New Jersey Divorce and Family Lawyer Blog
The Family Court handles divergent case types. Although most people think the issues handled by Family Part judges relate to divorce, the reach of the family court is far broader. Many of the controversies resolved by the court deal with issues regarding children including Juvenile matters and matters involving abuse and neglect. Whether embedded in a divorce or presented to the court as an independent action, there are no more important issues faced by a Family Part chancellor than child-centered issues. The Division of Child Protection and Permanency, formally known as The Division of Youth and Family Services, is charged under our law with protecting children and supervising those custodians whose action causes concern. Certainly the mandate of the Division is to keep families united, but often the Division takes custody of children and places them outside their home if it is determined that the child is endangered in the household. The Division by mandate responds to reports of abuse received from known responsible sources as well as anonymously reported instances of abuse or neglect.
In the recently published decision, D.Y.F.S. v. S.I. (App. Div. 2014), the question of the authority of the Division to remove a child from her home was addressed. In this matter, a teenage girl was in the custody of her grandmother. She had written a note indicating she was contemplating suicide and when confronted by school personnel, she complained that she was bullied in school and that her grandmother struck her once a week. The Division was called in who spoke to the grandmother, asking her to consent to a psychological evaluation of the child. When the grandmother declined to cooperate with the Division, indicating that her granddaughter was just acting out, the Division exercised its powerful right to remove the child first and seek the permission of the court after the removal of the child from her home. This action is called a Dodd removal, in tribute to the State Senator who penned the authorizing legislation.
Once a child is removed, a hearing ensues. In the hearing, the accusations of the child that her grandmother were struck her were unsubstantiated, meaning that the Division investigator did not conclude by a preponderance of evidence that the child was abused. This left the trial court to determine if the child should be removed from her household based on the grandmother’s refusal to allow the requested psychological evaluation. The trial court, reflecting on the high incidence of teenage suicide, found that the refusal to allow for a psychological evaluation constituted abuse and neglect under the statute.
On appeal, the Appellate Division court noted that N.J.S.A. 9:6-8.21(c) provides for a finding of abuse or neglect where conduct is grossly and wantonly negligent, not merely negligent. Hence the question was whether the trial court could find by a preponderance of the evidence (more likely than not) that the acts of the grandmother were inimical to the child’s safety.
The court in such a hearing is charged with finding “the probability of present and future harm.” The court indicated the issues presented on appeal was, ” …whether S.I.’s refusal to take the child to the hospital for a psychiatric evaluation constituted a failure to exercise a minimum degree of care, recklessly creating “harm, or [ the] substantial risk thereof[.].”
The court found that the grandmother’s decision constituted a judgment call based on her experience of the child and family dynamics. Although the decision not to have the child evaluated may have been imprudent it was certainly not reckless based on the grandmother’s history with the child and the fact that there was no prior involvement with the Division. Accordingly the removal of the child from the grandmother’s household was reversed.