Monday, January 18, 2016

Recent Appellate and Supreme Court decisions involving the DCPP in cases involving allegations of abuse or neglect
As always, cases involving the Division of Child Protection and Permanency are always evolving. Trial courts often ignore decisions that have gone up on appeal to the Appellate or Supreme Court.  One recent decision was D.C.F. v. E.D.-O. 223 N.J.166 (2015). It overruled prior Appellate Division decisions that indicated that the trial court was to take cognizance of a parents' ability to overcome parenting deficiencies at the time that a fact-finding is held. The mother in this case, who had been found negligent in leaving her young child alone in a running car while going into a store some distance away, argued that she should not have been found negligent because 1) there was no proof that the child was harmed; and 2) that there was no proof that the child continued to face a risk of harm by the time that the hearing was held. This was argued after a recent Appellate Division decision implied that a parents' actions in overcoming deficiencies could be used to offset a negligent act that might have precipitated the involvement of the Division. DCPP v. M.C. 435 N.J. Super. 405 (App.Div. 2014). certif. granted 220 N.J. 41 (2014). While rejecting the mother's argument, the Supreme Court did uphold that the trial court must perform a multi-faceted inquiry of the event that precipitated the Title 9 litigation and proceeded to analyze a number of cases where a child had been left alone in different circumstances. While the Supreme Court took umbrage of the propensity of the Division to categorically find that leaving a child alone in a motor vehicle was evidence of neglect, it nevertheless did find that in the circumstance under review it was evidence of a failure to provide minimum supervision. The Supreme Court did not find the argument that the trial court overlooked the situation that the mother was in at the time of the fact-finding, saying that it would permit a trial court to overlook the "aberrational conduct" that led to the Title 9 action in the first place. While not a win for the mother, it did challenge the Division's belief that any showing that a parent leaves a child in a car is evidence of abuse or neglect. The Supreme Court also said that the matter was to be remanded and the focus was to be on the actions the mother took initially not at the time of the fact-finding, but that the mother could still argue that the "totality of circumstances" at that time may still cause a trier of fact to determine that the action was merely negligent, and not grossly negligent.

Oftentimes, courts fail to follow the proper procedures required under Title 9 or Title 30 when considering a fact-finding against a parent, the removal of a child from its parent, or the placement of a child with a non-custodial parent without a proper hearing. The seminal case that held that before a child could be placed with a non-custodial parent was DYFS v. G.M. 198 N.J. 382 (2009). The Supreme Court held that before a placement could be made with the non-custodial parent, a hearing must be held to decide whether it was safe to return the child to the custodial parent. In other words, had the custodial parent remediated the issue that led to the initial removal. A followup case amplified that even if a stipulation had been made that Title 30 services were required under N.J.S.A. 30:4C-12, it still did not find it appropriate to grant custody to the non-custodial parent absent a finding of abuse or neglect against the custodial parent. DYFS v. N.D. 417 N.J. Super. 96 (App. Div. 2010). Having seen cases where trial judges continue to ignore these requirements in some counties, it is extremely urgent that parents make sure they receive proper representation, whether through a public defender or a private attorney to ensure that the courts and the Division comply with the strictures and proof requirements established under the statutes and case law.
Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ 07011
(973) 473-0112 x 1001, tony@avzlawoffice.com

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