NJ & CT News

NEW JERSEY

Abuse Finding Based on Hearsay and Uncorroborated Evidence Reversed

In April, New Jersey's Appellate Division found that a trial court incorrectly relied on uncorroborated and hearsay evidence to determine that the Division of Youth and Family Services (DYFS) had proved a father abused his 4-year-old son by burning him with an iron. The court in Division of Youth and Family Services v. D.J., A-4259-08, found plain error in Essex County Superior Court Judge Margaret Hayden's blanket acceptance of the testimony of a DYFS investigator, who said that the child's mother had nodded her head when asked by the investigator if the abuse charge against the father was true. The mother herself testified to the contrary, and there was objective evidence (a punched time card at the workplace) that the father was not home at the time the child was injured. The hearing court had also accepted as true heresay evidence in the medical record prepared by a non-testifying physician who saw the child following his injury. That doctor noted in his record that the boy was burned by his father with an iron, but it appeared he made his assessment of the cause of the injury based on the child's statements to him. Finding that the burning equated to excessive corporal punishment, Judge Hayden determined that both the father and mother abused and neglected their son, and their names were placed on the state child abuse registry. On appeal, Appellate Division Judges Edith Payne and Alexander Waugh Jr. found plain error in Judge Hayden's finding that the mother confirmed the boy's story by nodding her head, as there was no evidence beyond the DYFS investigator's testimony and the doctor's heresay statement to confirm that the father caused the boy's injuries.

Court Correctly Refuses to Order Post-Adoption Sibling Visitation

In DYFS v. N.J., A-3598-08T4, the Appellate Division recently held that although New Jersey's courts may order sibling visitation for siblings who have been placed in separate foster care placements, they generally may not order such visitation when children have been adopted. The case involved three siblings, two of whom were to be adopted by their foster care parent. DYFS was still trying to place the third, a child with severe disabilities, in an adoptive home. In the judgment for termination of parental rights and guardianship, the Family Part judge ordered continued visitation between this third child and his siblings until the siblings were adopted, but held that he did not have the authority to order post-adoption sibling visitation. Unhappy with this, the law guardian for the three children appealed, arguing the court should compel the prospective adoptive parents to continue visitation among the siblings as a function both of the court's parens patriae power and the children's constitutional right to associate with their siblings post-adoption. The Appellate Division upheld Family Court's order, noting that New Jersey's legislature, through the New Jersey Adoption Act, has expressed its disfavor of open adoptions. After children have been adopted, courts may use their parens patriae powers only when the child or children can be shown to be in danger or suffering severe mental or physical, as when the adoptive parents are unfit.

The court declined to reach the constitutional right-of-association argument, as the issue was not yet ripe; the children had not yet been adopted and the prospective adoptive parent of the two children had indicated that they would continue to visit their sibling after the adoption was complete.

CONNECTICUT

Lack of Evidence Means Ex-Wife's Debt Is Dischargeable

The U.S. Bankruptcy Court for the District of Connecticut has found that a woman's debt to her former in-laws is dischargeable in bankruptcy for lack of evidence to the contrary. The debtor in In re Rogers, Slip Copy, 2010 WL 1571196 (Bkrtcy.D.Conn., 2010), and her ex-husband had borrowed $100,000 from his parents. As part of the divorce, they each agreed, in writing, that they would continue to pay their respective 50% of that debt until it was paid off. In conjunction with her bankruptcy, the debtor sought a declaration that she would be freed from that debt. The defendants (the debtor's former husband and her mother-in-law) counterclaimed, asserting, inter alia, that pursuant to 11 U.S.C. ' 101(14A), the debt was nondischargable in bankruptcy because it was in the nature of a “dependent support obligation.”

The court turned to Detels v. Nero, 323 B.R. 33 (Bankr.D.Conn., 2005), which says that in divining the nature of an obligation imposed in a divorce decree, courts should consider: 1) the label given the obligation in the decree; 2) the form and placement of the obligation in the decree; 3) whether the obligation terminates on death, remarriage, etc.; 4) the economic disparity between the parties; 5) the length of the marriage; 6) the presence of minor children; 7) the age, employability, and educational level of the parties; and 8) the financial resources, actual or potential, of each spouse. Some of these factors favored the debtor and others the defendants, but the court ultimately rejected the defendants' counterclaim because the burden of evidence was on them, and they did not produce evidence as to several of the Detels factors.

NEW JERSEY

Abuse Finding Based on Hearsay and Uncorroborated Evidence Reversed

In April, New Jersey's Appellate Division found that a trial court incorrectly relied on uncorroborated and hearsay evidence to determine that the Division of Youth and Family Services (DYFS) had proved a father abused his 4-year-old son by burning him with an iron. The court in Division of Youth and Family Services v. D.J., A-4259-08, found plain error in Essex County Superior Court Judge Margaret Hayden's blanket acceptance of the testimony of a DYFS investigator, who said that the child's mother had nodded her head when asked by the investigator if the abuse charge against the father was true. The mother herself testified to the contrary, and there was objective evidence (a punched time card at the workplace) that the father was not home at the time the child was injured. The hearing court had also accepted as true heresay evidence in the medical record prepared by a non-testifying physician who saw the child following his injury. That doctor noted in his record that the boy was burned by his father with an iron, but it appeared he made his assessment of the cause of the injury based on the child's statements to him. Finding that the burning equated to excessive corporal punishment, Judge Hayden determined that both the father and mother abused and neglected their son, and their names were placed on the state child abuse registry. On appeal, Appellate Division Judges Edith Payne and Alexander Waugh Jr. found plain error in Judge Hayden's finding that the mother confirmed the boy's story by nodding her head, as there was no evidence beyond the DYFS investigator's testimony and the doctor's heresay statement to confirm that the father caused the boy's injuries.

Court Correctly Refuses to Order Post-Adoption Sibling Visitation

In DYFS v. N.J., A-3598-08T4, the Appellate Division recently held that although New Jersey's courts may order sibling visitation for siblings who have been placed in separate foster care placements, they generally may not order such visitation when children have been adopted. The case involved three siblings, two of whom were to be adopted by their foster care parent. DYFS was still trying to place the third, a child with severe disabilities, in an adoptive home. In the judgment for termination of parental rights and guardianship, the Family Part judge ordered continued visitation between this third child and his siblings until the siblings were adopted, but held that he did not have the authority to order post-adoption sibling visitation. Unhappy with this, the law guardian for the three children appealed, arguing the court should compel the prospective adoptive parents to continue visitation among the siblings as a function both of the court's parens patriae power and the children's constitutional right to associate with their siblings post-adoption. The Appellate Division upheld Family Court's order, noting that New Jersey's legislature, through the New Jersey Adoption Act, has expressed its disfavor of open adoptions. After children have been adopted, courts may use their parens patriae powers only when the child or children can be shown to be in danger or suffering severe mental or physical, as when the adoptive parents are unfit.

The court declined to reach the constitutional right-of-association argument, as the issue was not yet ripe; the children had not yet been adopted and the prospective adoptive parent of the two children had indicated that they would continue to visit their sibling after the adoption was complete.

CONNECTICUT

Lack of Evidence Means Ex-Wife's Debt Is Dischargeable

The U.S. Bankruptcy Court for the District of Connecticut has found that a woman's debt to her former in-laws is dischargeable in bankruptcy for lack of evidence to the contrary. The debtor in In re Rogers, Slip Copy, 2010 WL 1571196 (Bkrtcy.D.Conn., 2010), and her ex-husband had borrowed $100,000 from his parents. As part of the divorce, they each agreed, in writing, that they would continue to pay their respective 50% of that debt until it was paid off. In conjunction with her bankruptcy, the debtor sought a declaration that she would be freed from that debt. The defendants (the debtor's former husband and her mother-in-law) counterclaimed, asserting, inter alia, that pursuant to 11 U.S.C. ' 101(14A), the debt was nondischargable in bankruptcy because it was in the nature of a “dependent support obligation.”

The court turned to Detels v. Nero , 323 B.R. 33 (Bankr.D.Conn., 2005), which says that in divining the nature of an obligation imposed in a divorce decree, courts should consider: 1) the label given the obligation in the decree; 2) the form and placement of the obligation in the decree; 3) whether the obligation terminates on death, remarriage, etc.; 4) the economic disparity between the parties; 5) the length of the marriage; 6) the presence of minor children; 7) the age, employability, and educational level of the parties; and 8) the financial resources, actual or potential, of each spouse. Some of these factors favored the debtor and others the defendants, but the court ultimately rejected the defendants' counterclaim because the burden of evidence was on them, and they did not produce evidence as to several of the Detels factors.