February 10, 2012

Appellate Division:  Parental Error is not the same as child neglect under New Jersey law

by W. Timothy Howes, Esq.

The law requires a fact-finding hearing in every child protective lawsuit.  The purpose of a fact-finding hearing is for the court to determine whether there was abuse or neglect of a child or children under New Jersey law.  At that posture, a parent accused of abuse or neglect is entitled to a full evidential hearing (a trial).  If the trial court finds against the parent, the parent then may appeal.  This past week a parent was vindicated in the Appellate Division case of DYFS vs. FM and LM.

The Appellate Division in DYFS v. F.M. and L.M. reversed neglect and abuse findings against a mother and step-father who got drawn into a difficult intervention with a 17 year old daughter who was high on drugs, ending with her bolting from their car.  The appellate panel reversed a fact-finding decision which had held the parents’ failure to restrain their daughter physically, or heighten the physical confrontation, or go after her or seek help from authorities amounted to neglect and abuse.  The unreasonableness of that finding was reflected in the Appellate Division opinion, but it clearly was not a slam-dunk of a case.  Trial counsel established a strong record and appellate counsel persuasively used it.

Indeed, the appellate court was presented with a difficult finding by a highly respected trial court judge concerned about a child in a state of crisis, who had ruled:  “"no one went after this child, no one tried to get her help after she disappeared out of this car. Nobody acted to protect her.” Yet the facts brought out at trial, which appellate counsel marshaled successfully on appeal, demonstrated that parental error is not the same as child neglect under New Jersey law.  As the Appellate Division held: “In this instance, the age of the child, the fact that the family had lived with K.R.’s drug use for some unspecified period of time, the daylight hour in which the incident occurred, that mother and child engaged in a major conflict in order to get K.R. in the car, and the fact that K.R. was in her own community, are circumstances
that weigh towards the conclusion that although L.M. and F.M. were negligent in their response to the crisis, their conduct was not gross negligence.”

This article can be found on the web at: http://www.njcases.com/168/

If you need legal help in matters similar to those described in this document, call Howes & Howes for a prompt, confidential consultation.

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Raritan, New Jersey 08869

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