Saturday, March 22, 2014


A recent Appellate Division decision (unfortunately unpublished) deals with the issue as to whether mental illness in the absence of harm or threatened harm to a child can provide a basis for a finding of abuse and neglect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 of Youth and Family Services v. L.F.,  (A-0982-12), a recent unpublished decision, the Appellate Court reversed the Family Court’s finding that a mother with chronic mental illness had committed abuse and neglect against her two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As mentioned above, this is an unpublished decision, meaning that it is not binding upon lower courts.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



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