http://www.njcases.com/index.php/ NJ Legal Beat en tim.howes@njcases.com Copyright 2013 2013-01-21T18:43:00-05:00 http://www.njcases.com/folio/dcpp_the_song_remains_the_same/ http://www.njcases.com/folio/dcpp_the_song_remains_the_same/#When:19:43:00Z In 2012, the Division of Youth and Family Services, commonly known by its acronym “D.Y.F.S.”, changed its name to the Division of Child Protection and Permanency.  D.C.P.P., as it is now known, appears to be nothing more than the same organization with a new name.  The personnel, the tactics and the results are the same, especially where “low-risk families” are concerned. D.C.P.P. is the new name for the Division of the New Jersey state government with one of the most troubled histories.  But what’s in a name.  When the state changed the name of the organization from D.Y.F.S. to D.C.C.P. about one year ago, there was talk that the mission would change, especially where low-risk families are concerned.  One year later, the Division doesn’t seem to have changed anything more than its name. There are plenty of occasions in which a family needs assistance and/or supervision from D.C.P.P..  It would be hard to find someone to disagree with the proposition that parents who severely abuse children should have those children removed.  There are also some that should be supervised by D.C.P.P. while they partake of rehabilitative services and/or parenting education.  Those parents have something in common:  They abused or neglected their children. But what of the “low-risk” families? Low-risk families are those families who have not abused or neglected their children, but somehow come under the watchful eye of D.C.P.P..  Despite the fact that there has been no abuse and no neglect, D.C.P.P. will often seek to supervise these so-called low-risk families, and to compel parents to undertake services or parenting education regardless. The law does not require a parent to undertake services through D.C.P.P. without a court order.  A court order requires at least an initial showing by D.C.P.P. of abuse or neglect.  Thus, if D.C.P.P. does not substantiate abuse or neglect, then D.C.P.P. cannot compel that parent to submit to supervision, education or rehabilitative services.  Despite the lip service paid to the new mission where low-risk families are concerned, the Division continues to supervise them and monitor them at taxpayer expense.  The name has changed, but the song remains the same. NJ Legal Beat 2013-01-21T19:43:00-05:00 http://www.njcases.com/folio/does_dcpp_abuse_the_order_to_investigate/ http://www.njcases.com/folio/does_dcpp_abuse_the_order_to_investigate/#When:16:45:00Z In recent years, DCPP has used the “Order to Show Cause for Investigation” to obtain restraints on parenting time, and to obtain court ordered evaluations.  DCPP’s attorneys recently conceded to the Appellate Division that this practice is not supported by New Jersey law.  Only time will tell whether the Division will reform this practice. New Jersey law empowers DCPP to conduct investigations of allegations of child abuse or neglect.  When parents or guardians do not cooperate, the law allows DCPP to obtain an “Order to Show Cause for Investigation” from a Judge of the Superior Court, Family Part.  (See N.J.S.A. 30:4C-12).  In recent years, DCPP has been using this process to obtain significant restraints on parental rights.  We have seen it in our representation of privately retained clients at Howes & Howes, and the Office of the Public Defender recently reported the problem to the Appellate Division.  (See Div. of Youth and Family Servs. v. L.C., Docket No. A-4380-09.) DCPP’s practice in recent years has been to seek some of the following results through the “Order to Show Cause for Investigation”: (1) Supervised visitation; (2) Change in custody from one parent to another: (3) Suspended visitation; (4) Psychological evaluation; (5) Psychiatric evaluation; (6) Drug or alcohol evaluation. The problem with this practice is that an “Order to Show Cause for Investigation” does not require DCPP either to prove or to substantiate child abuse or neglect.  Further, the above list are not typically investigative tools.  Investigative tools tend to be records requests, parent interviews or child interviews.  In a recent unpublished opinion, the Appellate Division has voiced its discomfort with the practice of placing parental restraints in orders involving investigation.  Additionally, DCPP, through its attorney “acknowledged that the order should not have contained provisions restraining [the parent’s] contact with her children or ordering evaluations or therapy.” (See Div. of Youth and Family Servs. v. L.C., supra) Now that DYFS has committed to this position in the Appellate Division, one would hope that they would change their own practices. NJ Legal Beat 2012-05-03T16:45:00-05:00 http://www.njcases.com/folio/appellate_division_parental_error_is_not_the_same_as_child_neglect_under_ne/ http://www.njcases.com/folio/appellate_division_parental_error_is_not_the_same_as_child_neglect_under_ne/#When:20:48:00Z 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.” NJ Legal Beat 2012-02-10T20:48:00-05:00 http://www.njcases.com/folio/changes_in_the_howes_howes_practice_in_2012/ http://www.njcases.com/folio/changes_in_the_howes_howes_practice_in_2012/#When:18:11:00Z Howes & Howes is a small law firm located in the heart of New Jersey.  We are in the twentieth year of service to clients in New Jersey.  With two experienced lawyers and two top-notch legal assistants, we will continue to provide the same level of service to clients as we have for the past two decades, with some small changes due to the appointment of H&H partner Katherine Howes as Judge of the Bound Brook Municipal Court. 2012 is off to a good start at Howes & Howes.  That good start has necessitated some minor changes to our practice. Howes & Howes will continue to operate the same full-time practice of law at our Raritan office.  It will remain fully staffed and open for business a minimum of five days each week.  That will not change.  What will change is some refinement in our areas of practice as follows: 1.  Municipal court:  Katherine Howes will no longer represent clients in the municipal courts of New Jersey.  She can no longer do so as a result of an appointment that took effect on January 1, 2012. 2.  Municipal court:  Tim Howes will no longer represent clients in the municipal courts in Somerset County. He will continue to bring his two decades of experience in municipal court practice to the table as he represents clients in the municipal courts of all other New Jersey counties. 3.  Juvenile court:  Tim Howes will no longer represent clients in the juvenile part in Somerset County. He will continue to bring his 23 years of experience in juvenile part practice to the table as he represents clients in the juvenile part of all other New Jersey counties. 4.  Criminal court:  Tim Howes will no longer represent clients in the criminal court in Somerset County. He will continue to bring his quarter century of experience in criminal court practice to the table as he represents clients in the criminal courts of all other New Jersey counties. If you have any questions about our areas of practice you can contact Pamela Vail or Jennifer Starr at the Howes & Howes office. NJ Legal Beat 2012-01-29T18:11:00-05:00 http://www.njcases.com/folio/the_2012_primary_ballot_storm_clouds_on_the_horizon/ http://www.njcases.com/folio/the_2012_primary_ballot_storm_clouds_on_the_horizon/#When:17:33:00Z There is one aspect of elections that receives little public attention:  The creation of the ballot in primary elections.  There are statutes and constitutional principles that undergird the ballot creation process.  Each and every one of those legal principles will be in play in the coming months as County Clerks all across the Garden State design primary election ballots for the June primary.  H&H partner Tim Howes has been involved in significant ballot litigation since 2001, and currently serves as Associate General Counsel to the NJGOP, and is keeping a watchful eye on the ballot design process.Ballot construction for a primary election can be a tricky process, especially in a year in which there are elections for many different offices on the primary ballot, and especially where there are a large number of competing candidates.  The 2012 primary promises to be such a year, and the ballot construction process may well land where it has landed twice in the past decade:  The New Jersey Superior Court. New Jersey law vests the County Clerk in each of New Jersey’s twenty-one counties with the authority to construct the primary election ballot.  The County Clerk has a degree of discretion in how to arrange the offices and names of candidates on the grid of the ballot for use in the voting machine.  For the most part, logic prevails and the candidates are placed in the familiar grid.  When there are statewide elections, the process is more complicated.  It is more complicated because statewide elections tend give rise to “slates” of candidates who wish to “bracket” together on the ballot.  Two New Jersey statewide primaries in the past decade resulted in significant litigation and reported decisions.  The 2001 Republican gubernatorial primary gave rise to the Schunder v. Donovan decision.  The 2008 Democratic primary gave rise to the Andrews v. Rajoppi decision.  Both of those decisions establish interpretive principles for the County Clerks. This year, the County Clerks will have to use those principles, together with the specific mandate of New Jersey statutes to design the ballot in a year in which there are a multiplicity of offices on the ballot:  (1) Presidential preference; (2) At-large delegates to the national convention; (3) Congressional district delegates to the national convention; (4) United States Senate; (5) House of Representatives in all 12 Congressional Districts; (6) State Assembly in at least two districts; (7) County Freeholders in most counties; (8) County Constitutional officers in many counties; (9) Municipal mayors and council people in most municipalities (as many as four in some places); (10) Local party county committee persons (Two in each voting district.). In addition to the proliferation of offices on the 2012 primary election ballot, there are potentially several competing slates of candidates.  Candidates for different offices who share a philosophy or agenda have a right under the First Amendment of the Unites States Constitution to be associated together on the primary election ballot.  This applies both to candidates who are endorsed by county party committees, and to those who are not.  There are limitations on that right, however.  In order to bracket together on the ballot, candidates must comply with certain legal requirements before the County Clerk will group them together in a column or row on the ballot. In the 2012 Republican primary, there are four presidential candidates who may still be in the race when the ballot is designed.  That means that there may be four slates of delegates to the Republican National Convention on the ballot in addition to the presidential preference.  At present there are three candidates in the Republican primary for the United States Senate.  The great unknown is how the presidential candidates and U.S. Senate candidates will choose to appear on the ballot.  Will they associate with candidates for other office?  If the answer is yes, then there may be entire columns or rows of competing candidate slates on the ballot. With competing slates for all the different offices, the ballot design process promises to be both complex and interesting.  As counsel to the NJGOP, I will be keeping a close eye on the process. 2012-01-29T17:33:00-05:00 http://www.njcases.com/folio/legislative_vacancy_law_in_new_jersey/ http://www.njcases.com/folio/legislative_vacancy_law_in_new_jersey/#When:18:30:01Z During the past two months, New Jersey has lost two well-loved veteran legislatures, both of whom passed away before they could begin a new term in office.  Hon. Peter Biondi passed away two days after winning another term in the 2011 General Election.  Hon. Alex DeCroce passed away the day before he was to begin a new term.  New Jersey election law anticipates even tragic events like these and provides a roadmap to fill the vacancy.  H&H partner Tim Howes served as counsel and parliamentarian to the Title 19 convention held to determine the interim successor in New Jersey’s Sixteenth Legislative District. It was a good night for democracy in Hillsborough as over 200 elected county committee people from four counties met at the Hillsborough Municipal Complex to select an interim successor to the late Peter Biondi.  Assemblyman Biondi served the Sixteenth Legislative District for seven two-year terms.  On November 8, 2011, the voters elected him to to an eighth.  Sadly, two days later, Assemblyman Biondi passed away, exactly two months before his eighth term was scheduled to begin.  His passing created a vacancy in the New Jersey Legislature.  According to the New Jersey Constitution, a new legislative session begins on the second Tuesday of January following a statewide legislative election.  As such, Assemblyman Biondi’s seat became vacant on January 10, 2012. There are portions of four counties in the Sixteenth:  Mercer, Middlesex, Hunterdon and Somerset.  Following New Jersey law to the tee, the elected Republican county chairs of those four counties notified the members of their county committees of the vacancy, and of the scheduling of a convention to name the interim successor.  Those four county chairs then worked together to formulated proposed rules for the convention.  Once those rules were drafted, they were circulated to the county chairs and the candidates, then on the night of the convention, they were distributed to all of the county committee persons in attendance. Legislative vacancy law requires a quorum of at least one-half of the eligible county committee people.  Only those county committee people who were elected in a primary election, and those who have been chosen to fill vacancies pursuant to local rules are eligible.  And only those county committee persons whose election and/or membership in the county committee is duly registered with the County Clerk are deemed to be lawful members of the county committee.  In all, 300 county committee persons were eligible to vote at the convention.  215 appeared and registered.  After the ceremonials, the Convention Rules were moved and seconded from the floor with minimal turbulence.  Once the rules were adopted and the chair established, the convention moved on to its business. There are some very basic points of law covering a Title 19 Convention: 1.  Notice from the county committee chairs to the members must occur within seven days of the vacancy. 2.  There must be a quorum of at least one-half of the eligible voters. 3.  Only duly registered county committee persons, registered seven days prior to the convention are eligible to vote. 4.  The convention rules must be moved and seconded from the floor of the convention.  (County party rules do not apply.) 5.  The chair of the convention must be nominated and seconded from the floor. Since the chairs of the convention followed these very basic rules to a tee, the convention went well, and a clear winner was established.  2012-01-21T18:30:01-05:00 http://www.njcases.com/folio/congratultions_to_judge_howes/ http://www.njcases.com/folio/congratultions_to_judge_howes/#When:23:03:01Z On January 1, 2011, Howes & Howes rang in the new year with a big accomplishment. Bound Brook Mayor Carey Pilato nominated H&H partner Katherine Howes to be the Judge of the Bound Brook Municipal Court.  The borough council unanimously confirmed her. This is a part-time job.  It will not cause any major changes in the practice or operation of Howes & Howes. We will still serve our clients here in New Jersey, just as we have since 1991. The Borough of Bound Brook has appointed Katherine Howes to a three-year term as its municipal court judge.  Ms. Howes brings a strong resume to the bench.  In 1991 Ms. Howes became only the second woman judge in the history of Somerset County when she was appointed to the first of two terms as the Judge of the Raritan Borough Municipal Court.  She was known as a tough but fair judge, who ran a tight ship and spoke Spanish from the bench. Since then, she has served as a municipal prosecutor in Far Hills and Robbinsville, municipal public defender in Bernardsville and most recently as a member of the Peapack-Gladstone Borough Council. This appointment is an honor.  Ms. Howes is thankful for the opportunity to return to the bench.  This appointment will not alter her practice in any dramatic way.  She will continue as a partner in Howes & Howes, which will continue to be her primary occupation.  Municipal court is a part-time job She is not giving up any of her current clients. The appointment has, however, altered Ms. Howes’ participation in other community activities.  She has resigned from the Peapack-Gladstone Borough Council, from the Board of Directors of Anderson House and from the District XIII Ethics Committee. NJ Legal Beat 2012-01-02T23:03:01-05:00 http://www.njcases.com/folio/south_amboy_election_contest_appellate_division_disqualifies_a_voter/ http://www.njcases.com/folio/south_amboy_election_contest_appellate_division_disqualifies_a_voter/#When:17:24:00Z The 2010 election for Mayor of South Amboy is still not over.  The Appellate Division handed challenger Mary O’Connor a victory in a decision reported today (November 23, 2011) when it disqualified one voter on the basis that she was not properly domiciled in South Amboy.  Practically speaking, that leaves a one vote margin between the two leading candidates.  The opinion is of interest for its analysis of the law governing domicile. Election day in 2010 was an interesting day for South Amboy.  South Amboy has long been a stronghold of the Middlesex County Democratic machine.  Independent candidate Mary O’Connor nearly pulled off the upset of the year.  After the votes were counted, Ms. O’Connor trailed Fred Henry by one vote, 1,128 to 1,127.  With the election a virtual tie, she filed for an election contest.  During the election contest the Middlesex County Board of Elections discovered six previously uncounted provisional ballots, which changed the margin, placing Henry in the lead by three votes at 1,030 to 1,127. The matter proceeded to trial.  The trial reduced the margin to two votes.  Ms. O’Connor appealed, and raised three issues. One of those issues was the domicile of some of the voters.  One in particular testified that her only connection with South Amboy was a room in the back of her business.  The Appellate Division disqualified her vote, and provided some very clear guidance on the issue.  There are some very important concepts to remember: (1) In order to vote in an election, the voter must be registered at his or her domicile. (2) One may have multiple residences but only one “domicile” for purposes of voting. (3) The permanent home of a person is considered his domicile and the place of his or her domicile determines the right to vote. (4) Additionally, and this is not part of the opinion, the law provides for a procedure for a person with multiple residences to elect one of them as his or her domicile.  Such an action is taken through the Board of Elections. When in the course of an election contest, a candidate challenges a voter’s domicile, the court must make a factual determination on the record.  The relevant factors in determining domicile include billing address, residence from which tax returns are filed, mailing address, membership in local clubs, driver’s license, place where a person spends the greatest amount of time, newspaper subscriptions, etc.  Common sense will also uncover other factors relevant to an individual case. The South Amboy case may well head to the New Jersey Supreme Court.  There are other legal issues that Ms. O’Connor may ask the Supreme Court to address, but it remains to be seen if she will proceed. 2011-11-23T17:24:00-05:00 http://www.njcases.com/folio/hudson_county_success_story_court_finds_no_neglect_against_hh_client/ http://www.njcases.com/folio/hudson_county_success_story_court_finds_no_neglect_against_hh_client/#When:16:53:00Z Howes & Howes represents parents statewide.  In a recent Hudson County case, the Division accused our client of perpetrating domestic violence, and the client’s spouse of failing to protect the children from the alleged domestic violence.  The case was based almost entirely on the suspicions and hunches of the Division case worker.  The case culminated in a fact-finding hearing.  After two sessions of testimony, the trial court found no child abuse or neglect, and dismissed the case. 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. NJ Legal Beat 2011-11-19T16:53:00-05:00 http://www.njcases.com/folio/a_look_back_at_2003_the_31st_legislative_district_showdown/ http://www.njcases.com/folio/a_look_back_at_2003_the_31st_legislative_district_showdown/#When:01:18:00Z The 31st Legislative District has been a fault line in Hudson County Democratic politics for the past decade.  Factions of the Democratic Party have fought over the State Senate Seat and the two Assembly seats in knock-down drag-out fashion.  In 2003 there was a cataclysmic battle between the forces of the Hudson County Democratic Organization, led by Joe Doria, and the forces of the Reform Democrats, led by Mayor Glenn Cunningham.  And like many things that happen in Hudson County politics, the election ended up in the law books. In Hudson County, politics and elections are part blood sport and part cottage industry.  Control of the levers of power means control of jobs, of law enforcement and of the rivers of tax money that flow through the various city halls and the county seat.  In addition to the county government and the city halls, there are three legislative districts.  The 31st district covers all of Bayonne and part of Jersey City, and has provided more political drama in the past decade than the other 39 districts combined. In 2001, two events opened up the fault lines in the 31st:  Glenn Cunningham was elected Mayor of Jersey City, and powerful Hudson County Executive Bob Janiesziewski was indicted for official misconduct.  The election restored Jersey City City Hall to the Democrats after nine years in Republican hands.  The indictment removed the most powerful politician from county politics. In 2003, Mayor Cunningham ran for state senate in the 31st.  On his ticket were former freeholder Lou Manzo and Bayonne City Councilman Tony Chiappone (Both Chiappone and Manzo would later become Howes & Howes clients).  Because he was mayor of Jersey City, Cunningham was able to raise enough money to challenge the Hudson County Democratic Organization (HCDO), whose ticket was led by former Assembly Speaker Joe Doria.  The Democratic primary was brutal and it was expensive.  Once the votes were counted, the Cunningham team had won. HDCO challenged the election in court, alleging that the Cunningham team had committed multiple serious violations of New Jersey campaign finance law.  The Superior Court heard the case under the election contest statute.  At the outset, the Cunningham team moved to dismiss the case or in the alternative remand the case to ELEC on the grounds that the court lacked jurisdiction over campaign finance questions.  The court denied their motion.  The case proceeded to trial. The trial court did not disturb the result of the election. HCDO/Team Doria appealed.  It was their contention that the alleged campaign finance violations effected the course of the election, and as such, Team Cunningham should forfeit their victory.  The Appellate Division held that the campaign finance violations should be remanded to the Election Law Enforcement Commission (ELEC) because the statute provided ELEC with the authority to administer the campaign finance laws.  The litigation resulted in a reported decision of the Appellate Division:  IN RE: the CONTEST OF the DEMOCRATIC PRIMARY ELECTION OF JUNE 3, 2003. Team Cunningham went on to win the general election, and took their seats in the state legislature. Their victory did not last.  In 2004, Mayor Cunningham died of a heart attack.  His coalition unraveled.  In the 2004 special election, his senate seat went to Joe Doria (who beat Chiappone), and the mayor’s seat went to Jerry Healy (who beat Manzo).  The Cunningham coalition unraveled after that.  Indeed, both Manzo and Chiappone are now retired from politics.  The Senate seat went back to the Cunningham family when Cunningham’s wife, Sandra won the seat, beating Manzo in the primary.  Sandra Cunningham still serves the 31st District as its Senator. 2011-10-10T01:18:00-05:00