New Jersey Supreme Court Gets One Right — Barely

August 24, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Last Friday, my wife and I were driving in a large city in Texas. Over one of the freeways was a sign saying “Amber Alert.” It gave the make, model and color of a car along with its license number and said that the Amber Alert was for the city of Corpus Christi, some 250 miles away. Interestingly enough, it had been only a few days previously that we’d seen a similar sign with the message “Never leave a child alone in a car.”

Now, regarding the Amber Alert, I remarked to my wife that my guess was that a parent in Corpus Christi had either withheld a child from its non-custodial parent or the non-custodial parent had kept a child beyond his/her normal visitation time. Its being Friday, I figured it was the former and sure enough, a quick review of the next day’s Corpus Christi newspaper revealed that the child was with its parent and the Amber Alert had been lifted. Keep in mind that everyone to a radius of at least 250 miles had been “alerted.” I wouldn’t be surprised to learn that similar signs throughout the state had shown the same alert. Of course the child had been in no danger and, in any event, how likely was it that random motorists hundreds of miles away would have been able to do something about it even if there had been some risk. But authorities in the Lone Star State assumed that everyone needed to know about the Amber Alert regardless.

Sometimes it occurs to me that the main purpose behind the decades-long scare about children’s safety has more to do with maintaining a heightened sense of fear among the general public than it does with any good that may come of it. Do Texas authorities really believe that a custodial parent’s failure to deliver a child to the non-custodial parent at the precise hour called for a state wide alert? Or is there more to it than that? Does it have more to do with keeping parents and others in a constant state of anxiety about children’s safety?

If so, it’s hard not to conclude that it’s worked. After all, the Administration for Children and Families’ last report indicated that 80% of reports of abuse or neglect to state child welfare agencies involved neither. Indeed, a hefty percentage of those didn’t even warrant investigation by state authorities. Over 3.2 million reports were made, but only 686,000 were actually cases of abuse or neglect. That’s a lot of person-hours wasted by CPS agencies around the country, time that could have been better spent dealing with cases that actually needed attention.

So this case is, to me at least, bittersweet (, 8/20/15). It comes to the right conclusion while leaving intact all the worst assumptions about children’s safety.

A Garden State mother went to a store with her 19-month-old daughter sleeping in her car seat in the back of the car. Rather than wake her, the mother went into the store for between five and 10 minutes, leaving the engine running and the windows slightly open. When she came out of the store, she was greeted by the police who promptly arrested her for child neglect.

The incident happened in 2009, when the woman left her sleeping toddler strapped in a car seat in her locked car with the engine running and the windows cracked while she shopped at the Middlesex Mall in South Plainfield for five or 10 minutes, according to court papers. The sky was overcast and the temperature was 55 degrees, the papers say. 

When the woman returned to the vehicle, she was arrested by police.

The mother said she did not want to wake her daughter, the documents say. Later in the day, a caseworker visited the woman’s home — which she shared with her husband and four children — and found no issues, according to the papers. 

But the state Division of Child Protection and Permanency filed a complaint against the woman and her husband, seeking care and supervision of all four of their children.

E.D.-O. appealed and requested an administrative hearing, but she was denied on multiple occasions.

That’s right, despite the child having suffered no harm and the home being free from defects or evidence of child neglect or abuse, the DCPP filed a complaint. Just to gild the lily, it did so against the child’s father too. How caseworkers figured he had neglected his child, the article doesn’t explain nor can I.

But so egregious did the DCPP consider E.D.-O’s behavior that it denied her a hearing on the matter. Apparently it can do that in cases in which parental behavior is so obviously abusive that a hearing isn’t needed. More astonishingly still, an appellate court agreed. But, in a rare victory for sanity, the state’s highest court ruled that E.D.-O is entitled to a hearing on the question of neglect.

Leaving a young child alone in a vehicle is not automatically abuse or neglect, the state Supreme Court ruled Thursday in the case of a New Jersey woman who was arrested for shopping while her 19-month-old daughter slept in her car.

In a unanimous 7-0 decision, New Jersey’s highest court reversed an appeals court ruling last year that found the woman guilty of child endangerment because even though her daughter wasn’t harmed, simply leaving a child alone in a vehicle — even briefly — was enough to constitute abuse or neglect.

Keep in mind that E.D.-O. is anything but off the hook. The only thing she’s won is the right to try to convince an Administrative Law Judge that she didn’t neglect her child. And, if the ruling of the appellate court is any indication, that may prove to be a hard row to hoe. In a time in which merely leaving a child alone in a car for a few minutes can be deemed neglect per se by supposedly intelligent judges, I’d say her case is anything but a slam dunk. Here’s the type of “reasoning” E.D.-O. may well run into.

"A parent invites substantial peril when leaving a child of such tender years alone in a motor vehicle that is out of the parent’s sight, no matter how briefly," Judge Clarkson Fisher Jr. wrote for the appeals court panel last January.

Fisher cited the risk of "car theft or kidnapping" and the possibility that "on a hot day, the temperature inside a motor vehicle can quickly spike to dangerously high levels, just as it may rapidly and precipitously dip on a cold night."

It’s true. Anything can happen at any time. A plane could fall out of the sky; a sinkhole could open up beneath us; lightning might strike. It’s undeniable that no one is absolutely safe anywhere, anytime. But how many cars get stolen from a very public place in broad daylight? Some tiny fraction of a percent. How about kidnapping by a stranger? It’s vanishingly rare. But that didn’t stop the appellate court from simply imagining danger and agreeing with this action by the DCPP:

The Division of Child Protection placed E.D.-O. on a permanent registry of child abusers even though her daughter was not harmed and social workers found no issues at the family’s home, court papers say.

We can all imagine the worst. Again, no one is 100% safe no matter what precautions they take. What we can do is view parental behavior in the context of reality. That means weighing — as essentially every parent does — the actual risks and acting accordingly. Unquestionably, E.D.-O. did that and her decision was correct. Her daughter wasn’t harmed. She left the girl, for a bit over five minutes, asleep with the windows cracked on a 55-degree day. That. Is. Not. Neglect.

And, as I always point out in cases like these, with caseworkers hard about the task of abusing a perfectly fit parent, were there other children in the area who needed their help? Were there other kids being harmed or ignored? I wouldn’t be surprised. But it seems that every time a child whom caseworkers know to be at risk is harmed or killed, we hear the cry “Our budget’s too tight! We can’t afford to hire enough caseworkers.” If there were fewer caseworkers harassing the likes of E.D.-O, there’d be more to attend to the kids who need them.


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