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A Parent’s Substance Problem Won’t Always End In Losing Her/His Kids

by | Nov 24, 2016 | Uncategorized


On October 31, a New Jersey Appeals Court reversed a lower court decision which said that a drug/alcohol addicted mother (E.A.) violated the New Jersey child abuse/neglect law. As a result of that decision, the mother was included in the Central Registry by Division of Child Protection & Permanency (DCP), and lost custody of her two young children, ages five and six.

In May 2011, DCP responded to a report that one child was found alone in the street. E.A. tested positive for opiates and she was provided substance abuse services. Several months later, E.A. reported to the DCP office inebriated and smelling of alcohol. She later conceded that she had abused her children by being intoxicated when the children were in her care and custody. But there was no proof that she harmed her children or put them in a potentially harmful situation.

In 2013, DCP initiated termination of parental rights proceedings because E.A. failed to complete her substance abuse treatment program. She decided to start complying with the program and tested negative on numerous random urine screens. While she was reunited with her children in October of that year, she was still required to remain under the supervision of DCP by participating in an outpatient program. Legal custody was also transferred back a few months later. She again drank alcohol a month later and was again placed in an outpatient program.

In April 2014, E.A. showed up to DCP for a random screen, where she met with a supervisor and told him that while the children were with their grandparents over the weekend, she used opiates, by saying that she sniffed heroin and drank alcohol. The screen confirmed this. DCP then removed the children and a judge’s decision that there was child abuse – on the sole basis that defendant used heroin – even though the children were not in her care at that time.

At the hearing, DCP did not offer a single piece of evidence to show that E.A. was under the influence “while caring for the children.” The judge, in an oral opinion, nonetheless said that she had in fact abused her children because “there’s a substantial risk of harm to a child if a person uses illicit substances, such as heroin, which . . .can be deadly. . . She can overdose and die in front of the children and there can be a fire. She could . . .take her children out for a ride in the car and get into an accident because she’s not sober.” Defendant returned to the outpatient program and tested negative during urine screens. She gave birth to another child in February 2015.

The Appeals Court disagreed with the lower courts’ reasoning, because it was based on an assumption. There was only one witness presented by DCP and there was no other evidence to show that the heroin use was going on while the children were in her care.

Generally, under New Jersey law, a child is considered abused/neglected if the parent creates a situation where, while in his or her care, a child is subjected to imminent or actual danger. A parent must fail to exercise a minimum degree of care (See N.J.S.A. 9:6-8.21(c)(4)(b)). A parent’s “conduct that is grossly negligent because it is willful or wanton… but not necessarily intentional” will show that failure to exercise the minimum degree of care.

The lower court judge’s decision was overturned because DCP failed to present evidence or testimony that described E.A.’s drug usage habit at the then-current time. The fact that she admitted to the heroin use was not enough to show abuse. “Even if the Division had proved the children were present when defendant was impaired, that would not suffice.” It also failed to prove how the children’s physical, mental or emotional conditions were affected by that alleged drug habit. Because of those deficiencies, it was not right that E.A. was found to have placed her children in imminent danger or created a significant risk of harm. Therefore, it was ordered E.A.’s name be removed from the DCP registry. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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