Recent NJ Supreme Court decision reinforces rights of parents in Title 9 fact-finding cases
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.