Endangering the Welfare of a Minor/Child —- New Jersey Supreme Court Decision
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
Have you been charged with endangering of a child? Was the child in an immediate risk of danger? Was the child around illegal substances, pills, or poor weather conditions? Were you under the influence around them? How old were the kids? Were they permanently affected from this event or could have been affected? Were the kids exposed to a substantial risk of harm?
The New Jersey Supreme Court affirmed the trial court and Appellate Division decision affirming a conviction under N.J.S.A. 2C:24-4(a) can be sustained by exposing children to a substantial risk of harm as opposed to actual harm. The endangering the welfare of a child statute is N.J.S.A. 2C:24-4(a)(2) and provides, in pertinent part: “[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A.] 9:6-1, [N.J.S.A.] 9:6-3 and . . . [N.J.S.A. 9:6-8.21] is guilty of a crime of the second degree.”
The related Title 9 DCPP charge N.J.S.A. 9:6-3 delineates, in relevant part, that “[a]ny parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree.” (emphasis added). N.J.S.A. 9:6-8.21, in pertinent part, defines “[a]bused or neglected child” as including: “a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . or by any other acts of a similarly serious nature requiring the aid of the court.”
The court ruled N.J.S.A. 2C:24-4(a)(2) is clearly and readily capable of comprehension and the Suprme Court sees no ambiguity in the Legislature incorporating a “substantial risk” of harm from N.J.S.A. 9:6-8.21 into N.J.S.A. 2C:24-4(a), so the appellate panel here properly concluded that “[a]pplying this rule of construction would seemingly result in an uncomplicated interpretation of the statutory offense.” N.J.S.A. 2C:24-4(a)(2) defines “harm” by expressly incorporating N.J.S.A. 9:6-8.21, which proscribes exposing a child to a substantial risk of harm. No extrinsic evidence is necessary, nor is resort to the doctrine of lenity which is only pertinent if an analysis of statutory language fails to resolve a statutory ambiguity.
The Supreme Court turned to New Jersey’s appellate courts’ long term unanimously decisions that have held the State is not required to prove actual harm to a child to convict under N.J.S.A. 2C:24-4(a)(2). Instead, they have concluded that proof of a child’s exposure to a substantial risk of harm is sufficient to sustain a conviction. See, e.g., State v. N.A., 355 N.J. Super. 143, 150–51 (App. Div. 2002); State v. M.L., 253 N.J. Super. 13, 31 (App. Div. 1991) (collecting cases). Not one published appellate opinion holds otherwise. The Court found no reason to disturb that decades-old sound precedent predicated on the plain language of the statute and notes that the legislative branch is presumed to be aware of judicial constructions of statutory provisions. Had the Legislature chosen to insist on proof of actual harm to a child to convict under N.J.S.A. 2C:24-4(a)(2), it was free to amend the statute, as it did in other aspects of the statute, in the nearly three decades since M.L. The statute expressly subsumes the Title 9 provisions signaling a legislative intent to broaden the statutory definition of “harm.” It would show little respect for the legislature were courts to suppose that the lawmakers meant to enact an irrational scheme.
Turning to the facts in this case the court ruled the State successfully proved that defendant exposed the children in her care to imminent danger and a substantial risk of harm pursuant to N.J.S.A. 2C:24-4(a). Six underage children, ranging in age from one to thirteen, were housed in a confined space. Drugs hauntingly surrounded children’s toys and clothing. The ease of access to cocaine, heroin, and marijuana, and the attraction of brightly colored pills, all created a potentially lethal trap for the children that could have been easily sprung at any moment.
The Court considers the concerns of giving prosecutors too much discretion in choosing to charge under N.J.S.A. 2C:24-4(a)(2), a second-degree crime, over Title 9, a fourth-degree offense. Criminal statutes can overlap in prohibiting the same basic act, and in those situations the proper prosecuting authority in the sound exercise of the discretion committed to him or her may proceed under either act. Prosecutorial discretion, however, is not unlimited, and judicial oversight is mandated to protect against arbitrary and capricious prosecutorial decisions. A defendant who proves that a prosecutor’s exercise of discretion was arbitrary and capricious would be entitled to relief. However here the court found no evidence that the prosecutor abused her discretion in choosing to charge defendant under N.J.S.A. 2C:24-4(a)(2) instead of Title 9. Defendant bears the burden of proving that the prosecutor acted arbitrarily and capriciously but provided no reasonable justification as to why the prosecutor should have charged her under Title 9 instead of N.J.S.A. 2C:24-4(a)(2). Rather, defendant claims generally that prosecutors retain too much discretion in choosing whether to charge defendants under N.J.S.A. 2C:24-4(a)(2) or Title 9. That contention, however, is directly contrary to precedent that provides prosecutors such discretion. Defendant has similarly not provided any evidence that the prosecutor’s decision to charge under N.J.S.A. 2C:24-4(a) was discriminatory or predicated on prejudice. Indeed, the record here provided the prosecutor ample justification for her decision to charge defendant under N.J.S.A. 2C:24-4(a)(2).