Usage of drugs by parents not enough to sustain a finding of abuse or neglect
Although the statutory definition of an “abused or neglected child” under N.J.S.A. 9:6-8.21(c), is divided into seven subparts, the Superior Court of New Jersey, Appellate Division solely relied upon 9:6-8.21(c)(4), which considers the child to be abused or neglected, if his:
“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 . . . 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. . . .”
N.J. Div. of Child Prot. & Permanency v. G.S., Docket No. A-5216-13T1, 2016 N.J. Super. Unpub. LEXIS 168 at *11.
In order to prove child neglect and abuse, courts need not wait for harm to occur, but a proof of imminent danger or a substantial risk of harm to a child by preponderance of the service (citing N.J. Dep’t of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015)) is sufficient. It is also required to find that the parent failed to exercise a minimum degree of care under N.J.S.A. § 9:6-8.21(c)(4)(b). (Id. at 179).
The parent’s failure to exercise a minimum degree of care is fact sensitive and must be resolved on a case-by-case basis. (citing Dep’t of Children & Families v. T.B., 207 N.J. 294, 309 (2011)).
The “2013 National Survey on Drug Use and Health” reported a regular use of illicit drugs on a monthly basis by millions of Americans, which includes more than 20% of adults aged between 18 and 25, and roughly 15% of those between 26 and 34, the prime child-rearing age.
The courts are not required to wait to act until and unless a child is actually irreparably impaired by parental inattention or neglect. It is necessary to showcase imminent danger or a substantial risk of harm to a child by a preponderance of the evidence.
However, use of marijuana on merely one occasion in the child’s absence did not establish imminent danger or substantial risk of harm to the child. New Jersey Div. of Child Protection & Permanency v. R.W., 438 N.J. Super. 462 (2014).
Besides the proof of imminent danger or significant risk, “minimum degree of care [would show] a parent’s conduct [to] be grossly negligent or reckless. In contrast, a parent's negligent conduct is not sufficient to justify a finding of abuse or neglect under N.J.S.A. § 9:6-8.21(c)(4)(b). A civil prosecution under N.J.S.A. § 9:6-8.21(c)(4)(b) also requires proof that a parent unreasonably inflicted harm. However, it follows that a parent who causes harm to a child by grossly negligent or reckless conduct has acted unreasonably.” New Jersey Div. of Child Protection and Permanency v. Y.N., 220 N.J. 165 (2014). Accordingly, parental fault could not be established where the child’s impairment resulted from the mother’s participation in a medically prescribed methadone maintenance program, and no other evidence of such fault was presented. Id. at 183-86.
This brings in the courts to conclude that in the usage of drugs alone cannot be regarded as sufficient evidence for abuse or neglect as well stated in New Jersey Dept. of Children and Families, Div. of Youth and Family Services v. A.L., 213 N.J. 1 (2013):
“Judges . . . cannot fill in missing information on their own or take judicial notice of harm."