Criminal Charges vs. DCPP Complaints for Endangering the Welfare of a Child in NJ
What’s Difference Between a Criminal Charge and a DCP&P Case for Endangering the Welfare of a Child?
In New Jersey, being criminally charged for endangering the welfare of a child versus being accused by the Division of Child Protection and Permanency (DCP&P) for child abuse or neglect is significantly different.
New Jersey Laws on Endangering Child Welfare
The first difference between criminal child endangerment and a DCP&P investigation in New Jersey involves the controlling laws. If you are charged with any criminal offense, including endangering the welfare of a child, the charge is governed by the New Jersey Criminal Code. Under our criminal code, to be found guilty of endangering the welfare of a child, the State is required to prove its case beyond a reasonable doubt that the defendant committed one of the prohibited acts listed in the statute. The statute, N.J.S.A. 2C:24-4, is broken up into two major parts, with each part divided into two sections.
Criminal Statute: N.J.S.A. 2C:24-4
The first part of the endangering the welfare of a child statute provides that any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree. The subsequent section reads that any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
The second part states that any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined by Title 9 is guilty of a crime of the second degree. The next section hols that any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
Criminal Prosecution for Child Endangerment
Further, in a criminal matter, the State of New Jersey, or the People of New Jersey, are filing charges against the defendant. It is unlike a civil case where the alleged victim is accusing the defendant of committing a wrong. Moreover, the State or People are represented by the local Prosecutor’s Office. In Court, the assigned Prosecutor will be advocating for the State.
DCP&P Investigation for Endangering a Child
If you are being accused by DCP&P for abusing or neglecting your child, the accusation is governed by Title 9. Under Title 9, an abused or neglected child is defined, in sum, as a child under the age of 18 years whose parent, guardian, or other person having custody and control commits or permits the following acts: inflicts of allows to be inflicted upon a child physical injury by other than accidental means, creates or allows to be created a substantial or ongoing risk of injury, commits or allows to be committed an act of sexual abuse against the child, willfully abandons the child, willfully isolates the child from social contact, or fails to exercise a minimum degree of care.
Further, in child welfare matters, DCP&P is petitioning the Court to intervene in order to protect the welfare of the child. DCP&P is represented by the Deputy Attorney General’s Office. Moreover, the child or children at issue in the case are assigned their own attorney called the Law Guardian. The Law Guardian is separate from DCP&P and also separate from the parents. The Law Guardian is responsible for advocating on behalf of the child’s best interests.
Penalties for Endangering the Welfare of a Child in New Jersey
The second difference between endangering charges and child abuse and neglect charges are the possible penalties. The endangering statute criminalizes both sexual misconduct against a child and any other conduct that would cause harm to a child. The statute also heightens the degree of the crime from a third degree offense to a second degree offense if the person who committed the act had a duty to care for the child or who assumed responsibility for their care.
If the accused is convicted of second degree endangering, he or she faces the following penalties. The defendant is subject to a prison term between five to ten years and a fine up to $150,000. In addition, the individual may also be required to register as a sex offender under Megan’s Law and be forced to notify the local police, schools, and any other areas in the community where the defendant is likely to encounter children. On top of that, the offender’s information will be listed online.
If the person is found guilty of third degree endangering, the defendant faces between three to five years in prison and a fine up to $15,000. Unlike second degree endangering, the third degree offense does not expose the offender to Megan’s Law because the offense does not involve any sexual misconduct.
Also, under both offenses, the individual is subject to several mandatory fines that include $75 fine towards the Safe Neighborhood Fund, $50 fine towards the Victims of Crime Compensation Board, and $30 fines towards the Law Enforcement Officers Training and Equipment Fund. Additionally, the defendant will also be required to submit a DNA sample.
Further, if you are convicted of endangering the welfare of a child, you will have a criminal record. The record may be eligible for expungement after six years if the conduct did not consist of sexual misconduct.
What are the Consequences of Child Abuse and Neglect in NJ?
If you are found to have committed an act of child abuse or neglect under Title 9, there are no punishments such as jail, probation, community service, fines, or any other penalties that are generally issued by a criminal court. Rather, the potential consequences are court orders focusing on rehabilitating the parents and protecting the child. For instance the Court may direct the parents or guardians to attend counseling, therapy, or parenting classes. The Court may also prohibit the parents from seeing or speaking to their child. The Court also has the authority to require a supervisor be present when the parent does spend time with their child. The Court may also restrict the parent or guardian from returning home.
Additionally, the parent or guardian will be placed on the New Jersey Child Abuse Registry. However, unlike Megan’s Law, the registry is not open to the public. The registry may only be viewed by DCP&P, adoption agencies, foster care agencies, and certain employers who work with children. Further, you cannot expunge an abuse or neglect conviction. However, DCP&P matters are highly confidential and cannot be viewed by the public unless the appropriate motion is filed demonstrating one of the statutory reasons listed under Title 9 why the records should be unsealed.
Procedures for Endangering Child Welfare Cases
Criminal Process for Endangering the Welfare of a Child Charges
The third difference is the procedures and overall process a person faces when being charged with endangering versus child abuse or neglect. When facing a criminal charge, the accused is called to Court to be arraigned. An arraignment consists of notifying the individual of the charges and penalties against him or her as well as advising them of their rights such as, the right to remain silent, the right to a trial, the right to cross-examine witnesses, and the right to present evidence of their own. Thereafter, the Prosecutor’s Office can petition to detain the defendant in jail during the pendency of the case. In order to detain the defendant, the State must show by clear and convincing proof that the defendant poses a risk to flee the jurisdiction and/or will commit another crime.
Months later, the State will have to present their case to the grand jury. The grand jury proceeding is a one-sided hearing where the Prosecutor presents its case to a panel of 16 to 24 jurors. There are no judges, defense attorneys, or even the defendant. The purpose of the proceeding is to determine whether there is probable cause to believe that a crime was committed. The grand jury process serves to insure that the State is not wrongfully exercising its discretion by prosecuting defendants with little to no evidence.
If the grand jurors determine there is probable cause, the defendant will be indicted. Soon after, the defendant will be called back to Court to be informed of the indictment. From there, the Court will schedule a few conferences to discuss the status of the case. Defense counsel is free to file any motions seeking to dismiss the case or challenge the legality of the evidence in our effort to bar its use at trial. If the matter cannot be resolved, the case will be scheduled for a trial.
A trial in a criminal case is done before a jury of 14 members of the community. It is the State’s burden, and only the State’s burden, to prove beyond a reasonable doubt each and every element of the charged offense. The burden never shifts to the defendant. If convicted, the Court will schedule the case for another court appearance to sentence the defendant. However, if the defendant is acquitted, the case is over.
Civil Process for Child Endangerment Complaints
The process for DCP&P matters is very different. The case begins when DCP&P files an Order to Show Cause alongside a Verified Complaint with the Family Division of the Superior Court. The filed documents outline the child abuse allegations as well as outline any prior contact the parent or guardian has had with DCP&P. The initial hearing serves both to notify the parents of the allegations against them and also to address any emergent concerns surrounding the welfare of the child.
To address any welfare concerns, the Court may remove the child from the home and place him or her with a family relative or friend, or place the child into foster care. The Court may also place restrictions on the parents such as limiting contact between the parent and child as well as barring the parent from returning home. Lastly, the Court may also recommend that the accused parents engage in services such as counseling or therapy. However, at the initial hearing, the parents are under no duty to comply. Until there is a finding by the Family Court that the parents committed any acts of abuse or neglect, the Court cannot compel the parents to engage in any services.
Following the initial hearing, the Court will schedule another hearing date within 30 days. This hearing is referred to as the Return Date on the Order to Show Cause. At the Return Date, the parents are free to present any evidence that is relevant to possibly show the allegations are untrue, the child should be returned home, the restrictions placed on contact are excessive, or the services recommended are not needed. Please note, the parents are fee to present evidence and their version of the events at the first appearance. However, it is generally very difficult to do so because the parents are not given timely notice of the allegations. Due to the fact that child welfare matters are deemed emergent, DCP&P is permitted to file their petition will the Court with little notice to the parents. As such, the parents are generally not served until the day before or the day of the hearing.
Additionally, before the matter is even opened to the Court, DCP&P may remove a child from the court without a Court Order. The removal process is called a Dodd Removal because it is named after sponsoring legislature Frank Dodd. A removal can occur if DCP&P determines the child is facing imminent danger under the care of his or her parents and there is insufficient time to obtain a Court Order. If the child is removed, a hearing will be scheduled within 48 hours, wherein the parent can contest whether the removal was lawful.
Following the Return Date on the Order to Show Cause, the Court will schedule a case management conference to discuss any issues surrounding the welfare of the child and any discovery deficiencies. Once the case is open to the Court, DCP&P is obligated to supply the parents with all of its evidence as soon as possible. Moreover, upon request, the parents are permitted to inspect and make copies of DCP&P’s file. After the case management conference, the Court will scheduled the case for a fact-finding hearing.
Fact-Finding in Endangering the Welfare of a Child Cases under Title 9
A fact-finding hearing is very similar to a trial. The purpose of the hearing is to determine whether the parents committed an act of child abuse or neglect. Each party may present witnesses and any relevant evidence they possess. However, there are some differences between a criminal trial and fact-finding hearing. One, there is no jury. The Judge is the fact-finder. Two, DCP&P bears the burden of proof but the level of proof is preponderance of the evidence, which is substantially lower than beyond a reasonable doubt. Also, for abuse or neglect matters concerning allegations that the child suffered a physical injury by other than accident means, the burden of proof shifts to the parents. Meaning, DCP&P only has to show by a preponderance of the evidence that an injury occurred. Once that is established, the burden of proof shifts to the parents and the parents must prove that the injury was not their fault. To rebut DCP&P case, the parents can present evidence showing another individual caused the injuries or it was the result of an accident.
Depending on the findings of the Judge after the fact-finding hearing, the case may proceed in a few different ways. If the Court determines that there was no child abuse or neglect and there are no imminent child welfare concerns, the Court will dismiss the case. If the Court holds there was no child abuse or neglect but there are welfare concerns, the case will remain open and the Court will order the appropriate services as well as put in place the appropriate restrictions on the parents. If the Court finds there was abuse or neglect, a dispositional hearing will take place. At the hearing, the Court will direct the parents to engage in proper treatment, place restrictions on the parents from seeing and interacting with their children, and depending on where the child is placed, either continue placement as is or place the child elsewhere.
Accused of Endangering the Welfare of a Child in New Jersey
Clearly, there are some major differences between being criminal charged for endangering the welfare of a child versus being accused of child abuse or neglect by DCP&P. Please be mindful, this article does not list every possible difference between the proceedings. Rather, it simply outlines a basic outline and understanding of the separate matters. Therefore, if you or someone you know if facing criminal charges or is being investigated by DCP&P, please contact our office at (908)-356-6900 as soon as possible. Our attorneys handle all aspects of endangering child welfare cases in courts throughout New Jersey and we can help. Call today for answers pertaining to your specific case.