A recent Howes & Howes success story involved allegations that both parents had neglected their children by allowing them to be exposed to alleged domestic violence. A domestic violence perpetrator potentially neglects a child when he or she commits domestic violence. Likewise another adult who knowingly allows exposure to domestic violence also risks a finding of neglect. This is one of the most frequently litigated types of neglect cases under New Jersey law.
New Jersey law recognizes that children suffer actual harm, and are placed at risk of harm when they are exposed to domestic violence. Indeed, New Jersey courts have held that a pattern of parental conduct can place a child at risk of harm without proving a particular act of physical or similar domestic violence. D.Y.F.S. v. I.H.C. and D.C., 415 N.J. Super. 551 (App. Div. 2010) However, New Jersey courts also recognize that the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs. DYFS v. S.S. and F.S., 372 N.J. Super. 13 (App Div. 2004).
In our case, the Division had concerns about drug use in the home and about allegations of domestic violence in the home. In December 2010, the Division completed its investigation. At the conclusion of the investigation, the Division found that allegations of neglect were unsubstantiated against both parents. The case worker then remained involved in the case. In January, the family went on a family vacation. There was nothing preventing them from taking a family vacation together. There was no restraining order, no safety plan and no court order. Indeed, there was never a reported or substantiated incident of domestic violence, just evidence of marital contretemps.
Nevertheless, the Division intervened. They removed the children from the home and filed a child protective lawsuit against the parents.
At the first hearing, the court found that the children should be returned to the home. The family participated in services throughout and cooperated with those services fully.
The court held a fact-finding hearing in September and October. At that hearing, the defense established that (1) there were no substantiated domestic violence events; (2) that the Division ruled that allegations were unsubstantiated in December 2010; and (3) that nothing new happened to raise concerns that the children had been exposed to neglect or abuse between December 2010 and the time that the family went on vacation in January 2011. The court found that there had been no abuse or neglect of these children. In the end, the Division cannot prove a case against a parent based on the hunches or feelings of a case worker. That is exactly what the Division tried to do in this case, and they were unsuccessful.