Written by attorney Anthony J Van Zwaren

Recent Supreme Court and Appellate Division decisions concerning DYFS abuse and neglect cases

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.

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