Supreme Court Defines Abuse

Things must be getting very bad for CPS that they will do anything to justify their position that they'll jump on any situation, to the extent if a child gets hurt because the parent blinked at the time the child was injured, then justify their position by saying the parent shouldn't have blinked.

This is like the case in (if I remember right (senior moment) Ohio where the parent was told she had to have a daycare license to "baby sit" the children not taking into consideration her driveway is a school pick up and drop off point.

'Home Alone' Bungle Did Not Rise to Level of Child Neglect, Court Says

Michael Booth All Articles

New Jersey Law Journal

August 08, 2011

A woman who inadvertently left her 4-year-old son in an empty house while she went out to dinner may not have been a model parent, but neither did she deserve to be pilloried on the state Child Abuse Registry, the New Jersey Supreme Court ruled on Monday.

"There exists a continuum between actions that are grossly negligent and those that are merely negligent," wrote Justice Virginia Long for the unanimous Court in DYFS v. T.B., A-21-10. "The parent's conduct must be evaluated in context based on the risks posed by the situation."

The incident occurred on March 25, 2007, a Sunday night. Between 7 and 7:30 p.m., the woman, given the pseudonym "Susan" in the opinion, and her son "John" returned to the Atlantic Highlands home they shared with her mother and stepfather, "Mary" and "Jim." Mary's car was in the driveway and she normally stayed home on Sunday nights. Susan also believed Mary would be home because she had been suffering from the flu.

Unbeknownst to Susan, however, Mary and Jim had gone on an impromptu trip into New York and were not at home. Susan put John to bed and then went out to dinner with a friend. John woke up at around 9 and, realizing he was home alone, crossed the street to a neighbor's house. The neighbor then went to a neighbor, who was a police officer.

Susan returned home at around 9:30 and was questioned by the police. They did not charge her but did notify the Division of Youth and Family Services, which, despite a ruling by an administrative law judge, later made the finding of neglect, saying Susan violated N.J.S.A. 9:6-8.1(c)(4)(b). DYFS then listed her name on the Child Abuse Registry.

"It is by mere fortunate happenstance that no actual harm befell the young child," DYFS said in its finding.

An Appellate Division panel affirmed DYFS' finding, and Susan appealed to the Supreme Court.

Long said the primary point of contention was the interpretation of the phrase "failure … to exercise a minimum degree of care" in the statute.

Though Long said this was a "close case," especially since she did not actually check to see if her mother was at home before she left for dinner, it appears that Susan acted only negligently.

"In other words, every failure to perform a cautionary act is not abuse or neglect," Long said. "When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the statute.

"A parent who looks away for a moment in a playground may be negligent, but that is not what the Legislature intended to interdict by the 'failure … to exercise a minimum degree of care' language in section (c)(4)(b)," she said. "[A]lthough Susan was plainly negligent, she was not grossly negligent or reckless in the actions that led us here."

The Court ordered DYFS to remove the woman's name from the registry.

Susan’s lawyer, Red Bank solo Lynn Staufenberg, says the ruling “means that parents do make mistakes” and can’t be held to a standard of perfection.” She adds that this set of facts is not the type that the statute was meant to prevent.

Mary McManus-Smith, an attorney with amicus Legal Services of New Jersey, agrees. “The Court made it very clear that not every parenting mistake is abuse or neglect,” she says.

Deputy Public Defender T. Gary Mitchell, who filed a brief on behalf of the Office of Parental Representation, says “New Jersey families can breathe easier by this decision, which reestablishes a balanced perspective in child welfare law in New Jersey that is at once fully protective of the safety of children and equally prudent in ensuring that families are not needlessly and punitively second-guessed after the fact by the state.”

Lee Moore, a spokesman for the Attorney General’s Office, which represented DYFS, says officials there would have no comment on the ruling.