The state Supreme Court on Wednesday drew a line against invoking Title 9, New Jersey’s child abuse statute, in custody cases where there is no finding of abuse or neglect.
Rather judges must look to Title 30, with its different standards and procedural safeguards, to determine if steps must be taken, including removal, to ensure the safety of at-risk children, the court held in DYFS v. I.S., A-81-11.
The case involves a mother from Camden County, identified only I.S., whose twin 12-year-old daughters, N.S. and S.S., suffer from severe psychological problems. I.S. and the children’s father, E.S., are divorced.
In 2007, I.S. admitted to the Division of Youth and Family Services, now the Division of Child Protection and Permanency, that she was overwhelmed and needed help, and that the children would be better off, at least temporarily, in a residential facility where they could receive treatment.
However, after she said she could not afford to pay for residential treatment, DFYS filed complaints seeking custody of the children under both Title 9 and Title 30, which is common.
A judge found there was no abuse or neglect, but nevertheless used the authority under Title 9 to place the children in a residential facility. Under the rules of Title 30, the judge made periodic reviews of the children’s status, but never dismissed the Title 9 complaint.
In 2010, N.S. was returned to the mother, while S.S. went to live with the father, who had requested custody for that child.
The Appellate Division affirmed, and I.S. appealed to the Supreme Court. She argued that the trial judge and the Appellate Division erred in not dismissing the Title 9 complaint, which leaves open the possibility that she could be listed in the child abuse registry, even though there had been no finding of abuse or neglect.
While the unanimous court affirmed the final determination of which parent had custody over which child, it agreed with her that the Title 9 complaint should have been dismissed years ago, and that continued state supervision should have been carried out under the standards of Title 30.
"In this matter, we clarify that when there is no finding of abuse or neglect, N.J.S.A. 9:6-8.50(c) does not permit the continued, indefinite exercise of jurisdiction by the family court," Justice Jaynee LaVecchia wrote. "The Title 9 action must be dismissed."
The relevant portion of that statute says: "If facts sufficient to sustain the complaint under this act are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal."
"In this instance," LaVecchia said, "we need go no further than the plain language to glean the legislative intent of the provision in question. The statute reflects a disinclination to keep an open-ended abuse and neglect action hanging over a parent’s head."
After there was no finding of abuse or neglect, the trial judge should have turned to Title 30, which allows the division to intervene and offer assistance or seek custody if a parent is alleged to be "unfit to be entrusted" with the care of his or her children.
Under Title 30, court orders must be reviewed every six months and parents whose children have been removed are allowed to introduce evidence of changed circumstances that could lead to having the children returned to them.
"With N.J.S.A. 30:4C-12, the Legislature cut a broader swath than in Title 9. It authorized services to children who have not been abused or neglected … but whose needs may be too complex and beyond a parent’s or parents’ ability to work through without the Division extending minimal supervision, or more intrusive involvement, coupled with services until that is no longer necessary," LaVecchia said.
"Importantly, Section 12 is less damaging to parents in that the child abuse registry … is not implicated," she said. "Moreover, it is temporary and must periodically be reviewed."
Christopher Porrino, the director of the Division of Law, which represented DYFS, said, "This case ensures the division’s ability to protect children, even when the label ‘abuse and neglect’ does not fit the circumstances. The court recognized there are separate statutory tools to support children’s safety, and endorsed the need and right of the division to obtain court assistance based on the best interests of children."
Deputy Public Defender T. Gary Mitchell, who represented I.S., did not respond to a request for comment.
Legal Services of New Jersey and the Statewide Parent Advocacy Network, an advocacy group for parents of special-needs children, participated as amici.
"The ruling provides substantive standards and procedures courts should follow," says Mary McManus-Smith, who argued for LSNJ. "It’s important because they are distinct statutes with distinct standards.
"Everybody likes to know what the rules are."
SPAN’s lawyer, Sean Marotta, said in a statement that the ruling was a mixed one for parents such as I.S. He says that it is good that the division’s rights under Title 30 are limited.
"We are disappointed, however, that the court allowed the division to take custody of two girls simply because their mother could not afford residential treatment for them," says Marotta, of Hogan Lovells in Washington, D.C. "In the wake of this decision, parents in crisis will have to think twice before turning to the division for help."