The Focus of Title 9 Is Not The “Culpability of Parental Conduct” But Rather “The Protection of Children.”
Docket No. A-1550-19
Decided November 1, 2021
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division reversed a finding of abuse and neglect after defendant left the child in a seat and fled the apartment after the other party went after him with a knife.
In C.F., Defendant, who lived in Arizona during Cindy’s pregnancy, returned to New Jersey recently before Josh was born on November 9, 2018. On November 21, 2018, defendant was visiting Josh at Cindy’s apartment. The Division’s special response unit answered a referral from the Passaic Police Department at 2:51 a.m. on November 22. Police responded to the apartment because defendant called them claiming Cindy was “acting disorderly,” Josh was in the apartment, and he believed “she [was] a danger to herself and the baby.” Police “knocked the door down in order to gain entry” and spoke with Cindy. She claimed that she and defendant had a verbal dispute and defendant locked himself in Cindy’s bedroom. Initially, Cindy told police she used a “knife to try and pry the door open[,]” but later admitted she threatened suicide to convince defendant to open the door. Police observed cuts on Cindy’s wrists, and she was intoxicated. A third person M.G. (Mike) was in the apartment when police arrived.4 Police summoned emergency medical services who took Cindy to the hospital where she was held for psychiatric evaluation.
Division workers who responded to the hospital spoke with Cindy, who said defendant was playing “mind games,” without further elaboration. Cindy reiterated that she was cut trying to use a knife to get into the locked bedroom. However, when confronted by the worker, Cindy admitted the cuts on her wrist were self-inflicted.
Division workers also spoke to defendant at the hospital. He recounted two incidents which eventually led him to summon police. The first occurred when Cindy and Mike left to get wine. When they returned, Cindy got mad at defendant and left again to buy more wine with Josh in the car seat. Upon her return, Cindy tried to “sideswipe” defendant, who was outside, with her car.
Defendant said he was feeding Josh when Cindy got angry at him again and started grabbing knives. Defendant and Mike left the apartment to give Cindy time to “calm down.” When they returned, Cindy was in the shower, but, when she got out and saw defendant, she again grabbed a knife. Defendant then locked himself in her bedroom, called police and left the bedroom through a window. Josh was in his baby swing in the kitchen for the duration of the dispute until police arrived.
In his oral opinion that followed the testimony, the judge recounted the events as described by Cindy and defendant. He noted that defendant said Cindy had been drinking alcohol and was driving with Josh in the car. The judge noted that on her return, Cindy “took out knives and attempted to attack [defendant] while [Josh] was in his baby swing.” Cindy left the apartment with a friend, returned, and took a shower. When Cindy emerged, “she immediately attempted to attack [defendant] again with a knife.” The judge said defendant “locked himself in the bedroom” and “proceeded to jump out of the bedroom window . . . . [Josh] remained in the kitchen in his baby swing for the entirety of this incident.”
The judge found that Cindy “acted in a willful and wanton disregard of the safety or the potential safety of [Josh] who was . . . in close proximity to both the mother and the father at the time of the incident.” As to defendant, the judge found he “inadequately supervised [Josh] by leaving [the infant] in his baby swing in the kitchen, despite being aware that [Cindy] was in crisis with a knife in her possession.” The judge also added that “both parties had admitted to drinking.”
Defendant appealed and the Appellate Division reversed, finding the Judge failed to take into account the totality of the circumstances in that Cindy threatened defendant with a knife twice before he fled. This was not the minimal standard of care, or gross negligence, as required by the neglect and abuse statute.
For abuse and neglect cases, “The focus of Title 9 ‘is not the “culpability of parental conduct” but rather “the protection of children.”‘” N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 368 (2017) (quoting Dep’t of Child & Fams., Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015)). “[W]hen there is no evidence of actual harm, the focus shifts to whether there is a threat of harm.” E.D.-O., 223 N.J. at 178 (citing N.J. Dep’t of Child. & Families v. A.L., 213 N.J. 1, 22 (2013)). “Under those circumstances, ‘the Division must show imminent danger or a substantial risk of harm to a child by a preponderance of the evidence.'” Ibid. (quoting A.L., 213 N.J. at 23).
Title 9 defines an “[a]bused or neglected child” as one under the age of eighteen 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, including the infliction of excessive corporal punishment . . . . [N.J.S.A. 9:6-8.21(c)(4)(b) (emphasis added).]
A “minimum degree of care” means that a parent’s conduct must be “grossly negligent or reckless.” N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 180 (2014) (quoting Dep’t of Child. & Families, Div. of Youth & Fam. Servs. v. T.B., 207 N.J. 294, 306 (2011)). “The Division must establish that, at a minimum, a parent acted with gross negligence or recklessness to succeed in a prosecution under N.J.S.A. 9:6-8.21(c)(4)(b).” Id. at 181. A parent’s failure to perform some “cautionary act” is insufficient unless that failure “rise[s] to the level of gross negligence.” T.B., 207 at 310. Given the fact-sensitive nature of the inquiry, “[t]o determine if a parent or guardian failed to exercise a minimum degree of care, we must additionally ‘account for the surrounding circumstances.'” A.B., 231 N.J. at 369 (quoting E.D.-O., 223 N.J. at 180).
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