Not all child abuse is the result of a caregiver intentionally causing harm to a child. When we hear the term “child abuse” or “child neglect,” we often think of situations where a parent or caregiver intentionally does something that injures a child or abandons their role as a caregiver and leaves the child in a situation where the child is likely to be harmed. But sometimes, a child is harmed or is placed in a dangerous situation because of a poor decision that a caregiver makes. And sometimes, the harm to the child is the result of an accident that is out of the control of the caregiver.
A 1999 case decided by the New Jersey Supreme Court, G.S. v. Department of Human Services, examined the differences between harm caused to a child by a caregiver's poor decisions and harm caused by accidental circumstances and offered guidance as to when a particular situation satisfies the legal definition of “child abuse” or “child neglect” under New Jersey law.
Over-Medication by a Caregiver
In the G.S. case considered by the New Jersey Supreme Court, a child with several disabilities (including a seizure disorder) was dropped off at a local respite care facility for mentally-challenged individuals by their mother. The mother provided a care facility employee with a bottle of medication for the child and told the employee that she had already “crushed” the medicine that was inside the bottle.
The care facility required parents to provide the facility with the proper dosages of medication for children left in the facility's care in a “properly labeled bottle.” In addition, care facility employees were supposed to check the bottle before giving the medication to the child to make sure the correct child was being given the right amount of medication at the proper time and by using the appropriate method.
After receiving the medication from the mother, the caregiver asked the mother how much of it to give to the child. The mother told her that the medication was “already crushed for” the child but didn't specify exactly how much of it to give. The label on the bottle said one-half a pill per dose; however, the pills in the bottle had been crushed up into smaller pieces, presumably to make it easier for the child to take.
The caregiver failed to clarify exactly how much of the medication to give the child. Instead, she gave the child the entire contents of the bottle – which contained 78 doses.
The child was semi-conscious when the mother arrived to pick him up. When she learned he had taken the entire bottle of medication, she rushed him to the hospital. He was treated in the ICU for a prescription medicine overdose. While he suffered no permanent harm, he was kept in the hospital for 48 hours before being discharged.
The Charge of Child Neglect
The incident was investigated by the local police department as well as New Jersey's Division of Youth & Family Services (DYFS) (now called the Division of Child Protection & Permanency). The police concluded that it was an “unfortunate accident” and closed the investigation. DYFS, however, found that the caregiver's actions “constituted neglect within the meaning of” the New Jersey statute defining child abuse and neglect. As a result, the caregiver's name would be placed on New Jersey's Central Registry, which maintains information about individuals found to have been responsible for child abuse or neglect in the state.
The caregiver appealed the DYFS findings, and the New Jersey Appellate Division held that the caregiver's conduct did not support a finding of neglect according to the statute. The DYFS appealed that decision, and the case went to the New Jersey Supreme Court, which ruled in DYFS's favor and against the caregiver.
New Jersey Definition of Child Abuse and Child Neglect
The start of the Supreme Court's analysis was the New Jersey statute that defines what an “abused or neglected child” means in New Jersey law.
The statute provides several definitions of what it means for a child to be an “abused or neglected child.” The parts of the statute that were relevant to the Supreme Court's case were as follows, with particularly important parts shown in italics:
An “abused or neglected child” is “a child less than 18 years of age whose parent or guardian” . . .
- (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ;
- (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ;
- (4) or 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, as herein defined, to exercise a minimum degree of care . . . (b) 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; or by any other acts of a similarly serious nature requiring the aid of the Court; . . . . “
The main issue before the New Jersey Supreme Court was whether the phrase “other than by accidental means” found in sections 1 and 2 of the statute also applied to section 4, even though it was not written as part of section 4. This is because the caregiver's behavior in giving the child the excessive amount of medicine was considered to be child neglect under section 4, even though the caregiver didn't intend to harm the child by doing so.
The Appellate Division had decided that the phrase “other than by accidental means” should be read into section 4 as though it were part of that section and that the caregiver's actions were accidental so that she had not committed child neglect.
The New Jersey Supreme Court's Decision
The Supreme Court reversed the decision of the Appellate Division. It found that the phrase “other than by accidental means” found in the definitions of child abuse and neglect in sections 1 and 2 of the statute should not be included as though it was also part of the definition stated in section 4. This meant that whether or not the medicine was given to the child by accident was irrelevant to determining whether the caregiver committed child neglect.
Instead, the question was whether the caregiver had failed to “exercise a minimum degree of care” by giving the child the entire bottle of medication without checking again with the child's parent, another member of the care facility staff, or a pharmacist. The Supreme Court had little difficulty finding that the caregiver did fail to exercise a minimum degree of care when she gave the child the medication without following the facility's medication procedures and without having a clear understanding of how much medication the child was supposed to receive.
What Does “Minimum Degree of Care” Mean in the Child Abuse Situation?
As part of its decision, the Supreme Court provided some guidance on what the phrase “failure to exercise a minimum degree of care” means in the child abuse or neglect statute. The Court ultimately decided “minimum degree of care” means “conduct that is grossly or wantonly negligent, but not necessarily intentional.”
It elaborated a bit on this, noting that willful or wanton conduct is “done with the knowledge that injury is likely to, or probably will, result.” In addition, “actions taken with reckless disregard for the consequences also may be wanton or willful.” One key factor is whether the person who commits the act does so intentionally – in other words, whether the person knows what they are doing when they do it. But they don't have to intend for bad consequences of that action to happen to a child in their care for their actions to constitute child abuse or neglect.
The Court acknowledged that “the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision.” That said, “the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others.” As a result, someone who acts in a willful and wanton manner “is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury.”
The Court's ultimate holding was that “a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child.” In the case before the Court, it held that there was sufficient evidence to support a finding that the caregiver met that standard when she failed to double-check the proper dosage of medicine to give the child before giving him one that was 78 times more than what he should have received.
What Is an “Accident” in the Context of Child Abuse or Neglect
The Supreme Court also provided guidance as to what an accident is since it was considering the phrase “other than by accidental means.” Essentially, where the events or actions that lead up to an injury are not intentional, and an injury results, the injury was caused “by accidental means.” But where someone acts deliberately and should have foreseen that their conduct “is likely to result in an injury,” then the injury isn't one that is “caused by accidental means.”
What This Means for Caregivers in New Jersey
While somewhat complicated, there is useful guidance provided by the G.S. case. In particular, caregivers need to consider carefully the potential that their actions have for causing harm to children under their care. In other words, even if you don't intend to injure a child, or place a child in danger, if you knowingly do something that could cause that to happen, you could be found to have committed child abuse or neglect.
The fact that this evaluation is less than clear – as even the Supreme Court notes – means that different people looking at the same set of facts might arrive at different conclusions. As a result, if you are investigated by the New Jersey Division of Child Protection & Permanency (DCPP), and they find that you committed abuse or neglect based on a “failure to exercise a minimum degree of care,” you should consider challenging the decision. Doing so is not something you should attempt on your own because, as even the New Jersey Supreme Court notes, the legal standards are complicated and can be difficult to apply.
You need the assistance of an experienced attorney who understands the New Jersey child protection laws and procedures, someone who can be with you and help protect your rights from the beginning of any investigation through any decision issued by the DCPP. The Lento Law Firm Team has years of experience helping parents, guardians, and caregivers involved in DCPP matters in New Jersey.
How the Lento Law Firm Team Can Help
The Lento Law Firm Team can help from the beginning of any DCPP investigation into you, your family, the caregivers you employ, or others involved in caring for your children. They have experience will all aspects of the DCPP process, from investigations to negotiations to hearings and appeals. In situations where criminal charges result, the Lento Law Firm Criminal Defense Team can provide an experienced and aggressive defense to those charges and help make sure your rights are respected.
If you've been notified that a child abuse or neglect claim has been filed against you and that you are being investigated by the DCPP, don't delay – call the Lento Law Firm today at 888.535.3686, or use our online contact form to set up a confidential consultation. Your family and your rights are important to you, and we can help you protect them!