“Erring on the Side of Caution” is still Erring

I recently had the pleasure of speaking to a judge about my most recent publication, “Play by the Rules”, an article which examines the court rules and statutory requirements where abuse or neglect is alleged by a parent or guardian versus the agency. The judge and I got into an intellectual debate about the role of judges in these cases. He suggested to me that judges are well intentioned and always try to “err on the side of caution”. While I agree that most judges are well intentioned, the “error” should be avoided no matter which side it falls.

I often sense that judges consider potential child abuse to be so egregious that almost anything on the other side is a de minimus intrusion that should not be avoided. The problem with this mindset is that it fails to recognize that the agency often overwhelms and antagonizes families, making the situation worse than it actually was. Then, interventions are implemented for the purpose of addressing family distress that was brought about by the agency’s involvement, rather than by the family’s inherent functioning. This is akin to breaking someone’s leg, applying a cast and applauding yourself for having “solved” the problem of the broken leg. But for your breaking the leg, your cast would have been unnecessary.

On the flipside, the agency often does provide necessary intervention and assistance to families. The threat of removal often does force people to make necessary improvements in their family situation that otherwise would not have been undertaken. Parents going to substance-abuse treatment, undertake counseling and commit to diligent thoughtful consumption of prescribed medication to avoid the potential removal of their children. So, in effect, the agency can and does accomplish many worthwhile interventions in many circumstances.

However, where a family resists the division’s intervention, courts tend to hold that against them and work to effectuate the divisions forced involvement, where a judge may otherwise have been able to resolve the issue without such involvement. It is not unheard of, and in fact is rather common, to have a family judge order a parent to have supervised parenting time pending completion of substance-abuse treatment. The agency is not needed in this circumstance.

New Jersey law allows for any person with an interest in a child to file an action relying upon the strictures of title 9. See, N.J.S.A. 9:6-8.34. Get, the judges prefer to have the agency investigate and determine child abuse and neglect, often giving undue weight to the agency’s perspective on an issue. If the agency files a complaint, the parent has a right to a trial and discovery and a probative analysis of the allegations made against him. However, where divorcing spouses make allegations against each other, the court will often direct the agency to investigate and simply rubberstamp whatever outcome they reach, dispensing with the necessary due process of a trial and discovery and the right of the parent to seek vindication in court.

For these reasons, the article, “Play by the Rules”, proposes that there be one set of rules and requirements and due process considerations where child abuse and neglect is alleged – no matter who makes the allegation.

But beyond this proposition, it should never be lost upon our judiciary that the child welfare agency is nothing more than a series of individuals who are making judgments based upon information. Just as information given to the mother in a contested custody case must be vetted before the court says the father should be held accountable for same, so too must the agency’s information and perspective on an issue be tested in court. Failure to do so just serves the families of our state. Giving undue weight to the opinion of the agency, particularly where the court is not aware of what information it relied upon in reaching its conclusion, disserves families.

And lest we forget, erring on the side of caution is still airing. And judicial error should be avoided at all costs.