“Every failure to perform a cautionary act is not abuse or neglect. When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute.” This principle, first established in DYFS v. T.B., recently formed the basis of a reversal of a neglect finding by DYFS in DYFS v. M.D.
In M.D., a 4 year old reported to her mom that her 12 year old brother touched her and their 7 year old brother in a sexual manner. Mom immediately contacted a child psychologist, involved DYFS and, at the behest of DYFS, notified the Prosecutor’s Office. In response, DYFS and mom entered into a Safety Plan whereby the 12 year old would not be unsupervised with his siblings. The 12 year old began therapy.
After months of therapy, the therapist suggested that the 12 year old be granted gradual increases in unsupervised time, conditioned upon his adherence to rules governing his conduct. On one such occasion, mom found the 12 year old in a state of undress with his siblings. Mom notified DYFS. To thank her for her candor, DYFS substantiated child neglect. After a trial, an Administrative Law Judge agreed with DYFS that mom’s conduct constituted neglect. The Appellate Division, correctly, reversed, citing the “cautionary act” language of T.B.
Change the facts of this scenario somewhat: What if mom had refused to “turn in” her 12 year old to be criminally prosecuted? In all likelihood, DYFS would have substantiated Mom for neglect at that point. Would that substantiation have been upheld? What if mom had placed the 12 year old in therapy, despite not handing him over to be prosecuted? Would that “cautionary act” have sufficed to negate a substantiated finding?
In M.D., mom followed DYFS’s rules – i.e., turning in her 12 year old to be prosecuted and not allowing him to be unsupervised with his siblings – to the tee. No matter how arduous this requirement – to make a parent offer up her preteen to the criminal justice system – mom complied. Yet, once mom followed the instruction of a mental health professional to loosen the reigns on her 12 year old … and told DYFS about it, she was penalized.
How absurd a result! But, it does make one wonder: How many parents are substantiated for nothing more than failure to follow DYFS’s orders? Who trumps – the bureaucrats running DYFS or the treating professionals working with the family? At least in this case, the Appellate Division chose the latter.