Steven,
I am glad that you asked. Here are the essential facts as stated by the App Div:
On February 18, 2012, the Division of Child Protection and Permanency (Division) received a referral from the Gloucester Township Police Department reporting an incident at a home in Blackwood, involving a child [Carol] with blood-stained clothing. According to the police report of the incident, there was a trail of blood to three separate residences. The police knocked on the door of the house where the blood trail ended, the residence where Jane lived with her mother. There was no response, but the police were able to enter the house through a partially open window and found "the living room to be a mess, [with] shattered glass, blood, and a broken flower pot with dirt all over the living room floor. The kitchen had multiple cabinets open, drawers on the ground and [knives] on the table."
The officers announced their presence and R.S. (Rex)[Mom's father], Carol, Jane, and her brother emerged from the bedrooms. Rex carried Carol, who wore a blood-stained shirt. There was debris and trash all over the house. Police found an empty glassine bag, a home-made pipe, and a bloody $50 bill outside the house. The police confirmed the blood on [Carol's] clothing was from [Jane] touching [Carol] while [Jane] was bleeding.
"Jane admitted if she were to take a drug test she would test positive for suboxine (her prescribed medication), as well as cocaine and marijuana."
Jane, her brother, and her father were all recovering heroin addicts.
Said the App Div.:
"The issue here is whether Jane's admission she would test positive for drugs, the damage found in Jane's home, and [her father's] belief Jane was under the influence, constitutes a failure to exercise a minimum degree of care by recklessly creating "harm, or [the] substantial risk thereof[.]" N.J.S.A. 9:6-8.21(c)(4)(b). Whether a particular event should be classified as merely negligent, as opposed to gross or wanton negligence, can be difficult to determine. Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011)."
The trial judge returned the child to the mother without restrictions. All he did was say that she had abused and neglected her child regarding the incidents described above.
According to the App Div., "here the issue is whether there is sufficient evidence of abuse or neglect where a parent has admitted to recent drug use, but not while parenting a child." (Emphasis added)
Seems to me there was a risk of imminent harm to this child in this household at the time in question. Mom admitted that she would flunk a drug test at that time. She stated to the police that she was in bed with her child at that time. The child may not have been physically harmed when the police and DCPP folks showed up, but the circumstances were horrible for the child (see above facts) and the risks of harm were certainly evident – to me.
The trial judge was right, in my opinion: "Something happened in that house." I don't think we have to leave common sense out of the equation or use a proof burden beyond a reasonable doubt.
The trial court put the child back in the home with the mother. That's fine. But the trial court's finding of abuse and neglect should have been sustained on appeal – sez me.
Hanan
NJSBA | Communities | All Discussions | All Discussions | Family Law | RE: They've got to be kidding!! | | | | | | I am interested to see where this discussion is going. Do you think that, merely because she used drugs which apparently had no affect on her ability to parent is, in and of itself, neglect. If she had a glass or two of wine, or a cocktail or two, do you think that would constitute abuse and neglect.
Original Message------
FAMILY LAW
25-2-5333 New Jersey Division of Child Protection and Permanency v. J.D., App. Div. (per curiam) (14 pp.) Defendant J.D. (Jane) appeals the Family Part order finding she abused or neglected her three-year old daughter C.S. (Carol). The panel reverses, finding that Jane's admission she would test positive for drugs, the damage found in Jane's home, and Carol's father's belief that Jane was under the influence did not demonstrate that Jane's conduct constituted abuse or neglect since, while smoking marijuana and using cocaine are careless and negligent actions, mere negligence does not satisfy the statutory requirement that there was willful, wanton or reckless conduct sufficient to harm or pose a risk of harm to the child and here, there was no evidence that Carol was harmed or that she was directly exposed to the broken glass or knives in the home.
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Hanan Isaacs Esq.
Kingston NJ
(609)683-7400
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