services to a pregnant mother upon her consent, and concluded that if the legislature had intended Title 9 to apply to pregnant mothers they could have included language that said so. This is called statutory construction. The Court succinctly held that Title 9 does not apply until after a child is born, although "the behavior of an expectant mother during pregnancy can still be relevant if it relates to a child's suffering or the risk of harm to a child after birth." 

The Supreme Court then addressed how the Division may prove actual harm after birth. These include suffering symptoms from withdrawal; signs of respiratory or cardiovascular distress or other complications. Or the Division must show that there is an "imminent danger or a substantial risk of harm to a child by a preponderance of the evidence."

The Court then looked at the consequences that a finding of abuse or neglect may have on a parent's rights, including a dispositional hearing that may lead towards the termination of parental rights, and placement of a parent on the Child Abuse Central Registry.

The Supreme Court looked at the lack of any evidence showing harm or risk of harm to the newborn. Mention of the presence of a cocaine metabolite in the child was not explained, nor the level that was entered defined as to show whether it had any significance. As the Supreme Court stated "[J]udges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm." A finding must turn "on particularized evidence."

In order to deal with the potential harm to a newborn child, the Supreme Court noted that the Division did have authority to provide services to a parent under Title 30 to address the potential problems created by drug use during pregnancy. Section 11 of Title 30 does apply to unborn children as well as those who have entered this world. It also notes that the parent must consent to these services, that they cannot be forced upon her. Section 12 of Title 30 also permits the Division to seek Court intervention and in that section, services such as substance abuse counseling or treatment can be ordered, without need of a finding of abuse and neglect. In fact, in A.L., the father had already stipulated to being a parent in need of services.

One thing that the Court noted in its footnotes were that there are a number of states, including Florida, Illinois and Minnesota; that do contain provisions making ingestion of controlled substances (or alcohol) an exposure of harm to a child even before birth and thus evidence of harm or neglect.

So although this decision is an important victory for parents who may have substance abuse problems that mere use by itself is not automatically evidence of neglect or abuse for purposes of a finding under Title 9, the Court also did suggest other avenues that the Division may assist parents who may have substance abuse problems, without the punitive effect of being placed on the Child Abuse Central Registry or having a finding against the parent that may later be used for purposes of terminating a parent's parental rights.

 

(The author is an attorney who represents parents in the Northern New Jersey area in DYFS or DCPP litigation). He can be reached at 973-246-9659 or 973-473-0112 x 803. His office is at 340 Clifton Avenue, Clifton, NJ.

Another NJ Supreme Court decision on juvenile waivers

I earlier posted a response to a Supreme Court (New Jersey) case dealing with the rights of minors not to be prosecuted as adults that was favorable towards teenagers.  Now, about a week later, the Supreme Court issued another decision that makes it easier for prosecutors to have cases waived from Family Court to criminal court and restricts the rights of trial judges in Family Court to prevent that removal. So it looks like the earlier decision, In the Matter of V.A., may not have as broad an implication as first thought. The later decision. Basically the Supreme Court held In the Matter of A.D. which was decided a week after V.A. The Supreme Court noted that the Legislature, in its amendments to the laws under N.J.S.A. 2A:4(A)-26 sought to streamline the waiver of juveniles into the adult courts when crimes were determined to be serious. The Supreme Court held that the trial judge was wrong in imposing an improper standard in opposing the waiver, since all that the prosecution had to do was to establish by probable cause that the defendants had committed the crime in question and "that the probable cause standard that governs waiver of juvenile complaints into adult criminal court under N.J.S.A. 2A:4A-26 is similar to the standard that guides a grand jury's determination whether or not to indict. If the trial court finds that the State has presented evidence which, combined with reasonable inferences to be drawn from that evidence, leads to a well-grounded suspicion or belief that the juvenile has committed one or more crimes enumerated in the statute, the "probable cause" standard of N.J.S.A. 2A:4A-26 is satisfied."
Now this case did involve defendants who were seventeen had been involved in a shooting involving their relatives, one of whom happened to be a leader in the Latin Kings gang.  The Supreme Court found that the trial court erred in determining that the youths were not aware that their involvement was going to lead to the shootings, since they would be liable as accomplices.
One justice, Justice Albin, dissented, believing that the majority failed to give due deference to the findings of the trial judge and removing their discretionary powers to keep matters in juvenile court, while basically limiting them to a limited review of the prosecutor's finding that the youth's had been involved in an enumerated crime.
Justice Albin was one of the supporting justices in the case decided only one week before V.A. that I reported on earlier.

Recent NJ Supreme Court decision assists juvenile defendants facing charges as adults

The New Jersey Supreme Court ruled this month in State in the Matter of Interest of V.A. et alia that prosecutors must meet a tougher test before they can try juveniles as adults, reversing an Appellate Court decision that reversed a trial court decision and permitted the State to waive prosecution in family court of several co-defendant juveniles who were over the age of 16, who had been involved in an aggravated assault incident. They had been facing charges as adults as a result. One of the most onerous factors in the particular case that was being heard was that the defendants would face up to incarceration for ten years if tried and convicted as juveniles while they could face up to forty-two years in prison as adults under the No-Early Release Act.

Under NJSA: 4A-26 prosecutors may waive prosecution of juveniles and permit them to be tried as adults. One of the protections that juveniles have been afforded when being tried as juveniles is the right to have rehabilitation evidence used in their behalf. However, upon being charged as adults, juveniles lose this right to have proof of rehabilitation being used as a mitigating factor.

The Attorney General identified seven factors that a prosecutor would have to use when requesting the waiver. These are: the nature of the offense; deterrence in preventing others from committing the same crime; the effect on co-defendants, namely that co-defendants cannot be treated unequally, where some are tried as adults and others as juveniles; prior record of the defendants; trial considerations; and the input of the victims. In this case, the victim of a vicious assault did support the over age 16 year defendants being tried as adults.

The trial judge held that the prosecutor did not meet the standards to waive the defendants into adult court, using a standard that the prosecutor had committed an act of patent and gross abuse of discretion, which is a very high standard.

The Appellate Court reversed the trial judge using the legislative intent that gave prosecutors the discretion regarding making determinations as to waiver. The Appellate Court took note of the Attorney General’s arguments that this trial judge had shown prejudice in other instances when prosecutors sought to have juvenile court matters remanded to adult court. Basically, the Appellate Court found that the trial judge had abused his discretion. However, it was noteworthy that the Appellate Court upheld the standard that the trial judge used in asserting that the standard to be applied must be a showing that the prosecutor committed an act of patent and gross abuse of discretion.

The main issue that the Supreme Court focused on was what standard should be applied by the court in reviewing a waiver by the prosecutor’s office. The Supreme Court held that, as applications to have juveniles tried as adults necessarily was an application to impose harsher penalties upon the defendants, the standard the court needed to determine was simply whether the prosecutor committed an abuse of discretion without having to show that it was a patent and gross abuse of discretion. The Supreme Court considered these applications to be different than the standard that, for instance, would be applied on arguments against denials of Pre-Trial Intervention, because those were arguments for reduced penalties not increased ones.

This gave the courts more power in holding the prosecutors’ feet to the fire in presenting evidence on all seven prongs of the guidelines before approving a waiver of prosecution. In addition to holding that defendants only need to show that the prosecution abused their discretion rather than having to show that they committed a patent and gross abuse of discretion, the Supreme Court also held that it was necessary that the prosecution adequately substantiate their arguments as to all seven prongs of the Attorney General’s Guidelines as to each defendant. For instance, in some instances, the prosecutors in this case simply used boiler plate language as to each defendant, while only introducing slight variations when describing the prior records of each individual. The Supreme Court also failed to present any cogent arguments with respect to how the waiver would act as a deterrent to others.

In a 3-2 decision, the Supreme Court held that prosecutors must explain why trying a juvenile as an adult would better deter that person, as well as others, from committing future crimes.

As reported in the Newark Star Ledger on September 12, 2012, “juvenile justice advocates hailed the decision as an acknowledgement of the negative consequences of putting young offenders in prison with adult criminals.” The advocated found that imprisoning young people as adults often aided inmaking them into permanent criminals unable to find jobs later in life. They were also more likely to commit suicide or be physically or sexually abused.

In response to the Supreme Court’s decision, the Middlesex County Prosecutor’s Office was reported in the Star Ledger to have argued "the need to deter the juvenile(s) and others from engaging in this sort of activity is abundantly clear." The case was sent back by the Supreme Court to the trial court to permit the prosecutors to expand their arguments to justify trying the defendants as adults. According to the Star Ledger report the Middlesex County Prosecutor Bruce Kaplan said: "[E]ven under this new, increased level of court review, our previous statement of reasons pursuant to Attorney General guidelines was found sufficient in all other respects," Kaplan said.

While not a total victory for juvenile defendants, it does give trial courts more freedom in reviewing the requests being presented by zealous prosecutors in having juveniles tried as adults by inquiring whether they committed any abuse of their discretion.

Tony Van Zwaren, Esq.
Clifton, New Jersey

I think this is noteworthy for people who are involved either with DYFS (now called the Division of Children and Permanency, no more families) or in child custody matters, where a parent gets a psychologist to try and use an allegation of sexual abuse against the other parent to eliminate that parent's visitation rights. Marcia Kleinman was one of those most prominent psychologists, often used in custody cases or by the Division. Now Marcia Kleinman is losing her license to practice psychology, after the judge hearing the case against her found that she would coach children to report abuse even when they did not report it on their own, and was also found to have ignored court orders and lying to the court.
I reprint the link to the decision.
http://www.dpdlaw.com/kleinman.html

Recent issues concerning DYFS "Fact-Finding" hearings

There have been significant changes over the past year in the New Jersey Supreme Court concerning parents' relationship with DYFS and what constitutes abuse and neglect under Title 9. Many recent cases have since January of last year where the Supreme Court has overridden both the Appellate Division and various trial judges and have often rebuked DYFS for their failure to consider the importance of preserving family unity. Recently, the Supreme Court dealt with the issue of whether an unfounded allegation of abuse or neglect can serve as the basis for a Title 9 action New Jersey Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, (2011). This case started when the minor daughter was removed from her step-mother’s home through a Dodd Notice because there was a lack of heat in the home and the child expressed fears of returning home. Notwithstanding the fact that the Division did not substantiate the allegations and they were deemed “unfounded”, neglect was still determined on the basis that the step-mother “physically abused her daughter; that the father failed to intervene on the daughter’s behalf’ that the daughter had not seen a pediatrician in two years; that there was no heat in the home; that the parents took the daughter’s paychecks to support themselves; and the parents acted to isolate their daughter from her extended family,


In New Jersey Div. of Youth & Family Servs. v. T.B., 207 N.J. 290, 294 (2011) an administrative law judge did not substantiate abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b) for inadequate supervision and yet the Appellate Division upheld the Division in finding that there was parental neglect when the mother had left the child unsupervised by failing to apply the “minimum degree of care” standard. The Supreme Court differed and held that where an allegation of neglect is made, the particular event must be analyzed to see whether the act is merely “negligent, grossly negligent, or reckless…” Id. 300. Grossly negligent conduct requires "`an indifference to consequences." Recklessness occurs when the actor "intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences." As the Supreme Court stated in Schick: The standard [for reckless conduct] is objective and may be proven by showing that [the actor] proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position. Reckless conduct is an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent…Negligence may consist of an intentional act done with knowledge that it creates a risk of danger to others, but recklessness requires a substantially higher risk. The quantum of risk is the important factor.

Most recently, the Appellate Division held that trial courts are no longer to be permitted to continue cases as Title 9 Abuse and Neglect absent a finding of abuse or neglect. If DYFS seeks services, they must proceed under Title 30 as an "in need of services" case which does not require a finding of abuse or neglect. http://scholar.google.com/scholar_case?case=11854177194933376008&q=dyfs+v.+TS+&hl=en&as_sdt=2,31