You can't get it both ways. The Supreme Court of New Jersey said if the damages are actual, then you cannot ALSO get presumed damages. This makes sense as the use of presumed damages was nothing more than a back door attempt to have punitive damages. Presumed Damages only pay for losses that the actual damages cannot be established.
If you have been charged with child endangerment or child abuse, call the Simon Law Group today for your free consultation. Don't wait until it's too late. Call 800-709-1131
Justices Consider Whether Leaving Child in Car Is Abuse
The New Jersey Supreme Court is mulling whether a parent can be found to have committed abuse and neglect if he or she leaves a toddler in a locked car to run into a nearby store for a few minutes.
A lawyer representing one such parent, a mother known only as E.D.-O., asked the court April 27 to overturn an appeals court ruling that upheld a finding of abuse and neglect after she left her sleeping 19-month-old child in a car with the doors locked, the windows cracked and the engine running for five to 10 minutes as she went into a Dollar Tree store in South Plainfield on May 6, 2009.
When she came out of the store, police were there, having been called by a security guard.
"All sides agree that this was an aberrational event that is unlikely to recur," said E.D.-O.'s lawyer, Sean Marotta. "She made a mistake and she would be the first person to say that she did."
Marotta, of the Washington, D.C., office of Hogan Lovells, said the case against E.D.-O. should have been summarily dismissed because there was no evidence that any of her children were in danger when a child welfare investigator visited the family at their home.
Justice Barry Albin raised the hypothetical situation in which a parent drives drunk with a child in the car and then goes into rehabilitation. He asked whether that parent could still be found guilty of abuse and neglect because there no longer is any risk.
"We're not saying past acts are irrelevant," Marotta said.
The important issue for E.D.-O., he said, is that she not be placed on the abuse and neglect registry.
"There would be no way for her to get off the registry and there would be no benefit to the child," Marotta said. "The registry looms large. Our concern is with the registry."
Justice Lee Solomon asked whether E.D.-O. wins if there is a finding that her conduct was aberrational.
"That is our argument," Marotta said. "E.D.-O. should be out of this case after six years."
Assistant Deputy Public Defender T. Gary Mitchell, representing the amicus Office of Parental Representation, questioned the validity of the finding by the Department of Children and Families' Division of Child Protection and Permanency.
"We have a bare-bones record created by the agency itself with no testimony," Mitchell said.
He noted that four years passed before the division made its determination, and that there was no harm to E.D.-O.'s children during that time.
"This should not have been litigated," Mitchell said. "They had no case."
"The child was never at risk?" Justice Anne Patterson asked.
The evidence of the child never being at risk is "powerful," Mitchell replied.
Jeyanthi Rajaraman, representing amicus Legal Services of New Jersey, agreed that the division's finding should be overturned.
"The division must prove present or future harm by a preponderance of the evidence," she said.
Chief Justice Stuart Rabner asked what factors courts should take into consideration when faced with cases where children have been left in cars.
Rajaraman listed a myriad of factors, including the urgency of the need of the stop, whether the parent tried to make child-care arrangements, the age and maturity of the child, the neighborhood where the car was parked, the weather and whether the parent was able to see the car.
Deputy Attorney General Erin O'Leary said the finding of abuse and neglect should be affirmed.
There are reported cases, she said, in which parents have been found guilty of abuse and neglect after leaving young children home alone while they went shopping.
The same standard should apply when parents leave young children alone in parked cars, O'Leary said.
"This child has been harmed," O'Leary said. "We have a child being left alone and that is gross negligence."
Patterson said it was a cool day and that the child wasn't in danger.
O'Leary agreed, but added that she could offer a "parade of horribles" about what could have happened—someone could have stolen the car or someone could have hit the car and not realized there was a child inside.
"How do you know this was aberrational?" O'Leary asked.
Albin noted the four-year period that elapsed between the incident and the finding.
"It doesn't sound like you took it very seriously," he said.
"The division does take it seriously," O'Leary said.
The division launched an investigation immediately afterward but, without holding an evidentiary hearing, sustained a finding of abuse and neglect in 2013, even though there was no evidence that her three other children—ages 9 to 14—were ever in any danger, according to court documents. E.D.-O. appealed, arguing that there should have been a hearing and that the finding was legally insufficient.
But Appellate Division Judge Clarkson Fisher Jr., joined by Judges Marianne Espinosa and Ellen Koblitz, said there was no need for a hearing because there was no dispute over material facts, only a legal question to be settled.
The relevant statute, N.J.S.A. 9:6-8.21(c)(4), says a parent can be found guilty of abuse or neglect if he or she failed to exercise a "minimum degree of care." The statute does not define "minimum standard of care," but the state Supreme Court held in its 1999 case G.S. v. Department of Human Services that a finding of abuse or neglect could be sustained if there is "grossly or wantonly negligent but not necessarily intended" conduct, or if the parent "fails adequately to supervise the child or recklessly creates a risk of severe injury to that child."
While there have been cases in which there has been no finding of abuse or neglect for leaving children alone, the difference here was that the child was left alone in a car with the engine running, Fisher said.