NJ & CT News

NEW JERSEY

Occasional Slaps and Lack of Heat Do Not Abuse and Neglect Make

In New Jersey Division of Youth and Family Services v. P.W.R., — A.3d —-, 2011 WL 222125, N.J., Jan. 26, 2011 (NO. A-79 SEPT.TERM 2009), New Jersey's Supreme Court recently reversed a trial court's finding that a woman had neglected and abused her stepdaughter within the meaning of Title IX, because her actions did not rise to the level required for such finding. The stepmother had slapped the 16-year-old girl in question on more than one occasion, but she left no marks or bruises. When a representative of the Department of Youth and Family Services (DYFS) visited the home, she found the house cold. The parents explained that the oil heater was broken and that both of them were unemployed and presumably could not afford to fix it. Space heaters were in use, however. DYFS removed the child from the home because of the lack of heat and because the child said she was fearful of returning home. DYFS concluded that the allegations of physical abuse were unfounded, but found substantiated the allegations of neglect due to the lack of heat in the home and the girl's fear of returning there. Though it ultimately determined the abuse allegation was unsubstantiated, DYFS filed a complaint for custody. After the preliminary hearing, the court placed the child in DYFS's custody, finding, inter alia, that her removal was appropriate due to the lack of central heating and the history of slapping. On appeal, the placement was reversed because DYFS did not meet the proof requirements for a showing of abuse under Title Nine ' the facial slapping left no scars, bruises or other evidence of physical injuries. “Although not approving of such behavior,” said the appellate court, “an occasional slap in the face of a teenager as discipline, with no resulting bruising or marks, does not constitute excessive corporal punishment under the statute.” Also, a parent's failure to provide central heating, with no evidence that she is financially capable but willfully refuses to do so, is not evidence of neglect, particularly if space heaters are in use.

CONNECTICUT

Party to Valid Surrogacy Agreement May Be Deemed a Parent

In a matter of first impression, the Supreme Court of Connecticut, in Raftopol v. Ramey, — A.3d —-, 2011 WL 169409 (Conn. 2011), affirmed a trial court's order of legal parentage, determining that an intended parent who is a party to a valid gestational agreement with a birth mother may become a parent without first adopting the child. The case involved an unmarried same-sex couple. They contracted with a woman to have her implanted with embryos, two of which she carried to their births. The embryos were created with third-party donated eggs and the sperm of one of the men in the couple. Prior to the birth of the children, the couple sought a declaratory judgment that the non'biologically-related man, Shawn Hargon, was the parent of the children, along with their biological father, and that a replacement birth certificate naming him as a parent should be issued in accordance with General Statutes ' 7-48a. (Section 7-48a authorizes the issuance of replacement birth certificate soon after a birth if the child is the product of a gestational agreement.)

The department of public health opposed, arguing that the court lacked jurisdiction to confer parentage under Connecticut law unless that person was a biological parent, had the child through artificial insemination. or adopted the child. The trial court determined that Hargon was a parent and ordered the department to issue birth certificates in accordance with that order. On appeal to the Supreme Court of Connecticut, the court observed that in matters of this type it would be preferable to leave the question to the legislature. However, in the instant matter, the law as written could conceivably have left the children without any legal parent at all, a conclusion, the court reasoned, “which rationally could not have been the legislature's intent.” Absent guidance from the statutes, the Supreme Court interpreted ' 7-48a to allow an intended parent “who is a party to a valid gestational agreement to become a parent without first adopting the children, without respect to that intended parent's genetic relationship to the children.” Thus, the lower court did not err in determining that Horgon was a legal parent and ordering the department to issue a birth certificate naming him as such.

NEW JERSEY

Occasional Slaps and Lack of Heat Do Not Abuse and Neglect Make

In New Jersey Division of Youth and Family Services v. P.W.R., — A.3d —-, 2011 WL 222125, N.J., Jan. 26, 2011 (NO. A-79 SEPT.TERM 2009), New Jersey's Supreme Court recently reversed a trial court's finding that a woman had neglected and abused her stepdaughter within the meaning of Title IX, because her actions did not rise to the level required for such finding. The stepmother had slapped the 16-year-old girl in question on more than one occasion, but she left no marks or bruises. When a representative of the Department of Youth and Family Services (DYFS) visited the home, she found the house cold. The parents explained that the oil heater was broken and that both of them were unemployed and presumably could not afford to fix it. Space heaters were in use, however. DYFS removed the child from the home because of the lack of heat and because the child said she was fearful of returning home. DYFS concluded that the allegations of physical abuse were unfounded, but found substantiated the allegations of neglect due to the lack of heat in the home and the girl's fear of returning there. Though it ultimately determined the abuse allegation was unsubstantiated, DYFS filed a complaint for custody. After the preliminary hearing, the court placed the child in DYFS's custody, finding, inter alia, that her removal was appropriate due to the lack of central heating and the history of slapping. On appeal, the placement was reversed because DYFS did not meet the proof requirements for a showing of abuse under Title Nine ' the facial slapping left no scars, bruises or other evidence of physical injuries. “Although not approving of such behavior,” said the appellate court, “an occasional slap in the face of a teenager as discipline, with no resulting bruising or marks, does not constitute excessive corporal punishment under the statute.” Also, a parent's failure to provide central heating, with no evidence that she is financially capable but willfully refuses to do so, is not evidence of neglect, particularly if space heaters are in use.

CONNECTICUT

Party to Valid Surrogacy Agreement May Be Deemed a Parent

In a matter of first impression, the Supreme Court of Connecticut, in Raftopol v. Ramey, — A.3d —-, 2011 WL 169409 (Conn. 2011), affirmed a trial court's order of legal parentage, determining that an intended parent who is a party to a valid gestational agreement with a birth mother may become a parent without first adopting the child. The case involved an unmarried same-sex couple. They contracted with a woman to have her implanted with embryos, two of which she carried to their births. The embryos were created with third-party donated eggs and the sperm of one of the men in the couple. Prior to the birth of the children, the couple sought a declaratory judgment that the non'biologically-related man, Shawn Hargon, was the parent of the children, along with their biological father, and that a replacement birth certificate naming him as a parent should be issued in accordance with General Statutes ' 7-48a. (Section 7-48a authorizes the issuance of replacement birth certificate soon after a birth if the child is the product of a gestational agreement.)

The department of public health opposed, arguing that the court lacked jurisdiction to confer parentage under Connecticut law unless that person was a biological parent, had the child through artificial insemination. or adopted the child. The trial court determined that Hargon was a parent and ordered the department to issue birth certificates in accordance with that order. On appeal to the Supreme Court of Connecticut, the court observed that in matters of this type it would be preferable to leave the question to the legislature. However, in the instant matter, the law as written could conceivably have left the children without any legal parent at all, a conclusion, the court reasoned, “which rationally could not have been the legislature's intent.” Absent guidance from the statutes, the Supreme Court interpreted ' 7-48a to allow an intended parent “who is a party to a valid gestational agreement to become a parent without first adopting the children, without respect to that intended parent's genetic relationship to the children.” Thus, the lower court did not err in determining that Horgon was a legal parent and ordering the department to issue a birth certificate naming him as such.