Recent Updates in case law involving fact-finding hearings
Recent higher court decisions are placing higher requirements on proof of harm or risk of harm when trial courts make findings of abuse or neglect
Challeging the Division's Evidence when at a fact-finding hearingI 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.
Drug Use in itself does not support a finding of abuse and neglectAnother 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.
Enrollment in a bona fide drug treatment program cannot be used to support a finding of abuse or neglectLastly, 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.