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Key Legal Developments

 
 


10/16/19: New Jersey Supreme Court Amends Rule to Expand Appearances By Law Graduates. Effective October 8, 2019, R.1:21-3 now permits law graduates who are employed by law school affiliated nonprofit organizations to provide a greater range legal assistance to low and moderate income individuals served by those organizations. Specifically, such law graduates (not law students) are now permitted to appear without in-court attorney supervision in the Appellate Division, trial courts, and administrative agencies to represent clients if the matter does not involve possible incarceration of the client for more than six months, or a potential monetary award for or against the client of more than $100,000. Under prior rule, R.1:21-1(a), law graduates were limited to court appearances only to answer the calendar call on behalf of the organization’s clients. Permission for individual law graduates to make court and agency appearances concludes if the graduate fails to sit for and pass the first bar exam scheduled after graduation. Pursuant to the prior rule, a law graduate could not appear after failing to pass the New Jersey bar exam for a third time or after two years of employment following graduation, whichever was sooner.

09/17/19: In the Matter of J.S. No. 12-06-00713 (Law Div. 2019) – Approved for Publication -- The Court held that a petitioner is not barred from a drug court expungement based on a DUI conviction in Pennsylvania during his probation and prior to his graduation. Even though the other jurisdiction classified the DUI as a crime, it is not considered a criminal offense (or a disorderly persons or petty disorderly persons offense) in New Jersey but is a non-expungeable motor vehicle offense which would not bar expungement.

09/12/19: The U.S. Court of Appeals for the Third Circuit held on appeal in Hackler v. Arianna Holdings Company, LLC, that a NJ tax foreclosure can be avoided within 90 days if the tax certificate holder received more than it would have received in a chapter 7 bankruptcy case. Additionally, a tax foreclosure may be avoidable within two years as a fraudulent transfer because “reasonably equivalent value” for the property is not paid in the tax sale certificate bidding process whereby a homeowner’s other creditors are prejudiced. With this decision, a homeowner who lost equity as the result of a tax foreclosure may be able to undo the tax foreclosure in bankruptcy to save at least some of the equity, or possibly get the house back, if they file a bankruptcy petition in time.

08/13/19: On August 9, 2019, Governor Murphy signed into law amendments to the New Jersey medical record copy law that will allow free medical record copies for some people of limited means, and for requests by the not-for-profit companies and pro bono attorneys representing them. The law will go into effect on the first day of the 7th month following its passage (March 1, 2020) and will allow Legal Services offices to get free medical record copies for their clients. Individuals meeting certain financial criteria (at or below 250% of the federal poverty level), or who receive state or federal assistance, are also eligible to directly request and receive a free copy of their records. Senate, No. 984 is a preliminary copy of the text of the new law.

06/25/19: New Jersey Div. of Child Prot. & Permanency v. B.H., No. A-4179-17T2 2019 WL (N.J. Super. App. Div. June 25, 2019) (Mayer, J.). - Defendant appealed the trial court’s determination that defendant abused or neglected his girlfriend’s child. In 2015, defendant and the girlfriend began dating. Shortly after the beginning of their romantic relationship, defendant met the girlfriend’s five-year-old child. Defendant would occasionally have dinner with the girlfriend and her child. In March 2017, defendant supervised the girlfriend’s child for the first time while the girlfriend was at work.

In April 2017, the child became ill while at daycare. However, the girlfriend did not have a car, so she asked defendant to drive her to pick up the child from daycare. The couple picked up the child, and placed her in a car seat in the rear passenger seat of the car. The girlfriend “believed she properly secured the car seat.” While driving from the daycare, defendant got into a single-car accident. The couple did not report the accident because no other vehicles were involved.

Following the accident, defendant drove the child to a fast-food restaurant for a snack. During this time, the police received a report of a male under the influence in the parking lot of the fast-food restaurant with a child in the car. When the police arrived, they saw that (1) defendant’s car was improperly parked; (2) defendant appeared to be sluggish, swaying, and had slowed speech; and (3) defendant’s car had sustained substantial damage. Additionally, the police found a pill in defendant’s car that was identified as oxycodone or a derivative thereof.

When the police removed the child from the car seat, they found that the seat was improperly secured and covered in glass particles. The police then arrested defendant, and found four additional pills in his pocket. At the police station, the defendant failed several sobriety tests.

The Division investigated the incident and substantiated a finding of abuse because “[defendant] was in a caretaker role of [the child].” The Division then petitioned the family court for custody of the child. The judge determined that defendant was the child’s guardian and thus defendant was properly charged with abuse or neglect of the child.

In a reported decision, the App. Div. held that “the family court lacked jurisdiction to proceed under Title 9” because “[defendant] was not [the child’s] parent or guardian.” Thus, the App. Div. reversed the trial court’s finding of abuse or neglect.

06/21/19: On April 29, 2019, the New Jersey Supreme Court decided the consolidated cases of Patricia McClain v. Board of Review, Department of Labor and Cynthia Blake v. Board of Review, Department of Labor.  237 N.J. 445 (2019). Both appeals raised the question of whether a person who leaves one job to take a better job but, through no personal fault, is unable to start the second job, is precluded from unemployment benefits. (Read More)

06/21/19: New Jersey Div. of Child Prot. & Permanency v. M.M., No. A-3597-17T2 2019 WL (N.J. Super. App. Div. Apr. 2, 2019) (Sabatino, J.) - Defendants appealed a trial court’s termination of parental rights. Defendant M.M. (“the mother”) is the biological mother of seven children. The mother’s five youngest children all have the same father, Defendant V.B. (“the father”), who is also currently married to the mother. In 2010, the Division removed the two oldest children from the mother’s care, following reports that the children were left unsupervised. However, the Division temporarily returned the two children to the mother’s custody, and during that time, defendants married and had three children together.

In 2015, the Division investigated the family and determined that, as a result of the father’s neglect, one of the children had fallen off a bed and was burned by a radiator. However, the Division did not remove the children at that time.

In 2016, the Division removed all five children because “the mother had tested positive for marijuana . . . and because caseworker interviews . . . raised concerns about physical abuse.” The Division placed the two eldest children with their maternal grandmother, and the three younger children, along with the youngest child born after the Division filed a complaint of guardianship, with their maternal great aunt.

At trial, evidence was introduced demonstrating: (1) the mother’s marijuana use; (2) the parents’ psychological difficulties; (3) the services the parents received from the Division; and (4) the parent’s current employment and apartment size. The trial judge terminated the parents’ rights to “enable [the maternal grandmother and maternal great aunt’s] adoption of the children consistent with the children’s best interest.

In an unpublished decision, the App. Div. held that the Division met its burden of proof, as to both parents, with respect to the first two prongs of the termination statute, N.J.S.A. 30:4C-15.1(a). However, the App. Div. remanded the case with respect to prongs three and four of the termination statute in order to: (1) more clearly develop the trial record to determine whether each resource parent “unequivocally, unambiguously, and unconditionally wishes to adopt the children in her care, regardless of the potential alternative of Kinship Legal Guardianship (“KLG”)”; and (2) obtain explicit trial court findings addressing how KLG relates to the feasibility of adoption and the resource parents’ consent to adoption.

06/20/19: New Jersey Dep’t of Children and Families, Div. of Child Protection and Permanency v. L.O., No. A-0007-15T2, 2019 WL 2492542, at *1, *8 (Approved for Publication N.J. Super. App. Div. June. 17, 2019) - Defendant appealed a final agency decision substantiating child abuse or neglect. The child at issue was born to defendant mother and father, who were never married, but were living together at the time of the child’s birth. The parents later separated, triggering a custody battle. Defendant obtained a domestic violence final restraining order against the father, resulting in the father’s criminal conviction.

During the custody proceeding, the judge ordered reunification therapy to improve the father’s relationship with the child. However, the doctor who oversaw the reunification therapy, “formed the belief that [defendant] was the cause of [the child’s] emotional and physical stress . . . the doctor suspected what she referred to as ‘Munchausen By Proxy Syndrome.’” As a result of the doctor’s testimony, the family court judge granted custody to the father, and limited defendant to one hour of supervised visitation per week. While the doctor was testifying concerning the Munchausen diagnosis, the judge referred the matter to the Division for investigation. The Division concluded that its investigation resulted in a substantiation of abuse or neglect, partially based on the doctor’s assertion of defendant’s Munchausen diagnosis.

Defendant appealed the Division’s substantiation finding. On appeal, the ALJ rejected the Division’s substantiation of abuse or neglect because the Division “had been selective in its focus on [defendant’s] behavior.” Instead, the ALJ concluded that defendant suffered from mild depression and anxiety as a result of the breakup and custody battle but did not pose a substantial risk of harm to her child.

Next, the Division filed exceptions and the Assistant Commissioner reinstated the initial substantiated finding. The final decision directed that defendant’s name be included in the Child Abuse Registry. On appeal, defendant argued that indigent parties should be appointed counsel during child abuse proceedings because of the severe consequences of a substantiated finding.

In a reported decision, the App. Div. held that an indigent parent or guardian ­– substantiated for child abuse or neglect – is entitled to the appointment of counsel when exercising the right to an administrative hearing. The court held that “counsel should be made available for indigent parents and guardians both at the administrative level and in any appeal of right”
We agree with [respondent] and the ACLU and hold that: (1) the consequences of a child-abuse substantiation are of sufficient magnitude to warrant the appointment of counsel for an indigent defendant; (2) that right attaches not only to administrative proceedings commenced when the government agency provides the parent or guardian with written notice that an investigation has substantiated abuse or neglect, but also when a final agency decision has been appealed to this court as of right and it further includes the right to free transcripts; and (3) until such time as the Legislature makes provision, the right to counsel shall be enforced by courts and agencies through the appointment of pro bono counsel from the Madden List.


06/20/19: New Jersey Division of Child Protection and Permanency v. J.B. (Approved for Publication; June 19, 2019) - In a reported decision, the App. Div. held that the Division can obtain court approval to vaccinate minor children in the Division’s care, custody, and supervision due to the parent’s substantiated abuse and neglect, despite the parents’ religious objection. The court held that “[w]hen children are removed from their parents under Title 9, the Division is charged with the duty to provide appropriate medical care and treatment . . . this duty encompass[es] the authority to administer age-appropriate immunizations over the religious objections of the parents.”

The App. Div. noted that: (1) the Division is authorized to provide medical care or treatment for a child when such care or treatment is necessary to prevent or remedy serious harm to the child; (2) ordering age-appropriate immunization is warranted because of the highly contagious nature of measles and other vaccine-preventable diseases; (3) requiring immunization is an appropriate use of the State’s police power because vaccinations will protect children from needlessly contracting diseases with potentially serious complications; and (4) parents whose children are placed under the supervision of the Division due to substantiated abuse are situated differently than parents who retain legal and physical custody of their children.

04/30/19: DCPP v. J.W.-D. and I.M., (A-1840-17T2)(A-1841-17T2) Decided April 23, 2019 (Per Curiam)

Facts: J.W.-D is the mother of three sons, IS.M. (Ian), J.M. (John), and E.W. (Eric).  I.M. is the father of the two oldest sons, Ian and John. Father of the youngest son, Eric, is unknown.

The oldest two children, Ian and John, were removed from the mother’s care and placed in a non-relative resource home in 2012. The mother had a history of mental illness, involuntary hospitalizations, repetitive drug use, and a psychotic episode in which she nearly drowned one of her sons. The father was incarcerated at the time of removal by the Division and will continue to be incarcerated until at least 2023.  In May 2013, Ian and John were placed in the care of C.W., the mother’s maternal grandmother. They remained with C.W. for the next year and half until December 2014. During this period, the mother gave birth to the youngest son, Eric, in November 2014. (Read More)

04/18/19: JSM at Edison Terrace LLC v Edison Fair Rental Housing Board et al. (Decided 4/5/19) - JSM is a mobile home park. For 24 years JSM did not charge tenants for water consumption. In 2009, JSM sent Defendant/Tenant Phyllis Hall a lease which added:
8. UTILITIES. Subject to local rent control regulations, at the inception of Residency, you shall pay for all utilities servicing the Site. Owner is not contractually obligated to pay for any utilities provided to the Site during Residency. . . . Utility charges improperly assessed to Owner subsequent to your taking occupancy shall be considered additional rent

9. WATER/SEWER SERVICE. Subject to local rent control regulations, you are responsible for the maintenance of your water and sewer lines from the Owner's connection to your Mobile Home, and in the event Owner elects to convert your unit to direct billing to the relevant water/sewer authority, you will then be responsible for payment of water and/or sewer service.
In 2017, JSM raised the rent by 5%, the maximum permitted by local ordinance, and installed water sub-meters. Ms. Hall then filed a complaint with the Edison Township Rental Housing Board (“Board”), alleging that the installation of the sub-meters was a reduction in services in violation of the township’s Housing Code and argued that such action constituted an increase of more than five percent allowed by the code. Section 17-4.11 of the Code states: "Landlords shall maintain the same standards of service and maintenance of all real and personal property and equipment in and around the housing spaces and dwellings in the same manner as was provided on the date of adoption of this section." The Board found JSM's installation of water sub-meters was effectively a method to pass through the cost of water to tenants and that this constituted a reduction in services, in violation of § 17- 4.11, because JSM now required tenants to pay for a service that was previously provided to them. The Board argued that since the inception of Ms. Hall’s tenancy the water was factored into rent. As a result, the Board ordered JSM to reimburse Hall and provide her water at no charge.

JSM filed a complaint in lieu of a prerogative writ in the Law Division. The judge found in favor of Hall and the Board. JSM appealed. The Appellate Division agreed with the Board that in effect, JSM's installation of water submeters was a method by which to pass through the cost of water to the tenants without offering a corresponding rent decrease. JSM kept attempting to argue that a “utility” was not a “service” under the township’s Housing Code. The Appellate Division deferred to the Board’s review and held that the direct water billing was really an unapproved rent increase in excess of the 5% limit.

04/18/19: Rainer v. Bartlow (Decided 3/26/19) - On September 11, 2011, Rainer rented an apartment to Michael Bartlow, his daughter Nicole and her boyfriend Matthew. Michael never lived there nor intended to live there and was not listed as an occupant.  The lease terms precluded Michael from residing in the premises  There was no language in the written lease agreement stating that Michael was signing the lease as a guarantor for his daughter and her boyfriend, though that apparently was the intention.

The first year lapsed, and no new written lease agreement was signed thereafter. Nicole and Matthew later fell behind on rent, and an eviction judgment entered in 2017. Rainer filed a small claims action alleging that Michael was responsible for the back rent as a co-signor of the lease. The court found in favor of Rainer on this issue and Michael appealed. The Appellate Division reversed.
Contrary to well-established settled authority, however, the parties did not execute a guaranty agreement memorializing their intention. See Peoples Nat'l Bank v. Fowler, 73 N.J. 88, 101 (1977) ("It has long been settled law that a [guaranty] is chargeable only according to the strict terms of its undertaking and its obligation cannot and should not be extended either by implication or by construction beyond the confines of its contract."). Further, pursuant to the statute of frauds, "[a] promise to be liable for the obligation of another person, in order to be enforceable, shall be in a writing signed by the person assuming the liability . . . ." N.J.S.A. 25:1-15.
The Appellate Division reasoned that while the intention was for Michael to guarantee rent for the duration of the lease agreement, that obligation ceased when the lease agreement expired in 2012. If Rainer wanted Michael to be personally liable for rent beyond that time, then Rainer should have had him sign a guaranty agreement. The Appellate Division did not address whether Michael might have been liable for rent during the initial lease term, even though the agreement did not contain the guarantee language, because that rent was paid. Rainer also tried to argue that Michael was liable for rent as a holdover tenant. However, the Appellate Division found that he could not be a holdover tenant within the meaning of 46:8-10 when he was never permitted to occupy the premises.

04/18/19: VOADV Property Inc., v. Warren (Decided 3/21/19) – VOADV under its Moving Forward program enters into lease agreements with landlords subleases the units, with rental subsidies attached, to program participants. Ms. Warren fell behind on her portion of the rent after her daughter moved out. The parties through counsel negotiated and entered into a consent judgment for possession relying on the representation that Ms. Warren would be able to use the subsidy at another place. It was only after the consent judgment was entered that defendant's counsel was advised that the subsidy attached to the specific unit, and not to defendant, and that she only permitted her to occupy the property because of her daughter’s disability. The court denied subsequent order to show cause to vacate the consent judgment and motion for reconsideration.

The Appellate Division found that the consent judgment should be vacated pursuant to R. 4:50-1(c) (fraud . . . ,misrepresentation, or other misconduct of an adverse party) because the record supported that VOADV misrepresented the status of her voucher as an inducement to have defendant sign the consent order and agree to vacate the premises.

04/08/19: Under a legislative policy to avoid voter disenfranchisement, in 1974 N.J.S.A. 19:23-22.4 was amended to include Spanish as a primary language in sample ballots for 10% of registered voters for the election district in that county. In Correa v. Gross (Decided 4/8/19), the Appellate Division had the novel issue before them of whether sample primary ballots must be printed in Spanish and English for mail-in ballots and the larger question of whether the sample ballot intended to mirror the official ballot requires the official ballot to conform to the bilingual sample ballot. The Appellate Division noted the confusion between the various voting statutes but looked at the legislative intent and found that “it is clear that the Legislature has expressed a strong policy interest in protecting Spanish-speaking voters from being disenfranchised” and has “adopted a panoply of protections in voting districts where the primary language of at least ten percent of registered voters is Spanish.” The Appellate Division agreed with the plaintiff that there would be an absurd result if the sample ballot was accessible to Spanish-speaking voters but the official ballot was not. If the Appellate Division’s interpretation of the legislative intent was incorrect, the Court noted that the Legislature is free to amend the statutes to clarify its intent. The matter was remanded to the trial court for an order conforming with this opinion.


02/11/19: New Jersey Division of Child Protection and Permanency v. A.S.K. (A-50-17) (079700) (Per Curiam)—New Jersey Supreme Court affirmed the Appellate Division’s affirmance of the trial court. The trial court terminated the parental rights of the Defendant, who is the biological father of the child. The child alternated his residence between his mother and father during the first 4 years of his life. The Division became involved with the family due to allegations of medical neglect of the child under the mother’s care. When the child began living with Defendant, the medical neglect was remedied and the Division found Defendant was capable of caring for the child. Due to family conflicts, Defendant returned the child to the care of the mother. The Division removed the child from the mother soon thereafter. During the next three years while the child was in the Division’s custody, Defendant did not provide his current contact information to the Division and did not seek contact with the Division, despite the fact that he knew the child was in the Division’s custody. During the course of the three years, Division had changed its goal from reunification to adoption and filed a guardianship complaint. Although Defendant appeared for the first time in the guardianship litigation in January of 2016, he missed subsequent court-ordered evaluations several times.

The trial court conducted a four-pronged analysis of best interests of the child, as codified in NJSA 30:4C-15. The first prong, “The child’s safety, health, or development has been or will continue to be endangered by the parental relationship;” and the second prong, “The parent’s unwillingness or inability to eliminate that harm.” were met by the court’s finding that the Defendant voluntarily withdrew from the child’s life for substantial periods of time, while the child was in danger of medical neglect and while the child was under the care of the Division. The third prong, “Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights,” was met by the Division’s attempts to contact the Defendant, Defendant’s failure to appear at appointments, and the Division’s consideration of alternative placements. Although Defendant was never served with the Title 9 complaint due to the Division’s mistake, the trial court ruled, as affirmed by the Appellate Division and the Supreme Court, that the Division’s search for his address was adequate, that Defendant had actual knowledge, and that no prejudice is attributed to the Defendant due to the delay in service. The fourth prong, “Termination of parental rights will not do more harm than good,” was met by the psychologist’s testimony regarding the emotional attachment between the child and resource parent. The Supreme Court further noted that the proceeding was “needlessly drawn out” due to the Division’s errors and delay in service and urged the Division to conduct a new search for a parent for each phase of the litigation and implement procedures that retain a party’s past contact information.

01/28/19: The New Jersey Supreme Court recently ordered the dismissal of more than 780,000 minor municipal court matters older than 15 years, including parking tickets and some minor traffic violations. The effort was designed in part to help address the problem of mounting court debt or fines and fees which have created access to justice issues for many, most particularly those of low-income statewide.

01/08/19: In the Matter of Expungement of the Arrest/Charge Records of T.B., (A-18/19/20-17) (079813) (decided January 8, 2019), the New Jersey Supreme Court held that successful drug court graduates presumptively meet the “public interest” when the court considers their expungement applications under N.J.S.A. 2C:35-14(m). Additionally, they are not required to provide copies of all relevant transcripts and reports otherwise required under In re Kollman for those convicted of third or fourth degree drug sale or distribution offenses. (Read more)

01/04/19: J.G. v. J.H. (Published App. Div decision by J. Koblitz). In this case, LSNWJ persuaded Judge Koblitz and the other Appellate Division panel members that ”Because the welfare of children is paramount whether the parents are married, divorced or never-married,” they must be provided (most of) the procedures required for custody and parenting time in a divorce litigation. Specifically, the court held:

“[Prior to [an FD] plenary hearing, the parties should have been sent to mediation, Rules 1:40-5 and 5:8-1, and, if they were unable to resolve the issues, they should have been required to submit a Custody and Parenting Time/Visitation Plan pursuant to N.J.S.A. 9:2-4(e), Rule 5:8-5(a) and Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001). The required procedures for custody and parenting time cases are outlined in Administrative Directive #01-02, ‘Standards for Child Custody and Parenting Time Investigation Reports’ (Apr. 2, 2002), and include use of alternate dispute resolution, followed by an investigation report when ‘conflicting information from the parties make it difficult to make a determination in the best interest of the child regarding custody/shared parenting time.’ A Social Investigation Report should be ordered where ‘conflicting information regarding which parent can serve the long term best interest of the child is presented before the court but the psychological fitness of both parties is not in question.’ Ibid.”

Additionally, the court detailed how court appearance in this non-dissolution case failed to provide required hearing procedures, including an opportunity for each side to present evidence, cross-examine witnesses, and make legal arguments.