What Does "Imminent Harm" Mean in DCPP Cases?

The New Jersey Department of Children and Families is responsible for ensuring the well-being of children in the state. In particular, its Child Protection and Permanency agency, sometimes referred to as DCPP, has the authority under state law to investigate reports of child abuse and child neglect. Actual abuse or neglect doesn't have to occur for DCPP to become involved; it has the power to act if a child is in "imminent" danger of becoming harmed.

If someone has made an allegation that your child is being abused or neglected, or is in imminent danger of being abused or neglected, then in most cases, it will be DCPP that is responsible for looking into the allegation and where the situation is substantiated, taking necessary steps to protect your child.

If you have received a notice that a DCPP investigator is coming to your home, you may be confused, worried, and upset, particularly when you know that the abuse or neglect allegations are unfounded. Unfortunately, it's not unusual for people who are involved in disputes, particularly ones relating to divorce, separation, custody, and visitation, to make unfounded abuse allegations in an effort to leverage the DCPP investigation in their favor. In addition to being very unfair to the accused parent or guardian, this is also unfair to the children who are caught in the middle and who will find their home lives being investigated by a DCPP case worker.

Compounding this is the possibility that any DCPP investigation could lead to a criminal referral. While DCPP investigations and child welfare proceedings are not criminal matters, it's not unusual for local authorities to become involved in cases where the DCPP believes it has substantiated reports of child abuse or neglect. This can include situations where actual abuse or neglect didn't occur, but the DCPP determines that a child was placed in "imminent danger" of being harmed as a result of a parent's conduct.

For all of these reasons, if you have been notified that the DCPP is investigating a claim of abuse or neglect against you, you need the help of an experienced attorney who understands both the law that governs child welfare proceedings and the criminal laws that can apply in these kinds of situations. How you respond to the DCPP investigation can make all the difference both to your continued custody of your child or children and to the possibility that you will face criminal charges related to the DCPP issues. Joseph D. Lento and the Lento Law Firm Team have years of experience helping parents and other caregivers who are under DCPP investigation in New Jersey, as well as defending parents and others charged with crimes in the state. They can help you understand what's going on and how best to respond to DCPP interviews and requests for information.

Abuse or Neglect Doesn't Have to Happen for DCPP to Get Involved

DCPP gets involved in cases where a report is made that a child is being abused or neglected. But the abuse or neglect doesn't have to have happened already in order for DCPP to be able to investigate and act. The legal definition of "abused or neglected child" in New Jersey makes this clear.

Under New Jersey law, an "abused or neglected child" means a child under the age of 18 "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, as herein defined, to exercise a minimum degree of care." In other words, the damage doesn't have to have been inflicted on the child for the child to be considered abused or neglected; it's enough if there is an imminent possibility of harm taking place.

The type of imminent harm that the statute protects against is also defined. In particular, it's harm that results or may result because the parent or guardian fails to provide adequate "food, clothing, shelter, education, medical or surgical care" even though the parent or guardian is financially able to do so. In addition, imminent harm may exist where the parent or guardian does not properly supervise the child and puts the child at "substantial risk" of being harmed.

Not All Potential Harm Is Imminent Harm

New Jersey courts have sometimes wrestled with the concept of when the actions of a parent or guardian that have not harmed a child may still rise to the level of imminent danger or imminent harm that allows the DCPP to intervene in the family. Where abuse or neglect, or imminent abuse or neglect, is substantiated, DCPP can remove children from the parent's home and place them with another caregiver, such as a family member or a foster home.

One thing is clear – courts (and the DCPP) don't need to wait until children are harmed before they can act to protect the children. In situations where there has been no actual harm to the children, courts will focus on whether there is a threat of harm to them. The problem is that this is a case-by-case type of analysis. Every situation is different. Parents and guardians have different life situations, as do children. In addition, the facts that give rise to a particular complaint of imminent harm are almost never the same. Basically, not every situation that could lead to the possibility of imminent harm to the child is one that will support DCPP intervention. Because courts will analyze the situation on a case-by-case basis, DCPP investigators are supposed to do so as well. It's when the DCPP fails to apply this case-by-case analysis properly that it can find that there is "imminent danger" of harm to the children when in fact, that is not the case.

Examples of Cases Where Courts Disagreed with DCPP

In one case, for example, a mother tested positive for cocaine when she checked into the hospital to give birth, and her newborn child showed evidence of cocaine metabolite in its system. This was cited by DCPP for its claim that the child was in "imminent danger" or faced "a substantial risk of harm," even though the child was otherwise healthy and was discharged from the hospital two days after being born.

The New Jersey Supreme Court disagreed with the DCPP. It said that the evidence of the past cocaine use by the mother, combined with the fact that her child was healthy despite the presence of cocaine metabolites, was not enough to support the DCPP's claim that there was an imminent risk of future harm to the child. The Court stated that "The proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone."

In another case, the Court held that the fact that the mother had left her child in the care of her 16-year-old son while the mother slept did not support a finding that she was grossly negligent, despite injuries that occurred when her child fell off of a bed while in the son's care. In addition, the simple fact that the mother delayed taking the child to the ER after the injury did not create "an imminent risk of substantial harm" to the child, where the mother testified that "she had no reason to think that" the child's arm was broken and DCPP didn't refute that testimony.

In a third case, a mother left her child sleeping in a locked car while she went into an adjacent store to buy party supplies for one of her other children. "She parked about 150 feet, or ten parking spaces, away from the store, left the engine running, opened both front windows slightly, and locked the doors." She was arrested for endangering the welfare of her child, and on the basis of that incident, the DCPP sought to take her four children away from the mother and her husband.

The New Jersey Supreme Court disagreed. It pointed out that the child was not harmed during the incident that triggered the DCPP's attempt to remove the children from the parents and noted that where the child was not harmed, the DCPP must show that there is "some form" of threatened harm to the child. That has to be done "on a case-by-case basis" by the DCPP. The DCPP is not supposed to determine that "certain conduct poses an imminent risk of physical, emotional, or mental harm to a child without regard to the circumstances at the time of the conduct."

The Court noted that it appeared as though the DCPP was applying an across-the-board rule that any situation where a parent left a child unattended in a motor vehicle meant that the parent "failed to exercise a minimum degree of care that places the child in imminent danger of impairing that child's physical, emotional, or mental well-being." It pointed out that other cases had identified "seven circumstances that should be considered in evaluating a parent's conduct in such situations" and that DCPP had failed to do so.

Cases Where Courts Agreed With DCPP's Imminent Harm Finding

Of course, in some cases, the DCPP is able to support its position that the parent placed their child in imminent danger of harm such that the parent should relinquish custody.

In one situation, a parent was refusing to cooperate with police officers who were called to investigate an earlier gunshot that did not injure anyone. The Court found that the parent placed the child "at substantial risk of imminent harm" when he confronted the officers while holding the two-month-old child in one hand while holding a knife in the other – even though he was not "menacing" the child with the knife or otherwise threatening to harm the child.

In another case, a drug-dependent mother gave birth to a child who "was born positive for opiates and suffered withdrawal symptoms requiring hospitalization." In that case, the mother's ongoing struggles with drug addiction satisfied both the standard of showing actual abuse or neglect as well as the potential for imminent continued danger to the child.

Where two parents had a long history of referrals to DCPP, were both alcohol-dependent, had been in a physical altercation with each other, and where one left their infant under the care of the other while the other was under the influence of drugs, the child was in imminent danger sufficient to support the DCPP's decision to remove the child from the couple's custody.

These cases show how similar basic facts (such as a mother testing positive for drugs and giving birth to a child who has drugs in its system) can result in completely different outcomes, depending on other factors that the DCPP is supposed to take into consideration when making a decision about whether to remove a child from a parent's care.

What Imminent Harm Means Depends on the Situation

As the New Jersey Supreme Court noted in the case of the child left sleeping in the car, when a parent is accused of placing their child in imminent danger of harm, the parent should have "the opportunity to advance all of the circumstances surrounding the event." In that case, where the question was whether her child was in imminent danger because of being left unsupervised in the mother's car, the "circumstances include but are not limited to the actual distance between the vehicle and the store, her ability to keep the vehicle in view, the length of time she left the child unattended, the number of vehicles and persons in the area, the ability to gain access to the interior of the car, and the temperature inside and outside the car."

Of course, other situations where the DCPP claims that a child was placed in imminent harm would require a different analysis, one that focuses on the particular facts of that particular situation. Where the DCPP fails to make this kind of focused analysis and instead relies on an across-the-board rule to find imminent harm sufficient to justify DCPP taking custody of a child away from a parent, you need the help of an experienced attorney who understands the laws relating to the DCPP and can fight for your rights. DCPP procedures are complicated, and the laws that they use to justify removing a child from a parent's care and custody are not always clear. In short, DCPP doesn't always get it right.

Joseph D. Lento and the Lento Law Firm Team Can Help

If you've been contacted by the DCPP because an abuse or neglect report has been filed against you, you need the help of an experienced attorney and firm that understand New Jersey's child welfare laws and the types of criminal charges that can be filed in situations where the DCPP substantiates abuse or neglect. This is not a situation you should face alone; the DCPP caseworker may be friendly, but they are not your friend. Their job is to learn as much as they can about you and your family and to decide whether your child or children should remain in your care.

Joseph D. Lento and the Lento Law Firm Team have years of experience helping parents and guardians through these very tense, invasive, and difficult DCPP investigations. They understand how important your children are to you, and they also know how to help you protect your rights when dealing with DCPP investigators. Even if the DCPP has decided to remove your child or children from your custody, this decision can often be appealed and the Lento Law Firm Team can help. And if there is a criminal referral made as a result of a DCPP investigation, Joseph D. Lento and his Criminal Defense Team can vigorously defend you against the charges and make sure your rights are protected.

Call Joseph D. Lento today at 888.535.3686, or reach out to the Criminal Defense Team online to set up a confidential consultation. This is not the kind of situation you want to face alone.

​​​Contact The Lento Law Firm Today

When it comes to criminal defense cases, you need the right person in your corner. To learn more about how Mr. Lento can help you, call the Lento Law Firm today at 888-535-3686. or contact him online.

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