The New Jersey Supreme Court has put its foot down against DYFS automatically ripping custody of a newborn child from its mother due to evidence the mother used drugs during pregnancy. Without expert evidence that the child has been harmed or is in imminent danger or at substantial risk of harm, the Division of Youth and Family Services (DYFS), n/k/a the Division of Child Protection and Permanency (DCPP) cannot enter a finding of abuse and neglect under Title 9, the unanimous court held Wednesday in DYFS v. A.L., A-28-11.
The relevant section, N.J.S.A. 9:6-8.21(c)(4)(b), cannot be used to protect a fetus since, the court held, the Legislature drafted Title 9 to protect children only after birth.
On September 10, 2012, we spoke about this very issue and what we knew would be this precedential ruling. See previous post on this site. Hopefully, armed with this wonderful decision for parental defense advocates, the division will make appropriate “reasonable efforts” required by law to prevent removal, rather than take infants from their mothers at the hospital solely because of her addiction.
If you or someone you know suffers from a drug or alcohol problem and fear the loss of your baby or excessive intrusion by the Division, contact us to schedule a consultation to discuss your matter.
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While I love how comprehensive and clearly written A.L is, I do have one complaint: The opinion is somewhat loosey-goosey as to whether under NJSA 9:6-8.21(c), in the absence of actual harm, the Division must prove “imminent danger or substantial risk of harm” *or* “imminent danger and substantial risk of harm.” As defense counsel, I would argue, of course, that the Division must prove both. The A.L. opinion states these two differing standards interchangeably.
Page 2-3: “…the statute requires a showing of ‘imminent danger’ or a ‘substantial risk of harm…”
Page 24: “In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm. See NJSA 9:6-8.21(c)(4)(b)”
Thank you for your comment here. I have reread the decision a few times now and have a few thoughts on your remarks.
As you know, the “imminent risk of harm” standard is required for removal. Conversely, the “substantial risk of harm” is required for a finding of abuse or neglect.
In the A.L. decision, I surmise that the Court uses these phrases interchangeably because at issue is, contemporaneously, both a finding of abuse and neglect and an alleged imminent risk of harm.
The division may seek removal when it beers imminent risk of harm, without ultimately making a finding of abuse or neglect. For instance, if there is a violent act of domestic violence by one parent against the other, and the victim appears presently unable to care for the child (say, she’s hospitalized and no family exists to care for the child), the division could remove premised upon imminent risk of harm but still ultimately conclude that the victim did not abuse or neglect the child.
Conversely, if one parent has a drinking problem, and his or her behavior has emotionally harmed the children, the division may feel comfortable allowing a relative to move into the home and supervise the parents with the children without reaching the conclusion that there is an imminent risk of harm warranting a removal. In this circumstance, the division would likely substantiate abuse or neglect, while not reaching the threshold for “imminent risk of harm”.
Then, of course, you have the common scenario when the division finds both “imminent risk of harm” and “substantial risk of harm”. For instance, if a child makes an allegation of sexual abuse against her sole caregiver, the division would remove immediately premised upon “imminent risk of harm”, and likely determine later that the abuse is substantiated premised upon the “substantial risk of harm” in impairing the child’s well-being by victimizing the child.
In this circumstance where drug abuse in utero is being alleged, the division normally finds both “imminent risk of harm” due to the assumed addiction, as well as “substantial risk of harm” due to the abuse or neglect found in the ingestion of illicit substances in utero. That is the reason why, I feel, the Supreme Court used these two phrases interchangeably in this case.
Allison C. Williams