Justices rule against child welfare division in case over parental fitness

Justice Lee Solomon's decision says courts cannot bar parents from seeing their children while depriving them of counsel by their dismissing cases. (Mary Iuvone for New Jersey Monitor)

The New Jersey Supreme Court ruled Wednesday that the state’s Family Courts cannot end cases weighing whether parents are fit to care for their children but leave in place restraints that bar those parents from seeing them.

By unanimous decision , the high court found any restraints must be dismissed along with Family Court cases weighing whether separating a child from their parents is in the child’s best interest. Failure to do so could leave parents without legal representation in cases that carry significant consequences, the court said.

“A case should be dismissed only when the court determines that neither services nor supervision are required to ensure the child’s health and safety,” Justice Lee Solomon wrote for the court.

The decision does not extend to a separate statute meant to guard against child abuse — it applies only to cases weighing whether a parent is fit to care for their child.

In the case before the court, a woman identified in filings as Jan was barred by court order from seeing her two children after the Division of Child Protection and Permanency filed a complaint alleging her untreated mental illness risked the health of the children.

Jan was later diagnosed with bipolar disorder with psychotic features, which can cause delusions and hallucinations in addition to the mania and depression typical of the illness.

In June 2021, about a year after the Family Court entered its order, the division moved to dismiss the complaint. Jan was not taking prescribed medication and had seen little improvement in her mental health over the course of a year, a case worker and psychologist testified.

The court dismissed the case but left restraints in place that barred Jan from any unsupervised contact with her children or from driving them in a car, a decision an appellate panel later upheld.

But the high court found dismissing Jan’s case deprived her of the right to state-appointed counsel, which is provided for by statute in such cases while they are ongoing, and would likely run afoul of due process guarantees in the New Jersey Constitution.

In addition, the Legislature placed checks on the Division of Child Protection and Permanency in statute, and “those cannot be ignored by the courts,” Solomon wrote.

The court added such cases should only be dismissed when a court finds the division’s services and the court’s supervision are no longer required to guarantee a child’s safety.

Separately, the justices recommended the state amend a portion of its state code that requires the division to make regular weekly to monthly visits to children under their care.

Such visits are “inherently disruptive to the family in general and the children in particular,” the court said, and state regulations should allow for visits every three to six months in cases where the division and the Family Court agree the division’s services are not needed.

The high court’s decision is the second to touch on the Division of Child Protection and Permanency in as many weeks.

Last week, the justices unanimously ruled that a woman identified as Beth had not abused or neglected her newborn by leaving her at the hospital two days after giving birth and not returning to claim her. The ruling overturned decisions by the lower courts that had sided with the Division of Child Protection and Permanency’s accusation of abuse and neglect.

The high court found the division could not show the child, called Mia, had actually been impaired or faced an imminent risk of the same. The justices were unconvinced by arguments that the mother’s absence created an imminent risk because no parent could consent to care for her in case of an emergency.

“It is highly implausible that in an emergency or life-threatening situation, the medical staff at a hospital would not provide necessary care to a child already at the hospital but instead attempt to find the parent that had absconded in order to get permission to administer care,” Justice Fabiana Pierre-Louis wrote for the court.

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