DCP&P law is contained in the written laws passed by the state legislature, but it is also found in prior cases decided by judges. Case law includes the decisions made by NJ judges in prior DCP&P appeals. The holdings in these cases, when woven together, form a complex legal framework. If some of these concepts are a little confusing, don't worry—the attorneys at the Lento Law Firm understand and can explain and advise you of the case law relevant to your case.
Why Case Law is Important
When a court decides on an issue, it may define a term or clarify a law. This may result in precedent or a holding that the DCP&P and later courts in other proceedings must follow.
Important case law in DCP&P cases in NJ center around three primary areas or issues:
- Standard of Care
- Burden of Proof
Standard of Care
To constitute child abuse under NJSA 9:6-8.21, a guardian must fail to provide a minimum degree of care and must fail to see the inherent danger in a situation or fail to act, or they must create a risk of serious injury.
The standard is one of Gross Negligence. The cases listed in this section provide examples of what actions or failure to act might constitute gross negligence.
Burden of Proof
In Title 9 Abuse or Neglect Proceedings, the Division must prove the allegations by a Preponderance of the Evidence.
In Title 30 Proceedings to Terminate Parental Rights, the standard is a more stringent Clear and Convincing standard.
Many of the cases on this page deal with the type of evidence the Division must provide to meet its burden. Evidence must be based on firsthand knowledge and must be relevant. Some statements are hearsay—that is, the person making the statement is not present to be cross-examined. Reports of Division Caseworkers may come into evidence under a hearsay exception even if the caseworker is not present. But the caseworker must write from firsthand knowledge and must give factual proof and limit opinion testimony. Expert witnesses (such as treating physicians) can give opinions but usually must be available for cross-examination.
Cases and Summaries
Many of these cases are discussed at length in links.
In re Guardianship of Cope, 106 NJ Super. 336 (App.Div.1969)
Cope defines the type of evidence that can and cannot be offered in a child abuse proceeding and sets forth a test for when removal from the parents' care is in the best interests of the child. Evidence provided in a hearing must be as reliable as possible under the circumstances, and the use of hearsay is limited. The accused must be given the fullest opportunity to challenge Division evidence, which usually occurs through cross-examination of witnesses.
GS v. Dept. of Human Services, 157 NJ 161 (1999)
The standard of care in a child abuse proceeding is gross negligence, and simple negligence is not an adequate basis for child abuse. The court found that the guardian “disregarded the substantial probability that harm would result from her actions” and found that it is potential harm to the child that is the focus in a child abuse proceeding.
New Jersey Div. of Youth and Family Serv's v. JY, 352 NJ Super. (App. Div.2002)
The Division must establish by a preponderance of the evidence that a child was abused or neglected. Only competent, material evidence may be admitted. To rely on a stipulation, there must be evidence that the accused have committed acts of abuse or neglect and that the accused agreed knowingly and voluntarily to the stipulation that they had committed the acts.
In re DT, 229 NJ Super. 509 (App.Div.1988)
The court found that proof of injuries that would not typically occur in the absence of abuse or neglect is evidence of abuse and neglect. While the DT court ruled that injuries of this type shifted the burden to the parents to establish that they had not abused or neglected the child, this portion of the ruling was later overruled in New Jersey DCP&P v. J.R.-R., (A-56/57 November 9, 2020). Under this ruling, the burden of proof never shifts to the accused and remains with the Division.
Doe v. G. D. 146 NJ Super. 419 (App.Div.1976)
Housing conditions caused by poverty do not form the basis for child abuse or neglect, even if the conditions are dirty or crowded. In a similar holding, educational neglect is based on truancy or interference with school attendance—it is not based on failure to provide intellectual stimulation.
New Jersey Div. of Youth and Family Services v. JY, 352 NJ Super. 245 (App.Div.2002)
Findings based on unspecified allegations, hearsay statements, unidentified documents, and unsworn colloquies from attorneys and other participants undercut the purpose and protections of DCP&P proceedings.
New Jersey Div. of Youth and Family Services v. GM, 398 NJ Super. 21 (App.Div.2008)
If the parent or guardian is found not to have committed the alleged abuse or neglect or has otherwise addressed the issues, that parent must be given a custody hearing on whether custody should be returned.
New Jersey Div. of Youth and Family Services v. M.C.III, 405 NJ Super. 24. (2008)
To challenge the admission of evidence in an appeal, the parent must have objected to or challenged the evidence at the trial or hearing level. A Division medical consultant may provide evidence as a treating physician under Rule 5:12-4(d).
New Jersey Div. of Youth and Family Services v. KM, 136 NJ 546 (1994)
Parental neglect occurs when a parent has the means to care for a child but does not. Division may pursue both Title 9 (abuse or neglect proceedings) and Title 30 (termination of parental rights proceedings) against the same parents or guardians.
In re Guardianship of KHO, 161 NJ 337 (1999)
Drug use during pregnancy is not legal but does not form the basis of child abuse action unless the child suffers withdrawal or addiction, or some other harm. It is the harm to the child and not the drug use itself that is the focus.
The Lento Law Firm Team has handled hundreds of DCP&P cases and knows how to protect your rights in DCP&P investigations and hearings. Whether the DCP&P is threatening to remove (or even if they have removed) your child or there is a criminal referral of a DCP&P investigation, the Lento Law Firm Team can help. Call the Lento Firm today at 888.535.3686, or contact us online.