(APPEARANCES TENDERED.) CHIEF JUSTICE RABNER: GOOD MORNING,
COUNSEL. WELCOME. MR. MITCHELL, PLEASE GO AHEAD.
T. GARY MITCHELL: THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT
I WOULD LIKE TO RESERVE THREE MEANT FOR REBUTTAL FOR ME. THE
COURT: THAT'S FINE. T. GARY MITCHELL: THIS APPEAL ASKS THE COURT
TO RESOLVE ISSUES AT THE INTERSECTION OF TWO NEW JERSEY LAWS THAT PROTECT CHILDREN,
TOOIT L 9 AN THE SAIK BEING, DOING SO, THE COURT SHOULD REJECT LIFE ON THE FORM
ER AN BREATHE LIFE INTO THE LATTER, THE COURSE SHOULD REVERSE A PUNITIVE TITLE 9
JUDGMENT THAT SERVED NO CHILD PROTECTION PURPOSE YET STIGMATIZED A MOTHER WITH
A LIFE LONG EMPLOYMENT LIMITING PLACEMENT ON THE CHILD ABUSE REGISTRY.
THE COURT SHOULD ALSO HOLD THE MOTHER'S ACTS HERE WERE FAITHFUL INFORM THE SAVE
HAVEN LAW WHEN SHE DELIVERED THE BABY SAFE IN THE HOSPITAL AN THEN WALKED AWAY.
THIS CUSTODY IS NOT ABOUT CUSTODY OR PARENTAL RIGHTS, THE FACTS
ARE SIMPLE THE BABY WAS LEFT WITH AMPLE CARE AN A SAFE ENVIRONMENT WITH MEDICAL
ATTENTION READILY AVAILABLE, THE DIVISION PRESENTED NO EVIDENCE OF IMMINENT
DANGER OR EVEN ANY TYPE OF HARM OR RISK, THOSE ARE THE SPECIFIC ELEMENTS OF A TITLE
9 VIOLATION, L ELEMENTS THAT THIS COURT HAS SAID REQUIRE PARTICULARIZED
EVIDENCE. L HERE, THERE WAS NONE. AS TO TITLE 9 THIS CASE WAS ABOUT
WHETHER STATUTORY ELEMENTS MATTER IN CIVIL PROSECUTION, THIS COURT HAS SAID
THEY MUST STRESSING THAT POINT IN THE LAST DECADE AS OTHER CASES, REVERSING TITLE
9 JUDGMENTS WHEN INFANTS WERE LEFT ALONE OR EXPOSED TO DRUGS.
UNDER THAT BODY OF LAW A WOMAN DOES NOT VIOLATE TITLE 9 BY REASONABLY LEAVING A
NEWBORN IN THE SAVE ES OF POSSIBLE PLACES, THE JUDGMENT SHE DID HERE RESTED
ONLY ON COMMUNICATIONS WITH HOSPITAL STAFF OR DIVISION THAT WERE NOT CANDID BUT
NEVER I'M PEARLED THE BABY. TITLE 9 IS WRONGLY USED TO ADDRESS
AGENCY EX AS SPEAKER RAGS. PUNITIVELY AND WITH DISAPPROVAL
BUT NO FACTS ESTABLISH ANY OF THE REQUIRED STATUTORY ELEMENTS OF TITLE 9
NEGLECT. FURTHER HERE, IN LEAVING A BABY THE MOTHER DID WHAT
THE LAW EXPRESSLY PERMITS, THIS CASE AROSE AFTER MY THEN 25 YEAR OLD CLIENT GAVE
BIRTH TO A BABY ON JUNE 21, 2020, DISCLOSED MARIJUANA USE THE DIVISION
IMMEDIATELY PUT A HOSPITAL HOLD ON THE BABY. THIS CASE CONCERNS ONLY
WHAT TOOK PLACE OVER THE NEXT FEW DAYS OR WHAT DID NOT. NOTHING
DURING THAT TIME SHOWED AN IOTA OF RISK TO THE BABY BUT THE DIVISION NOTED IN A
HEADING UNDER THEIR RECORDS CALLED IMMEDIATE RED FLAGS THE PROBLEM AT
PAGE 101 AND 100 OF THE RECORD SAYING AFTER MY CLIENT WAS DISCHARGED SHE DID NOT
RETURN FOR THE BABY SO THE DIVISION TOOK CUSTODY WAS IN COURT BY JUNE 30 AND
ABANDONMENT. SAFE HAVEN ACT. FIVE MONTHS LATER IN NOVEMBER 2020, THE
DIVISION ABANDONED IT'S ABANDONMENT CLAIM AFTER DEFENSE COUNSEL NOTED THE
SAFE HAVEN ACT HAS AN AFFIRMATIVE DEFENSE FOR SUCH A CLAIM. NOTE PLEA MY CLIENT
HAD NO COUNSEL UNTIL OCTOBER 21 AT WHAT WAS JUST THE THIRD HEARING. THESE
FACTS RECORDED IN DIVISION RECORDS MADE CLEAR THAT WITHIN A WEEK OF THE BIRTH THE
DIVISION HAD NO DOUBT THAT MY CLIENT WAS NOT RETURNING FOR HER BABY THAT IS
SOMETHING THE SAFE HAVEN ACT ALLOWED IF SHE HAD BEEN TOLD OF IT.
THIS IS CRUCIAL. WHY? HAD COUNSEL, A DIVISION
WORKER OR HOSPITAL STAFF TOLD HER OF HER SAFE HAVEN ACT OPTIONS WE WOULD NOT
BE HERE. THE BABY WOULD HAVE BEEN PLACED FASTER AND THIS ENTIRE
CASE AVOIDED. BASED ON THE FACTS REPORTED BY THE AGENCY IT COULD HAVE ADVISED
HER NOT TO WORRY AND AS WAS ITS DUTY TEE TOLD HER NEW JERSEY LAW GAVE HER
OPTIONS, THE DIVISION DID NOT DO SO. NO ONE DID. THAT FAILURE IS EGREGIOUS EVEN
CRUEL, THE DIVISION MADE THREATS, NANDZ, MY CLIENT SIMPLY WANTED TO AVOID ALL
THAT SO SHE HID OUT AS BEST AS SHE COULD TRYING NOT TO RAISE EYEBROWS BUT
DID NOTHING TO POSE ANY DANGER OR SUBSTANTIAL RISK FOR THE BABY BUT FOR THE
DIVISION IT WAS RADIO SILENCE ON THE SAFE HAVEN ACT. TO TREAT
THIS CASE AS A SAVE HAVEN LAW WOULD SPUR CASES TO TERMINATE PARENTAL RIGHTS OR
WORSE AS THE LAW GUARDIAN YAN HAS ARGUED WOULD BE PATRIARCH AL AND EVEN
RACIST, HARDLY, WHAT CAUSES REAL HARM IS TO INFLICT LIFE LONG SENSE IS YOUR AS
A CHILD ABUSER, THE COURT SHOULD BAR THAT RESULT UN TITLE 9 AN THE SAFE HAVEN ACT
BECAUSE NOTHING MY CLIENT DID EM I'M PEARLED THE BABY. THE
FOCUS AND ON THE TRIAL JUDGE WAS ON COMMUNICATION WITH DIVISION WORKERS NOT PERIL
TO A CHILD. EXCUSE ME. THE CLEAR CASE FOR
AN UN SOPHISTICATED YOUNG WOMAN MAKING CLEAR WHILE TRYING TO SAY ANONYMOUS THAT
SHE DID NOT INTEND TO RETURN FOR HER BABY IS HARD TO IMAGINE. HER ACTIONS
MADE CLEAR AS THE DIVISION DOCUMENTED IN HER RECORD THAT SHE DID NOT PLAN TO
RETURN. THAT IS WHAT THE SAVE HAVEN LAW PERMITS IN TO GO SO SHE DID NOTHING TO
VIOLATE TITLE 9 BY LEAVING THE BABY IN A SAVE HAVEN. IN SUM,
INACCURATE AN MISLEADING COMMUNICATIONS DO NOT WARRANT TITLE 9 SENSE IS YOUR AS
NEGLECT, TRUE SHE DISPLEASED THE DIVISION AND A JUDGE BUT WHAT SHE DID HERE
DID NOT REMOTELY VIOLATE TITLE 9 AND FELL UNDER THE CONDUCT PROTECTED UN THE SAVE
HAVEN LAW. IF THE COURT HAS ANY QUESTIONS I WOULD BE
GLAD TO TRY TO ANSWER YOUR INQUIRIES. CHIEF JUSTICE RABNER: THE DELAY
THAT TOOK PLACE, WHICH YOU DESCRIBED AS A BRIEF DELAY. WE'VE HEARD ARGUMENTS
THAT LEFT THIS CASE IS LIMBO, THAT DELAYED BLANK, COULD YOU RESPOND. TIT TIT I
THINK IT'S EF FEM MER RAL, CHIEF JUSTICE. THE DELAY WAS DAYS AFTER, IN
THE INVESTIGATION REPORT AT PAGE 200 OF THE RECORD. I'M SORRY, PAGE 100 AND PAGE
102 OF THE RECORD. THE DIVISION DOCUMENTS THAT SHE IS NOT RETURNING. SHE'S NOT
COMING BACK. AND THEY QUOTE THE LANGUAGE FROM THE ABANDONMENT STATUTE, WHICH
ACTUALLY TRACKS THE SAVE HAVEN LAW THAT SHE HAS GIVEN UP,S SHE IS NOT COMING BACK
SHE HAS GIVEN UP HER RIGHTS TO THE CHILD. THE DIVISION KNEW THAT SO THE
DELAY, IF ANYTHING WAS FRANKLY THE DIVISION'S AGGRESSIVE PROSECUTORIAL APPROACH
TO A MOTHER WHO MADE CLEAR AS THE DIVISION ACKNOWLEDGED THAT SHE WAS NOT
COMING BACK. THE CHILD WOULD HAVE BEEN PLACED PROBABLY WHERE
THE CHILD WAS PLACED BY THE DIVISION. THE RECORDS DID IDENTIFY THE FATHER AND
UNDER THE SAFE HAVEN REGULATIONS THE DIVISION AT THAT POINT IN TIME HAS AN
OBLIGATION TO CONTACT OR TO LOCATE THE OTHER PARENT OR THE OTHER PARENT'S REL TIFLS
AN FAMILY. THE DIVISION DID THAT IN THIS CASE. TO CHARACTERIZE
THE DELAY AS PROBLEMATIC, AS MY COLLEAGUES ON THE OTHER SIDE DO, I WOULD HAVE TO
USE THE WORD MAL LARK KEY. JUSTICE PATTERSON: THE SAVE HAVEN
LAW STARTS A PROCESS. ON AN EXPEDITED BASIS AS I UNDERSTAND IT, AM I RIGHT
ABOUT THAT. T. GARY MITCHELL: TRUE. JUSTICE
PATTERSON: WHAT IS THE DIVISION'S OBLIGATION, WHEN THEY'RE IN THE HOSPITAL,
THERE IS A HOSPITAL HOLD. THEY ARE HAVING CONVERSATIONS WITH THE ONLY PARENT
THERE, THE MOTHER AND THESE ARE CONVERSATIONS DEALING WITH FUTURE -- THE
POSSIBILITY OF HER PROVIDING HOUSING AN CARING FOR THE CHILD. IS
IT YOUR CONTENTION OF THE DIVISION SHOULD START TALKING ABOUT SAFE HAIFB, WHICH
IS A SHORTCUT, POTENTIALLY TO TERMINATION WHEN THE PARENT CUSS SAY ANYTHING
ABOUT I'M NOT PLANNING TO COME BACK, I AM GOING TO LEAVE I'M NOT INTERESTED IN
RAISING THE CHILD. TO THE CONTRARY, HERE, THERE WERE INDICATIONS
THAT THE PARENT WAS PLANNING FOR CARING FOR THE CHILD. DO YOU
SEE WHAT I'M SAYING? SHOULD THE DIVISION BE SAYING WAIT A MINUTE,
THERE IS A SAFE HAVEN LAW, ALL YOUR PROBLEMS CAN BE SOLVED IF YOU JUST
INVOKE THAT AND YOU CAN LEAVE AND GO HAVE A HAPPY LIFE. T. GARY
MITCHELL: I THINK JUSTICE, YOU POINT OUT AND IF I COULD PARSE YOUR FINAL COMMENTS
THERE, IF THEY JUST ADVISE HER OF THE OPTIONS AN THEN SHE INVOKES. SHE
DOESN'T HAVE TO INVOKE. THEY CAN AND IN FACT THE LEGISLATURE MODIFIED THE SAFE
HAVEN LAW TO FOCUS ON THE CIRCUMSTANCES. JUSTICE PATTERSON:
YOU SEE WHAT I AM GETTING AT IS THERE IS AN ELEMENT HERE OF THE DIVISION, WHICH
AT TIMES ADVOCATES SAY IS PRESSED TOO HARD FOR TERMINATION OF PARENTAL RIGHTS.
IF THERE IS NOTHING OTHER THAN THIS PARENT WHO HAD CHALLENGES BUT WAS MAKING
PLANS TO TAKE CARE OF THE CHILD SHOULD THE DIVISION BE SAYING THERE IS THE SAFE
HAVEN LAW, YOU CAN LEAVE HER HERE AND NOT COME BACK? T. GARY
MITCHELL: THE SHORT ANSWER, I THINK IS YES. MY LITTLE LONGER ANSWER, YOUR HONOR,
WOULD BE THAT I DON'T THINK THE RECORD IS AS CLEAR AS THE DIVISION TRIES
TO SPIN IT. JUSTICE PATTERSON: TO BE HONEST WITH THE
QUESTION I AM NOT SO FOCUSED ON THIS EX ABSENT CASE. DO YOU SEE WHAT
I AM SAYING THERE IS NOTHING INDICATING AT LEAST AS FAR AS WE KNOW THAT THERE WAS
AN INTEREST IN LEAVING AN NOT COMING BACK AT THAT POINT. T. GARY
MITCHELL: I THINK IF THE DIVISION CONCLUDES, IT'S SOCIAL WORKERS ARE OUT THERE
THE DAY AFTER THE BIRTH AN DAYS LATER THE DIVISION CONCLUDES THIS WOMAN
IS NOT COMING BACK FOR HER BABY WE'RE GOING TO CHARGE HER WITH ABANDONMENT.
CHIEF JUSTICE RABNER: BEFORE YOU GET TO THAT CONCLUSION WHAT OBLIGATION
ARE YOU ASKING BE IMPOSED ON THE DIVISION TO NOTIFY PEOPLE ABOUT THE SAFE HAVEN
ACT. T. GARY MITCHELL: WHERE THERE ARE CIRCUMSTANCES THAT
SUGGEST AM BI VAL LENS WITH REGARD TO THE BABY. JUSTICE
PIERRE-LOUIS: TO THE FACTS SUGGEST THAT THERE WAS AMBIVALENCE AT THE TIME THE
DIVISION WAS COMMUNICATING WITH THE MOTHER IN THE HOSPITAL? GIVEN
WHAT WE KNOW OF THE FACTS HERE, IT DIDN'T SEEM AS THOUGH THERE WAS ANY AMBIVALENCE
DURING THE TIME THAT DCPP WAS COMMUNICATING WITH THE MOTHER R IN THE
HOSPITAL SO WE'RE TRYING TO GET AN UNDERSTANDING OF IN WHAT CIRCUMSTANCES WOULD
DCPP BEGIN DISCUSSING THE SAFE HAVEN ACT OR MENTIONING THAT TO A MOTHER OR OR
FATHER THAT DOES NOT SEEM TO GIVE ANY INDICATION THAT THEY ARE EVEN THINKING
ABOUT LEAVING THE CHILD WHEN PLANS SEEM TO BE IN PLACE FOR THE MOTHER TO TAKE THE
CHILD HOME. T. GARY MITCHELL: WELL, I THINK THERE IS NO
HARM IN PROVIDING INFORMATION; THAT'S ALL THE DIVISION NEEDS TO DO. WHEN
THE DIVISION WAS CALLED IN -- JUSTICE MICHAEL NORIEGA: WHAT TRIGGERS
THAT BURDEN? TO JUSTICE PIERRE-LOUIS QUESTION, IFFING
EVERYTHING SHE IS INDICATING I WILL BE RIGHT BACK, I WILL BE BACK MANY TOMORROW
OR LATER ON TODAY, WHAT TRIGGERS ANY INDICATION THAT THE DIVISION SHOULD SAY
ANYTHING ABOUT SAVE HAVEN. T. GARY MITCHELL: WHAT TRIGGERS IT IS
WHEN THE DIVISION WORKERS CONCLUDE SHE IS NOT COMING BACK WAYNE WAEN THE
DID THE DIVISION WORKERS CONCLUDE THAT SHE WAS NT COMING BACK WHEN THEY NEVER HAD
CONTACT WITH HER, THEY TRIED CALLING HER, TRIED DIFFERENT PHONES, DIDN'T
ANSWER, TRIED AULG THE GRANDMOTHER'S PHONE, DIDN'T EXIST, WENT TO THE HOUSE, IT
DIDN'T EXIST SO AT THE TIME YOU'RE ASKING FOR THERE TO HAVE BEEN A BURDEN, THERE
WAS NO WAY FOR THE DIVISION TO HAVE FULFILLED THAT BURDEN. RIGHT
BEFORE THAT WHEN THEY DID HAVE CONTACT WITH THE MOTHER IT SEEMS LIKE THE MOTHER
CALLED THE DIVISION VOLUNTARILY AND SAID I WILL SEE YOU AT THIS ADDRESS
IN A COUPLE HOURS I'M RUNNING OUT TO BY DIEP PERCENT AND I WILL SEE YOU THERE.
AT THAT POINT WOULD THE DIVISION HAVE SAID JUST SO YOU KNOW
THERE IS THIS OTHER OPTION, YOU DON'T HAVE TO CARE FOR THIS CHILD?
I'M JUST NOT CLEAR AS TO WHEN THE DIVISION SHOULD EVER SAY THAT. YOU'RE SAYING
WHEN THEY KNOW THE MOTHER DOESN'T INTEND TO RETURN BUT HERE THEY ONLY KNEW THAT
WHEN THEY HAD NO WAY TO CONTACT HER AND THEY TRIED TO CONTACT HER IN ALL THESE
DIFFERENT WAYS AN COULDN'T. T. GARY MITCHELL: I FOLLOW THE FACT
PATTERN THAT YOU'RE SAYING NOW JUSTICE, I THINK THE TRIGGER, IF WE WANT
TO CALL IT ON THAT ON PROVIDING INFORMATION SHOULD BE READILY AVAILABLE TO CERTAINLY
WHEN THE DIVISION COMES OUT AND THERE IS A PROBLEM THAT IT RECOGNIZES.
JUSTICE WAINER APTER: I WASN'T INTENDING TO SET OUT A FACT
PATTERN I WAS TRYING TO ADHERE TO THE RECORD. IF I WAS WRONG I WOULD LOVE FOR
YOU TO CORRECT ME. WHEN IN THE SPECIFIC FACTS OF THIS CASE
SHOULD THE DIVISION HAVE SAID SOMETHING AND WHAT SHOULD THEY HAVE SAID.
T. GARY MITCHELL: I THINK WHEN THEY PUT A HOLD ON THE BABY.
WHEN THEY SAID TO THE MOTHER -- NOT ONLY IS IT UNCLEAR WHAT YOU MAY WANT, BUT
WE'RE NOT LETTING YOU TAKE THIS BABY HOME UNTIL WE DO THE EVALUATIONS, THE
INVESTIGATION, THE ASSESSMENTS THAT WE ARE NOW DEMANDING YOU DO.
JUSTICE PATTERSON: ISN'T IT VERY FORESEEABLE THAT PLAY THAT OUT, SHE'S -- SHE
LISTENS TO THIS, SHE HEARS THERE IS A LAW, SAK SAFE HAVEN ACT, SHE HAS JUST HAD
A BABY, THERE WOULD BE AN ARGUMENT IN A PROCESS TOWARDS TERMINATION OF PARENTAL
RIGHTS OR PERHAPS AFTERWARD WHERE SHE SAYS I HAD NO INTENTION OF -- I KNEW
I NEEDED HELP. AND ALL OF A SUDDEN WE'VE GOT OFFICIALS FROM THE STATE OF NEW JERSEY
TELLING ME ABOUT A SAFE HAVEN ACT, ABOUT LEAVING AND TERMINATION OF PARENTAL
RIGHTS AND I WAS IN SUCH A VULNERABLE POSITION THAT I JUST WENT AHEAD AN AGREED
WITH THAT AND THEN A PROCESS BEGAN THAT ENDED WITH TERMINATION OF PARENTAL
RIGHTS. I THINK THERE IS A -- WE HAVE GOT TO CAREFULLY THINK
ABOUT DO WE REALLY WANT THE DIVISION IN THE THOUSANDS OF CASES WHERE THEY ARE CALLED
IN TO BE STARTING TO ADVOCATE FOR SAFE HAVEN LAWS WHICH ENDS UP IN TERMINATION? T. GARY MITCHELL: YOUR HONOR, I DON'T THINK
ALTHOUGH THAT IS HOW THE DIVISION HAS COUCHED OUR RECOMMENDATION.
OUR RECOMMENDATION IS SIMPLY PROVIDING INFORMATION. IT CAN BE AS SIMPLE AS A
BROCHURE. THIS WOMAN SHOULD NOT HAVE GONE SEVEN MONTHS INTO A PROSECUTION
UNDER TITLE 9 AND SHE DID CHILD CARE WORK BEFORE THEN, THAT WOULD ROB HER OF HER
EMPLOYMENT OPPORTUNITIES. THE COURT: LET'S STAY WITH THE
FIRST TWO DAYS AN I WANT YOU TO ASSUME THE FACTS THAT MAY OR MAY NOT HAVE
TWO VERSIONS ARE TRUE AND SOME OF THEM WE'VE TALKED ABOUT SO FAR YOU HAVE A PARENT
WHO HAS APPLIED FOR BENEFITS. YOU HAVE A PARENT WHO HS AGREED TO A HOME
INSPECTION, A SUBSTANCE ABUSE EVALUATION WHO HAS SAID SHE'S GOING OUT TO PURCHASE
SUPPLIES FOR THE BABY. IS THERE AMBIVALENCE BASED ON THAT SET OF
FACTS THAT WOULD WARRANT THE DIVISION PROVIDING INFORMATION?
T. GARY MITCHELL: CHIEF JUSTICE, ALL I CAN SAY THAT'S WHAT THE DIVISION CONCLUDED.
JUSTICE WAINER APTER: THE DIVISION, AGAIN, CONCLUDED IT
AFTERWARDS. WE'RE HAVING AN ISSUE WITH THE TIME. IT SEEMS LIKE YOU'RE SAYING
THAT THE DIVISION CONCLUDED IT AT A TIME WHEN THEY COULD NOT HAVE PROVIDED THE
INFORMATION; THAT'S WHY WE'RE TRYING TO ASK WHEN SHOULD THE INFORMATION HAVE BEEN
PROVIDED. IF IT WAS ON THE FIRST DAY, YOU JUST MENTIONED WHEN THE HOSPITAL
PLACED A HOLD. FROM MY UNDERSTANDING OF THE RECORD THAT WAS THE DAY THE CHILD WAS
BORN AND AT THAT POINT THE MOTHER HAD SAID THAT SHE WAS ON FOOD STAMPS, HAD APPLIED
FOR WIC, HAD THE ESSENTIALS THE CARE FOR THE CHILD, HAD SUPPORT FROM THE
GRANDMOTHER AND FRIENDS, HAD APPROPRIATE SLEEPING ARRANGEMENTS, ETC.
AM I GETTING THAT WRONG? T. GARY MITCHELL: TO A CERTAIN EXTENT,
IT'S CONFLATED OR PUSHED TOGETHER SOMEWHAT. I DON'T THINK ALL THAT CAME
OUT IN THE FIRST DAY. THE HOSPITAL DIDN'T PLACE THE HOLD. THE DIVISION PLACED
THE HOSPITAL HOLD. THE DIVISION SAID YOU'RE NOT GOING ANYWHERE. THIS BABY
ISN'T COMING HOME WITH YOU WHEN YOU'RE DISCHARGED. WHEN THE DIVISION
DOES THAT AND THEN WHEN THE FURTHER COMMUNICATION -- AND THERE WERE MEANS -- THE
DIVISION HAD MEANS TO COMMUNICATE WITH HER. SHE WASN'T PICKING UP THE PHONE
REGULARLY, BUT CERTAINLY, THERE IS THE ABILITY TO LEAVE A MESSAGE, TO JUST GET
INFORMATION. ALL WE'RE ASKING IS WHEN THERE ARE SIGNS OF AMBIVALENCE THAT
WILL LEAD DIVISION WORKERS AN SUPERVISORS TO SIX OR SEVEN DAYS AFTER A CHILD'S
BIRTH TO CONCLUDE THAT A PARENT HAS ABANDONED THIS CHILD, CERTAINLY IN THOSE
CIRCUMSTANCES THERE IS A WAY TO GET INFORMATION TO THAT WOMAN THAT SAYS YOU HAVE
OPTIONS IN NEW JERSEY. JUSTICE PATTERSON: YOU HAD A PHONE NUMBER
AND NOBODY IS PICKING UP. T. GARY MITCHELL: MESSAGES CAN BE
LEFT; THAT'S HOW THEY ULTIMATELY FOUND HER AN CONTACTED HER.
FRANKLY, WHAT OCCURRED I THINK JUSTICE PATTERSON ANSWERS YOUR QUERY. THEY DID
CONTACT HER. IN FACT, THEY PROSECUTED HER. THERE WAS CERTAINLY INFORMATION
THAT COULD HAVE BEEN PROVIDED WITHIN THAT FIRST 30 DAYS BECAUSE THAT'S WHAT THE
SAFE HAVEN ACT SAYS, WITHIN THE FIRST 30 DAYS IF A CHILD IS DELIVERED IN
A SAFE PLACE. JUSTICE SOLOMON: I HAVE TWO QUESTIONS.
T. GARY MITCHELL: YES. JUSTICE SOLOMON: ARE YOU RELYING
SOLELY ON THE AFFIRMATIVE DEFENSE OF THE SAFE HAVEN ACT AND IF SO I HAVE
ONE OTHER QUESTION, OR ARE YOU RELYING ON THE ERROR IN FINDING ABUSE AN NEGLECT.
T. GARY MITCHELL: I THINK BOTH YOUR HONOR.
JUSTICE SOLOMON: LET ME START WITH THE SAFE HAVEN ACT. ONE OF THE REQUIREMENTS
OF THE ACT AT THE TIME, NOT PRESENTLY, BUT ONE OF THE PRIOR ACTS, IS IT REQUIRES
THAT THEY DO NOT EXPRESS AN INTENT TO RETURN FOR THE CHILD. BASED ON EVERYTHING
IN THE RECORD, ARE YOU STILL ARGUING THAT SHE DID NOT EXPRESS AN INTENT TO
RETURN FOR THE CHILD. T. GARY MITCHELL: YES AND I THINK THAT'S
DOCUMENTED. JUSTICE SOLOMON: SHE NEVER USED THOSE WORDS.
IN HER CONDUCT AT THE TIME SHE LEFT THE HOSPITAL DOES THAT SUPPORT HER EXPRESSION
OF AN IN TEVENT NOT TO RETURN FOR THE CHILD? T. GARY
MITCHELL: YOUR HONOR, WE WEREN'T THERE. WHAT WE CAN RELY UPON IS THE RECORD.
THE RECORD ON PAGE 102 SAYS IN THEIR CONCLUSIONS, THEY SAY THERE IS A
PREPONDERANCE OF EVIDENCE THAT MY CLIENT LEFT THE HOSPITAL AFTER HER DISCHARGE WITH
NO APPARENT INTENTION TO RETURN. JUSTICE SOLOMON: I GET THAT.
JUSTICE WAINER APTER: WHEN WAS THAT WRITTEN?
T. GARY MITCHELL: I BELIEVE IT OCCURRED SIX DAYS AFTER THE CHILD'S BIRTH.
JUSTICE SOLOMON: I GET THAT. THEY OBVIOUSLY WENT THROUGH ALL THESE STEPS
TO TRY TO GET A HOLD OF HER AND FIND OUT WHAT WAS IN PLACE AN THEY COULDN'T
CONTACT HER. THAT'S SIX DAYS LATER. TO YOUTH THE AFFIRMATIVE DEFENSE OF THE SAFE HAVEN
ACTING, YOU NEED NOT EXPRESS, YOU MUST NOT EXPRESS AN INTENT TO RETURN FOR
THE CHILD. AT THE TIME SHE LEFT THE CHILD IN HAD THE HOSPITAL, ARE YOU STILL ARGUING
THAT SHE DID NOT EXPRESS AN INTENT TO RETURN FOR THE CHILD AT THAT TIME?
HAD. T. GARY MITCHELL: YES, YOUR HONOR. I WOULD SAY, RESPECTFULLY
THE -- JUSTICE SOLOMON: AT THAT TIME, BASED ON WHAT?
T. GARY MITCHELL: MY ANSWER I THINK WAS PERHAPS UNCLEAR IN ONE RESPECT.
SINCE THEY ABANDONED THE ABANDONMENT CLAIM WE DON'T REALLY NEED THE AFFIRMATIVE
DEFENSE. I AM SAYING HER ACTIONS WERE CONSISTENT WITH THAT. IN FACT THAT'S
PROBABLY WHY AFTER THE DISCUSSIONS ABOUT THE AFFIRMATIVE DEFENSE BETWEEN
DEFENSE COUNSEL PRIOR TO TRIAL THEY ABANDONED THE ABANDONMENT CLAIM AND SWITCHED
AND MOVED TO A TITLE 9 PURE NEGLECT CLAIM RATHER THAN ABANDONMENT.
JUSTICE SOLOMON: WHY ARE YOU STILL PURSUING THE AFFIRMATIVE DEFENSE TO ABANDONMENT
IF THEY'VE ABANDONED THAT CLAIM. T. GARY MITCHELL: I THINK
IT INFORMS -- IT SHOULD INFORM WHAT IS NECESSARY FOR -- JUSTICE
SOLOMON: LET ME GET AWAY FROM THE INFORMATION THAT IT PROVIDES AND STEAL
SOMEBODY ELSE'S QUESTION. HOW DO YOU ATTACK THE FINDING OF ABUSE
AND NEGLECT? WHAT ABOUT THAT FINDING WAS ERROR?
T. GARY MITCHELL: I THINK THERE IS NO IMMINENT DANGER, WHICH IS A REQUIREMENT
UN THIS COURT'S CASE LAW. THERE WAS NO SUBSTANTIAL RISK OF HARM. THERE WAS
NO PARENTAL -- CULL ABDOMINAL PARENTAL NEGLECT IN TERMS OF GROSS NEGLIGENCE. THERE IS
NO HARM TO A CHILD. WHERE THERE IS NO HARM WE HAVE TO LOOK AT SUBSTANTIAL
RISK AND EMINENT DANGER. HERE -- AND THAT'S WHY I USE -- JUSTICE
SOLOMON: ISN'T THAT YOUR BETTER ARGUMENT THAN PARSING THE STATUTE AND TRYING TO
EVALUATE THE TIME LINES AN COMMUNICATIONS? ISN'T YOUR BETTER
ARGUMENT THEY SIMPLY DON'T HAVE EVIDENCE OF ABUSE AN NEGLECT OF THE CHILD.
T. GARY MITCHELL: YOU ARE ABSOLUTELY CORRECT; THAT'S FRANKLY THE FIRST
ARGUMENT BOTH IN OUR APPELLATE DIVISION BRIEFS AN IN THE PETITIONS FOR
CERTIFICATION AN IT'S IN OUR QUESTION PRESENTED THAT THE TITLE 9 ISSUE IS FIRST
AN FOREMOST BECAUSE THE EVIDENCE WAS SIMPLY LACKING TO SHOW THE ELEMENTS, THE
STATUTORY ELEMENTS OF THAT -- OF THAT STATUTE. CHIEF JUSTICE
RABNER: QUESTIONS ANYONE? ANYTHING YOU WOULD LIKE TO ADD?
T. GARY MITCHELL: YOUR HONOR, I THINK WE'VE COVERED IT AN I THINK JUST
SOLOMON'S QUERY TO ME AT THE END REALLY SUMMED UP WHERE OUR ARGUMENT L BEGAN NAMELY
THAT THIS IS A FAILURE OF PROOF ON THE TITLE 9 CLAIM ITSELF AND THE ISSUE
INVOLVING THE SAFE HAVEN ACT IS SIMPLY ONE THAT I THINK INFORMS THAT WHAT THIS
WOMAN DID WAS TO PROVIDE THE SAFEST POSSIBLE ENVIRONMENT FOR DELIVERING
A CHILD THAT SHE DID NOT WANT TO BE RESPONSIBLE FOR. THE
COURT: THANK YOU. T. GARY MITCHELL: THANK YOU.
THE COURT: MISS LIN. MOLLY K.C. LINHORST: MAY IT PLEASE THE
COURT, THERE ARE TWO POENTS I'D LIKE TO MAKE. FIRST, THAT THERE IS NO WAY TO FIND
AN ABUSE AND NEGLECT HERE THAT RISES TO THE LEVEL OF TITLE 9. REGARDLESS OF
WHETHER THE SAFE HAVEN ACT APPLIES, WHICH ACTUALLY GETS TO JUSTICE SOL'S POINT AND
SECOND THAT THE SAFE HAICH PROTECTIONS SHOULD INDEED APPLY HERE. TURNING FIRST
TO THE ABUSE AN NEGLECT PIECE, AS COUNSEL SAID, IT'S CLEAR IN THE STATUTE
THAT THERE NEEDS TO BE IMPAIRMENT OR IMMINENT DANGER OF IMPAIRMENT AN WE DO NOT
HAVE EITHER OF THOSE HERE. THE DIVISION SIMPLY HAS NOT SUBSTANTIATED
IMPAIRMENT. THE AGENCY AND THE LOWER COURTS MERELY NAME THE CONSEQUENCES THAT
FLOWED FROM WHAT I WILL CALL BETH'S DECISION TO SAFELY LEAVE HER CHILD IN
THE HOSPITAL BUT DOESN'T TAKE THE NECESSARY NEXT STEP TO CLAIM THAT THOSE EXTRA
STEPS IN THE HOSPITAL OR SHORT TERM STAY WITH THE RESOURCE FAMILY SHOW THAT
THIS CAUSED IMPAIRMENT OR PUT THE CHILD IN IMMINENT DANGER OF IMPAIRMENT. AND
A L PROVIDES A GREAT EXAMPLE OF THIS CASE, ALTHOUGH THIS A A NEW, TESTED POSITIVE
UPON HER BIRTH FOR COCAINE, THERE WAS THAN ENOUGH EVIDENCE TO SHOW IMPAIRMENT AND
THE DIVISION HAD NOT PRESENTED THE EVIDENCE NECESSARY TO SHOW IMPAIRMENT
OR DANGER OF -- OR IMMINENT DANGER OF IMPAIRMENT. NOW, OF COURSE, A
POSITIVE AMERICA CONE YAN TEST FOR COCAINE FOR A CHILD WHO WAS LEFT IN A HOSPITAL
ARE NOT IDEAL CIRCUMSTANCES FOR ANY PARENT OR NEWBORN IN OUR STATE, BUT
DCPP ISN'T HERE TO MAKE VALUE STATEMENTS. THEY ARE HERE TO FOLLOW THE STATUTE
AN THE STATUTE REQUIRES EVIDENCE OF IMPAIRMENT. LOOKING TO
THE CASE LAW THAT EX EGS I SEE. S EXAMINING TITLE 9, THERE AREN'T
ANY SIMILAR CASES SUGGESTING THAT A SHORTER STAY IN THE HOSPITAL OR WITH
A RESOURCE FAMILY CONSTITUTE IMPAIRMENT UNDER TITLE 9, ME YEAH, THE CHILD, WHO
AAM REFERRING TO AS ME YEAH HERE DID NOT FACE ANY HARM BUT THE COURTS FOUND
THEY CONSTITUTE IMPAIRMENT MENT. LET'S LOOK FOR EXAMPLE AT THE CHILD
IN G S V DIEFS FIS WHO WAS GIVING 78 TIMES THE MEDICATION PRESCRIBED THAT
REQUIRED IN. IN, SUFFICIENT FOE INDICATION OR THE INFANT IN
DCPP K G WHO WAS REGULARLY LEFT ALONE WITH AN OLDER BROTHER WHO DIDN'T HAVE THE
COGNITIVE SKILLS TO PROPERLY CARE FOR THE CHILD. ME YEAH DID NOT EXPERIENCE ANYTHING
LIKE THIS AND IF YOU LOOK AT THE LANGUAGE OF THE STATUTE, ME YEAH WAS NOT
AT RISK OF ANY OF THE HARMS THAT ARE ENUMERATED THERE. WHILE
SHE WAS AT THE HOSPITAL, SHE HAD FOOD, SHE WAS CLOTHED. SHE HAD SHELTER. SHE
WOULD GET WHATEVER NECESSARY MEDICAL CARE SHE NEEDED BECAUSE SHE WAS IN
A HOSPITAL SETTING AN UNDER THE CARE OF MEDICAL PROFESSIONALS SHE WOULD NOT BE
HARMED OR MRAGSED AT SUBSTANTIAL RISK OF HARM. SIMPLY PUT THERE IS
NO EVIDENCE OF IMPAIRMENT HERE THAT RISE ES TO TITLE 9 TO JUSTICE SOLOMON'S
POINTS. NOW TURNING TO HOW THE SAFE HAVEN ACT IMPACTS THIS
CASE, WITHOUT EVEN TALKING ABOUT HOW THE ACT MAY OR MAY NOT DIRECTLY APPLY HERE,
THE LOGIC OF THE ACT MAKES CLEAR THAT WHAT VESTED HERE CANNOT QUALIFY AS ABUSE
AN NEGLECT. IN FACT, AS COUNSEL STATED, BETH DID THE VERY
THING THAT THE ACT WANTS PARENTS TO DO, LEAVE A NEWBORN IN A SAFE LOCATION DESIGNATED
BY THE LEGISLATURE THAT CAN PROVIDE THE NECESSARY CARE AND WALK AWAY.
IT WOULD BE NONSENSICAL TO DETERMINE THAT THE VERY ACTS THE LEGISLATURE ENCOURAGES
PARENTS TO DO IN ORDER TO AVOID NEGLECTING THE CHILD CAN QUALIFY AS ABUSE
OR NEGLECT. IN FACT, WHAT BETH DID MAY HAVE PREVENTED
IMPAIRMENT. NOW, TURNING TO THE APPLICABILITY OF THE ACT, THERE
HAS BEEN SOME DISCUSSION OF BETH'S WORDS, HER INTENT TENT EARLIER BEFORE SHE DIDN'T
COME AND RETURN FOR THE CHILD. I WANT TO EMPHASIZE TWO THINGS.
FIRST, THERE IS NO REQUIREMENT FOR ANY SPECIFIC AFFIRMATIVE INDICATION THAT SHE
OR ANYONE IN HER POSITION IS AVAILING THEMSELVES OF THE ACT. AS
WE DISCUSSED THE LAW ONLY LOOKS TO WHETHER A PERSON DID NOT EXPRESS AN INTENT TO
RETURN. AND THERE SHOULDN'T BE ANY SORT OF AFFIRMATIVE REQUIREMENTS OR
ANY SORT OF MAGIC WORDS HERE CONSIDERING THE PHYSICAL AND EMOTIONAL CONTACTS IN
WHICH A PERSON JUST GAVE BIRTH. THE LEGISLATURE MADE THIS CHOICE
INTENTIONALLY. THEY WANTED TO MAKE SURE THAT SAFE HAVEN WOULD BE EFFECTIVE
IN PREVENTING NEGLECT AN HARM SO THEY DIDN'T WANT A HIGH THRESHOLD.
THE DIVISION POINTS TO BETH STATEMENTS MADE PRIOR TO LEAVING THE CHILD. THE
ONLY THING SHE DID WAS HAVE A CONVERSATION WITH DCPP WHEN DCPP CAME TO ASK
QUESTIONS OF HER; THAT'S IT. WE CAN IMAGINE ANOTHER SCENARIO IN WHICH
A MOTHER MADE THE SAME STATEMENTS AND LEFT WITH THE CHILD OR CAME BACK,
TOOK THE CHILD BACK HOME AND THEN TWO DAYS LATER RETURNED TO THE HOSPITAL AN LEAVES
THE CHILD THERE. THAT DOESN'T MEAN THAT HER PRIOR STATEMENTS NEGATE THE
FACT THAT SHE IS AVAILING HERSELF OF THE ACT. JUSTICE PATTERSON:
LET ME ASK YOU WHAT I ASKED MR. MITCHELL AND THAT IS, WHAT IS THE DIVISION'S
OBLIGATION WHEN THEY ARE HAVING -- THERE IS THIS HOLD ON THE BABY, THERE IS AN ISSUE,
BUT THERE ARE CONVERSATIONS THAT HAVE TO DO WITH FUTURE CARE BY THE PARENT? LIN.
MARY M. MC MANUS-SMITH: MOLLY K.C. LINHORST:
SURE, WOULD NECESSITY BE BRINGING UP THE SAFE HAIN ACT I THINK THERE ARE
COUNTERVAILING ISSUES THERE. MOLLY K.C. LINHORST: I I UNDERSTAND
YOU. BY NO MEANS DO YOU WANT TO TERMINATE PARENTAL RIGHTS WHEN THEY SHOULDN'T
BE TERMINATED. HOWEVER, I AGREE WITH COUNSEL THAT IT CAN'T BE
HURT AS LONG AS IT'S DONE SENSITIVELY TO EDUCATE ABOUT THE ACT GENERALLY BUT I
ALSO DON'T THINK YOU HAVE TO LOOK TO THOSE FIRST FEW DAYS. I THINK IN THIS CASE,
BECAUSE THIS IS REALLY ABOUT AN ABUSE AND NEGLECT FINDING.
JUSTICE PATTERSON: LET'S GO BACK BECAUSE THE CRITICAL DAY, THE CRITICAL COUPLE
OF DAYS HERE ARE IMMEDIATELY AFTER THIS BIRTH SO THEY ARE -- THERE IS A
REFERRAL, THEY ARE THERE, THEY ARE HAVING CONVERSATIONS WITH HER.
IS IT YOUR CLIENT'S POSITION THAT THEY SHOULD BE SAYING WE WANT TO TALK TO YOU
ABOUT SAFE HAVEN, WHICH IS A, YOU KNOW, A WONDERFUL STATUTE THAT ALLOWS
YOU TO WALK AWAY AND NOT CARE FOR THIS CHILD AS LONG AS THE CHILD IS BEING LEFT
IN A SAFE ENVIRONMENT AND THIS IS A SAFE ENVIRONMENT SO WE'RE HERE TO EDUCATE
YOU ABOUT THAT. MOLLY K.C. LINHORST: I MEAN, DEPENDING UPON
HOW IT'S WORDED I THINK IT'S FINE. THERE ARE REQUIREMENTS FOR THE DIVISION
TO ACTUALLY INCORPORATE PAMPHLETS ABOUT SAFE HAIN LAW AT PLACES LIKE HOSPITALS.
JUSTICE PATTERSON: CANCEL IT BEING PRESENT AT A HOSPITAL
IS VERY DIFFERENT FROM HAVING A CONVERSATION WITH A WOMAN WHO HAS LITERALLY
JUST GIVEN BIRTH AND IS TALKING ABOUT FUTURE CARE FOR HER CHILD ABOUT SAFE
HAVEN, WHO HAS GIVEN NO INDICATION WHATSOEVER THAT SHE'S NOT COMING BACK YET; THAT
HASN'T HAPPENED SO I THOUGHT I WAS HEARING FROM YOUR ESTEEMED COLLEAGUE HERE
WHO -- THAT THERE SHOULD HAVE BEEN A LITTLE TUTORIAL ABOUT SAFE HAVEN IN THIS SETTING
AN I AM SURPRISED TO HEAR THAT BECAUSE IT DOES CREATE AN OPPORTUNITY FOR
THE DIVISION TO MOVE VERY QUICKLY TO TERMINATION. MOLLY K.C.
LINHORST: THAT'S TRUE, BUT I THINK THERE IS A COUPLE POINTS TO THAT. ONE, IS
DIVISION IS THERE TO EDUCATE AN SUPPORT. I AM NOT CONVINCED THAT THEY HAD
TO HAVE SAID SOMETHING AT THAT MOMENT. I THINK IF THERE WERE INDICATORS, INDICATIONS
THAT MAYBE SHE WAS AMBIVALENT, THAT IT WOULD BE GOOD TO INFORM HER, BUT,
ALSO, I WANT TO MAKE CLEAR, THAT THERE ARE ALSO STEPS DOWN THE LINE WHAT SAFE HAVEN
IS IMPLICATED. JUSTICE PATTERSON: UNDERSTOOD. THAT'S A
LOT -- THAT TO ME, THERE IS A LOT MORE CLARITY THERE BUT I REALLY COULD SEE
AN ARGUMENT IN THE FUTURE, IF SOMEBODY LOSES PARENTAL RIGHTS THAT THE CHILD IS
LEFT, THEY HAVE NO CONTACT WITH THE CHILD THAT THEY HAVE NO IDEA -- THEY
THOUGHT THEY WERE BEING TOLD BY THE STATE OF NEW JERSEY THAT THEIR CHILD IS FWOEG
TO STAY IN THE HOSPITAL AN THEY ARE FWOEG TO LEAVE. I COULD SEE THAT ARGUMENT.
MOLLY K.C. LINHORST: RIGHT. JUSTICE PATTERSON:
SO VERY DIFFERENT FROM A PAMPHLET BEING AVAILABLE IN THE HOSPITAL.
MOLLY K.C. LINHORST: AM I CORRECT YOU'RE THINKING ABOUT THIS SEPARATE AN APART
FROM WHETHER OR NOT THEY BRING AN ABUSE OR NEGLECT CLAIM. JUSTICE
PATTERSON: WELL, IT IS A SUBISSUE HERE BECAUSE THE SUGGESTION IS THAT THE DIVISION
NEEDED TO BE INFORMING HER ON DAY 1 OR DAY 2 OF THIS AND THAT, TO ME, IS
SURPRISING. MOLLY K.C. LINHORST: I CERTAINLY WOULD AGREE
THAT THE DIVISION SHOULD BE INFORMING HER TO THE EXTENT THEY ARE ABLE TO GET IN
TOUCH HER OR FAMILY ONCE SHE DOESN'T RETURN TO THE HOSPITAL. MENT.
I ALSO THINK THAT PRIOR TO BRINGING ABUSE OR NEGLECT PROCEEDINGS AGAINST HER
THEY SHOULD BE ABLE TO IDENTIFY WHETHER OR NOT THIS IS A SAFE HAVEN CASE AND TO
EDUCATE HER AT THAT TIME IF SHE IS UNAWARE OF IT. L. JUSTICE
SOLOMON: I THOUGHT INITIALLY YOU WERE GOING TO SUGGEST, I GUESS I'M WRONG, THAT
WHENEVER A PARENT IS NOT PERMITTED TO LEAVE THE HOSPITAL WITH THE CHILD,
THEY SHOULD BE ASKED SPECIFICALLY, ARE YOU COMING BACK FOR THE KID, ARE YOU COMING
BACK FOR THE CHILD OR PERHAPS MORE DEFINITIVELY, WHEN DO YOU INTEND TO COME
BACK FOR THE CHILD. I THOUGHT THAT'S WHAT YOU WOULD BE ARGUING.
T. MOLLY K.C. LINHORST: I AM NOT INSURE IT WOULD
REQUIRE SUCH AN AFFIRMATIVE THING FOR THE HOSPITAL DO. JUSTICE
SOLOMON: WELL, THE DIVISION WAS INVOLVED FROM DAY 1. MOLLY K.C.
LINHORST: BUT WHEN THE MOTHER LEAVES THE HOSPITAL, I AM NOT SURE IF -- YOU KNOW,
I DON'T THINK THE DIVISION WAS THERE AT THAT EXACT TIME. MAYBE THE HOSPITAL
SOCIAL WORKER IS THERE. JUSTICE SOLOMON: OKAY. THE SOCIAL WORKER.
WHOEVER. IF THE MOTHER IS NOT PERMITTED TO LEAVE THE
HOSPITAL WITH THE CHILD, SHOULD THEY BE ASKED WHEN DO YOU INTEND TO RETURN WITH
THE CHILD OR DO YOU INTEND TO RETURN WITH THE CHILD? BECAUSE
NOW -- THEN YOU'RE GETTING INTO A REALLY MORE DIFFICULT SITUATION IF YOU WAIT UNTIL
YOU ATTEMPT TO CONTACT THE PARENT, YOU'RE UNABLE TO DO SO, YOU INFER FROM
THAT THAT THERE IS AN ABANDONMENT AN THEN THE DIVISION HAS GOT TO MAKE A DECISION.
I THINK JUSTICE PATTERSON POINTED IT OUT PRETTY WELL. MOLLY K.C.
LINHORST: I DON'T THINK IT'S NECESSARY TO PUT THAT AFFIRMATIVE REQUIREMENT THERE.
JUSTICE SOLOMON: I THOUGHT THAT'S WHAT YOU WOULD BE ARGUING
AN APPARENTLY YOU ARE NOT; OKAY. JUSTICE FASCIALE: WHAT LEGAL BASIS
DOES THIS COURT HAVE TO IMPOSE SUCH A DUTY ON THE DIVISION? IN
OTHER WORDS, WHY SHOULDN'T IT BE SOMETHING THAT SHOULD BE IN A STATUTE OR REGULATION,
ESPECIALLY SINCE THE REGULATIONS ARE QUITE DISMISSALED ALREADY.
MOLLY K.C. LINHORST: DETAILED ALREADY. MOLLY K.C. LINHORST:
ARE YOU REFERRING TO THE REQUIREMENT TO EDUCATE. JUSTICE
FASCIALE: THE REQUIREMENT TO DISCLOSE TO THE PARENT IMMEDIATELY, THAT IS THE DETAIL
ABOUT SAFE HAVEN HIN. MOLLY K.C. LINHORST: I THINK A LOT OF
IT CAN BE IMPLICITLY READ INTO THE STATUTE AN REGULATIONS INSOFAR AS THEY ARE
REQUIRED TO EDUCATE THE PUBLIC. JUSTICE FASCIALE: I'M TALKING ABOUT,
WE'VE BEEN FOCUSING ON TIMING AND WHEN SHOULD THIS BE DONE. IS
THAT A QUESTION FOR US OR IS THAT A QUESTION THAT SHOULD BE DIRECTED TO THE OTHER
BRANCHES. MOLLY K.C. LINHORST: I COULD SEE A WHY YOU MIGHT
WANT TO DEFER TO THE LEGISLATURE. JUSTICE FASCIALE: I AM JUST ASKING.
MOLLY K.C. LINHORST: I THINK THE DECISION -- THEY ARE OFTEN
IN POSITIONS WHERE THEY HAVE TO KIND OF FEEL ALL OF THIS OUT WHERE THEY HAVE TO
LOOK AT LANGUAGE AN CONTEXT IN WHAT IS A VERY COMPLICATED TIME. IT SEEMS
VERY DIFFICULT. I REALLY THINK THAT THAT IS MORE LIKELY SOMETHING THAT THEY SHOULD BE
DOING, THE DIVISION, WHAT -- IN TERMS OF DETERMINING WHEN THEY SHOULD BE
KAETH FOLKS ABOUT A SAFE HAVEN ACT. WHAT I CERTAINLY THINK THERE IS
A BRIGHTER LINE ABOUT IS PRIOR TO CHARGING A PERSON WITH ABUSE AN NEGLECT
THEY NEED TO BE TAKING A STEP BACK AN DETERMINING WHETHER OR NOT THIS QUALIFIES
AS A SAFE HAVEN SITUATION. MAYBE IN THAT CASE, THAT WOULD BE
THE VERY KIND OF LAST PROTECTION, KAETH FOLKS WHEN THEY MAY BE PURSUED FOR
ABUSE AN NEGLECT. I THINK THAT'S A MUCH CLEARER LINE HERE TO THE EXTENT WE'RE
LOOKING FOR A SPECIFIC TIME WE CAN POINT TO CLOP A LOT OF STATIC ON THE FEED
CLOP. MOLLY K.C. LINHORST: I ALSO THINK IN INTERPRETING
THE SAFE HAVEN ACT, IT WAS CLEARLY THE INTENTION OF THE LEGISLATURE TO ENSURE THAT
PARENTS DON'T FEAR GETTING THE MEDICAL HELP THEY NEED, HAVING A BABY IN
THE SAFE HOSPITAL AN RATHER THAN PERHAPS THERE BEING A CASE OF ABUSE OR NEGLECT
OF A CHILD WHEN THE PARENTS LEAVE THEM SOMEWHERE ELSE THAT THEY ARE
ENCOURAGED AND INFORMED TO LEAVE THEIR CHILD IN A DESIGNATED SAFE HAVEN LOCATION
AND TO HAVE SOMEONE PURSUED FOR ABUSE AN NEGLECT FOR DOING EXACTLY THAT IS
LIKELY TO DETER OR COULD POTENTIALLY DETER OTHERS FROM TAKING ADVANTAGE OF THE ACT
AN COULD UNDER CUT THE EFFECT OF THE ACT. SO, FINDING THE ACT
INAPPLICABLE HERE AND SUBJECTING BETH TO AN ABUSE AN NEGLECT FINDING, WE WOULD
RISK UNDERMINING THE PURPOSE OF THE SAFE HAVEN ACT WHICH THE LEGISLATURE
DEEMED SO IMPORTANT THAT IT WOULD BE WORTH IT AS LONG AS ONE CHILD'S LIFE IS SAVED.
IN CASE THE COURT HAS ANY OTHER QUESTIONS, WE URGE YOU TO
REVERSE. CHIEF JUSTICE RABNER: THANK YOU, MS. MC
MANUS-SMITH. MARY M. MC MANUS-SMITH: CHIEF
JUSTICE RABNER: THERE IS SOME WRESTLING WITH THE MICROPHONE, I DON'T KNOW IF 'IT
IS ONE OF US, ANY INSIGHT? JUST TRY TO KEEP AN EYE OUT FOR
IT. MARY M. MC MANUS-SMITH: YOUR HONOR, THAT'S A QUESTION
I CAN'T ANSWER. JUSTICE PATTERSON: WE CAN'T EITHER.
MARY M. MC MANUS-SMITH: I WANTED TO BEGIN JUST TO APPLY TO SOME OF THE QUESTIONS
THAT HAVE BEEN ASKED PREVIOUSLY OF COUNSEL. TO START WITH
THE QUESTION REGARDING SHOULD THE DIVISION HAVE A DUTY TO THIS CASE OR MORE BROADLY
ANOTHER CASE INFORM PARENTS THEY ARE INVESTIGATING -- PARENTS OF NEW BORNS
THAT THEY ARE INVESTIGATING ABOUT SAFE HAVEN AND L S A J HAD A LONG HISTORY BEING
INVOLVED WITH THE PUSH TO UM THE SAFE HAIFRP PRACTICE THAT THE DIVISION
PRACTICED FOR MANY YEARS THAT WERE ULTIMATELY DEEMED TO BE PRIMARILY MOSTLY COERCIVE
SO WE HAVE A SIGNIFICANT CONCERN ABOUT -- AS JUSTICE PATTERSON SUGGESTED
WITH THE DIVISION BEING TASKED WITH EXPLAINING TO NEWBORN PARENTS ABOUT SAFE HAVEN.
ON THE OTHER HAND, AS OUR BRIEF INDICATED, MEDICAL PROVIDERS
REPORT TO THE DIVISION ABOUT 3.4 PERCENT OF CHILDREN BORN EVERY YEAR; THAT'S A
LOT. THAT IS A SIGNIFICANT NUMBER. AND WHEN YOU PILE ON TOP OF THAT THAT
CHILDREN UNDER ONE YEAR OLD ARE THE LARGEST AGE COMPANY HORT OF CHILDREN IN FOSTER
CARE CONSISTENTLY OVER THE YEARS AND CAN BE AS MUCH OF HALF OF THE CHILDREN
IN FOSTER CARE. IT IS IMPORTANT TO ADDRESS THIS AND I WOULD
SUGGEST THAT RATHER THAN A CASEWORKER, A PERSON BEING RESPONSIBLE TO EDUCATE THE
PARENT, IT WOULD BE MUCH MORE APPROPRIATE TO SUGGEST THAT THERE IS A D C S STATUTORY
DUTY TO EDUCATE THE PUBLIC ABOUT SAFE HAVEN SHOULD BE COORDINATED WITH THEIR
DUTIES TO INVESTIGATE ABUSE OR NEGLECT AN THEY SHOULD INVESTIGATE, IN THEIR PROTOCOL
A CHECK BOX ABOUT WHETHER THE PARENT HAS BEEN INFORMED AND THAT CAN BE CHECKING
WITH THE HOSPITAL SOCIAL WORKER, IT CAN BE DO YOU SEE A POSTER IN THEIR ROOM, BUT
THEY NEED TO INVESTIGATE A LITTLE BIT ABOUT HAS THIS PARENT RECEIVED THIS
INFORMATION. CHIEF JUSTICE RABNER: I APPRECIATE THAT YOU'RE
HERE AS AN AMICUS WITH THOUFL SUGGESTIONS ON A LAW THAT IS IMPORTANT, BUT IS IT
YOUR POSITION THAT IF THE COURT FINDS THERE WAS NO HARM HERE AND NO ABUSE AN
NEGLECT THAT IT SHOULD NONETHELESS PROCEED AND OFFER DETAILED GUIDANCE WITH RESPECT
TO THE SAFE HAVEN ACT THAT WOULD NOT BE CENTRAL TO THE OUTCOME OF THE CASE?
MARY M. MC MANUS-SMITH: YOUR HONOR, THE COURT FREQUENTLY, EVEN WHEN
A CASE HAS BECOME MUTE OR FREQUENTLY MIGHT NOT BE THE RIGHT WORD, BUT CERTAINLY
THERE IS A LONG HISTORY OF THE JUDICIARY IN NEW JERSEY WHEN A CASE, EVEN
IF IT IS MUTE DECIDING AN ISSUE BECAUSE IT IS IMPORTANT FOR THE PUBLIC TO HAVE
THIS ISSUE RESOLVED AND GIVEN THE SHARE OF CHILDREN THAT THE DIVISION DEALS
WITH WHO ARE UNDER ONE, THE NUMBER OF NEW BORNS THEY ARE INVESTIGATING PRIMARILY
FOR SUBSTANCE ABUSE ISSUE RELATED TO THE PREGNANCY, I DO THINK IT WOULD BE
EXTREMELY HELPFUL FOR THE COURT TO HELP UNTANK L THIS KNOT THAT CLEARLY HAS LED
TO CONFUSION HERE. IT CLEARLY WOULD BENEFIT THE DIVISION. IT
WOULD BENEFIT FAMILIES THAT ARE INVESTIGATED. QUITE FRANKLY, IT COULD BENEFIT
THE HOSPITALS WHO DEAL WITH BOTH. JUSTICE PIERRE-LOUIS:
JUST SO I UNDERSTAND, IT IS LEGAL SERVICES POSITION THAT A DIVISION SHOULD NOT
BE INVOLVED IN BRINGING UP SAFE HAIVENL OR EDUCATING A NEW PARENT ABOUT
SAFE HAVEN, BUT INSTEAD SHOULD GENERALLY PROVIDE THE PUBLIC WITH INFORMATION AS
PART OF ITS USUAL DUTIES. MARY M. MC MANUS-SMITH: I'M ACTUAL
SAYING A LITTLE MORE. I THINK LARGELY YOU HAVE MY POSITION CORRECT. WE
ARE, HOWEVER, ADVOCATING THAT IN EVERY CASE IN WHICH A NEWBORN IS BEING INVESTIGATED
A CHILD NO MORE THAN 30 DAYS OLD, THE DIVISION, I BELIEVE, UNDER THOSE TWO
STATUTORY DUTIES, THE DUTY TO INVESTIGATE AND THE DUTY TO EDUCATE THE PUBLIC ABOUT
THIS STATUTE SHOULD BE REQUIRED TO INQUIRE AS TO WHETHER OR NOT THE PARENT HAS
INFORMATION. JUSTICE PIERRE-LOUIS: INQUIRE WITH.
MARY M. MC MANUS-SMITH: THE HOSPITAL, THE PARENT DIRECTLY, DID YOU RECEIVE
A BROCHURE ABOUT THIS. I MEAN THEY ARE COORDINATING WITH THE HOSPITALS
ROUTINELY. TO BE ABLE TO TELL THE HOSPITAL DON'T RELEASE THIS CHILD UNTIL WE GET
WHAT WE NEED, WHETHER THAT'S LAWFULLY AUTHORIZED OR NOT, THEY'RE COORDINATING
WITH THE HOSPITALS HERE AND TLGS NO REASON THEY CONDITION SAY OH, LISTEN,
SOCIAL WORKER, YOU KNOW, THEY HAVEN'T GOTTEN THIS INFORMATION, CAN YOU JUST LET
THEM KNOW WHEN YOU'VE PROVIDED THAT TO THEM. IN THE DOE CASE,
WE KNOW THAT THAT HOSPITAL PROVIDED NOT JUST A SOCIAL WORKER, BUT A SPANISH
SPEAKING SOCIAL WORKER WHO COULD PROVIDE THAT PARENT INFORMATION ABOUT SAFE HAICH
AND DID; THAT'S PART OF THE RECORD IN THAT CASE. THE SPANISH-SPEAKING HOSPITAL
SOCIAL WORKER PROVIDED INFORMATION TO THE PARENT ABOUT SAFE HAVEN. THE
PARENT THEN ACKNOWLEDGED, YES, THAT IS WHAT I WANT TO DO. AND THAT PROVIDED --
THAT MADE THE WHOLE THING EASIER FOR EVERYBODY. SHE UNDERSTOOD HER RIGHTS
AND SHE WAS ABLE TO EXPRESS DIRECTLY, VERBALLY THAT SHE WANTED THAT.
NOW, AS COUNSEL HAS ALREADY SAID, WE DO NOT BELIEVE A VERBAL ACKNOWLEDGMENT OF EXPRESSING
THESE RIGHTS IS REQUIRED, BUT I HOPE THAT'S HELPFUL IN GIVING SOME INSIGHTS
INTO THE NEED FOR THE INFORMATION AND SORT OF THE LIMITS OF THE DIVISION'S APPROPRIATE
ROLE THERE. CLOP STATIC PERSISTS CLOP. MARY M.
MC MANUS-SMITH: THE COURT ALSO ASKED ABOUT THE EXPRESSION OF -- THE LACK OF EXPRESSION
OF INTENT TO RETURN AND HOW THAT IS MEASURED. THE APPELLATE
DIVISION HERE CLEARLY HELD THAT PRIOR CONVERSATIONS ABOUT REARING A CHILD, ABOUT
PARENTING, ABOUT PARTICIPATING IN ASSESSMENTS AND ABOUT SECURING
SUPPLIES FOR THE BABY, THOSE PRIOR CONVERSATIONS NEGATED OR PRECLUDED THE
APPLICATION OF THE SAFE HAVEN ACT HERE. I THINK THAT IS NECESSARILY INCONSISTENT
WITH THE LEGISLATIVE INTENT. THAT IS, THE LEGISLATURE BOTH SAID A CHILD MUST BE
NO MORE THAN 30 DAYS OLD SO AN INFANT COULD BE 4 WEEKS, 29 DAYS, 30 DAYS AND
A PARENT -- UNLESS THE CHILD IS IN THE HOSPITAL THAT ENTIRE TIME WOULD LIKELY HAVE
BEEN ATTEMPTING TO PARENT THE CHILD DURING THAT TIME. IN ADDITION,
MOST OF THE SAFE HAVEN LOCATIONS REQUIRE THAT THE CHILD BE BROUGHT THERE, THE
CHILD BE BROUGHT TO A POLICE STATION, THE CHILD BE BROUGHT TO A FIRST AID
SQUAD. IN ORDER FOR THAT TO HAPPEN THE CHILD HAS TO HAVE LEFT THE HOSPITAL SO
THAT PARENT HAS TO HAVE DONE MORE THAN TALK ABOUT PARENTING AN THINK ABOUT
PARENTING AN TALK ABOUT GETTING BABY SUPPLIES, BUT ACTUALLY GET BABY SUPPLIES AN
TOOK THE CHILD HOME FROM THE HOSPITAL OR WHEREVER THEY WERE BORN. THIS IS
THE DIVISION THE LEGISLATURE HAD WHEN THEY DRAFTED THIS. I THINK IT'S CLEAR FROM
THE PLAIN LANGUAGE THAT THEY EXPECT THAT IN MOST CASES THE PARENT WILL HAVE
TAKEN THE CHILD HOME AND THEN BRING THE CHILD TO THIS OTHER LOCATION.
JUST TALKING ABOUT PARENTING IS SUBSTANTIALLY LESS THAN WHAT THIS PARENT DID.
BY SUGGESTING THAT WHAT THE PARENT SAID ON DAY 1 MEANS THAT
THE PARENT COULD NEVER LEAVE THIS CHILD AN WALK AWAY BECAUSE WHAT THEY SAID ON
DAY 1 THAT MEANS THEY'VE GIVEN UP SAFE HAVEN. IN THIS PARTICULAR CASE THEY
WERE NEVER TOLD ABOUT SAFE HAVEN BUT THEY'VE GIVEN UP THEIR RIGHT TO LEAVE AND WALK
AWAY AND LET'S ASSUME THAT MEANS SOMETHING OTHER THAN ... JUSTICE
PATTERSON: DO YOU READ THE APPELLATE DIVISION DECISION TO MEAN THAT IF THIS PARENT
DID WHAT THIS PARENT IS ALLEGED TO HAVE DONE WHICH IS HAVE A CONVERSATION
ABOUT CARE AND SUPPLIES AND SO FORTH, LEFT THE HOSPITAL WITH THE BABY THREE WEEKS
LATER TER AN THEN LEFT THE BABY AT A POLICE STATION, THE PARENT WOULD
SOMEHOW BE BARRED FROM INVOKING SAFE HAVEN. MARY M. MC MANUS-SMITH:
CLEARLY, THE FACT THAT THE DIVISION WAS INVOLVED IN THIS CASE AND THAT THEY
HAD IMPOSED THIS SORT OF INFORMAL HOSPITAL HOLD CREATES ALL KINDS OF PROBLEMS FOR
HOW I THINK HOSPITALS, AS WELL AS THE DIVISION TYPICALLY THINK OF SAFE HAVEN AS
WORKING. THAT IS, THIS PARENT HAD NO ABILITY TO LEAVE THE
HOSPITAL BECAUSE THE HOSPITAL BLANK WAS IN PLACE SO SHE COULDN'T DO CLOP TOO MUCH
STATIC TO RECORD CLOP. MARY M. MC MANUS-SMITH: SHE COULD NOT TAKE
THE BABY TO A FIRE STATION OR A POLICE STATION BECAUSE THAT WAS PREVENTED.
THE COURT: WOULD YOU FORGIVE ME FOR INTERRUPTING FOR A
SECOND, LET'S GO OFF THE RECORD. CHIEF JUSTICE RABNER: I AM CONCERNED
ABOUT THE LIVE STLEEM. (DISCUSSION OFF THE RECORD.)
CHIEF JUSTICE RABNER: WE'LL TAKE FIVE MINUTES OR TEN. (RECESS
10:51 A.M. TO. (TIME NOTED: 11:07 a.m.). THE COURT
CLERK: ALL RISE. CHIEF JUSTICE RABNER: WE WILL DO OUR BEST
TO SPEAK LOUDER I UNDERSTAND OUR MIEKS ARE A LITTLE SOFTER AND HOME FLEE THE STATIC
WILL BE LESS. MARY M. MC MANUS-SMITH: CHIEF JUSTICE, I WOULD
LIKE TO FINISH ANSWERING A COUPLE OF QUESTIONS THAT WERE RAISED. NORMALLY JUSTICE.
CHIEF JUSTICE RABNER: TIFR TO ASK YOU TO KEEP YOUR VOICE
UP, AS WELL. MARY M. MC MANUS-SMITH: I APPRECIATE THAT.
JUSTICE PATTERSON ASKED ABOUT THIS, SHE MADE THE STATEMENTS THAT SHE DID BUT DELIVER
THE CHILD TO A FIRE HOUSE OR A POLICE STIGS, WOULD THE PRIOR STATEMENTS HAVE
BEEN USED IN THE SAME WAY. JUSTICE PATTERSON: I WAS ASKING WHETHER
YOU READ THE APPELLATE DIVISION TO BE SOMEHOW SAYING THAT THAT WOULD BE
A WAIVER OF RIGHTS UNDERSTAND THE SAFE HAVEN ACT. MARY M. MC
MANUS-SMITH: I DON'T BROADLY AND, IN FACT, WE HAVE, I THINK A FOOTNOTE IN OUR BRIEF
WHICH SAYS WE QUESTION WHETHER THE DIVISION WOULD HAVE BROUGHT THIS CASE
AT ALL IF HE HAD HAD THE OPPORTUNITY TO WALK WITH THE BABY TO A POLICE STATION
OR AN EMERGENCY ROOM OR OTHERWISE DELIVER THE CHILD BASED ON THE SAME PRIOR
CONVERSATIONS. BUT, IN APPLYING IT HERE, BY LOOKING AT WHAT
SHE SAID PRIOR TO LEAVING THE HOSPITAL AND NOT RETURNING, IT ELIMINATES THE OPPORTUNITY
FOR HER TO CHANGE HER MIND, FOR HER TO MAKE THAT DECISION ON DAY 3 AND
PRESUME PLEA SHE COULD HAVE MADE THAT DECISION ON DAY 29 OR 30. SHE HAD A LOT OF
TIME STILL TO MAKE THAT DECISION. I DON'T KNOW WHETHER SHE
CAME IN TO THIS KNOWING BEFORE SHE GAVE BIRTH THAT SHE DIDN'T INTEND TO BRING
THE CHILD HOME OR WHETHER SHE LITERALLY MADE THAT CHOICE ON DAY 3, BUT BY RELYING
ON PRIOR CONVERSATIONS, AGAIN, WHICH ARE TYPICAL CONVERSATIONS OF PEOPLE WHO
SUBSEQUENTLY TRY TO PARENT AN THEN DELIVER THEIR CHILD TO A FIRE HOUSE, IT REALLY
NEGATED, I THINK, PART OF THE STATUTORY RIGHTS THAT THE PARENT HAS HERE.
AS TO DAY 3 -- OH, I'M SORRY, THERE WAS ONE OTHER QUESTION THAT WAS ASKED
THAT I WANTED TO MAKE SURE TO ANSWER. I WAS ASKED ABOUT THE
NEED TO ADDRESS THIS IF THE OTHER ISSUES RAISED WERE THE BASIS FOR THE DECISION
AND I WANTED TO POINT OUT THAT AS OF SEPTEMBER OF 2023, NEW JERSEY WAS ON TARGET
FOR THE YEAR OF 2023 TO HAVE MORE SAFE HAVEN CASES THAN IT HAS HAD IN ANY OF
THE PRIOR YEARS SINCE IT WAS IMPLEMENTED. THE POINT SIMPLY BEING THAT THIS IS
BECOMING A GROWING ISSUE SO TO THE EXTENT THIS IS A PUBLIC INTEREST ISSUE, IT IS
BECOMING MORE SO. SO AS OF DAY 3 I THINK THERE WAS NO
AMBIGUITY AS TO WHAT HER INTENT WAS; THAT IS, ON DAY 4 OR DAY 5 WHEN SHE DID NOT
RETURN. NOT ONLY WAS IT CLEAR, ULTIMATELY TO DEFENSE COUNSEL, BUT IT WAS CLEAR
TO THE DIVISION IN THAT THEY RAN TO COURT AND ARTICULATED THESE FACTS THAT
SHE LEFT AND ISN'T RETURNING AS THE BASIS FOR THEIR CLAIM.
JUSTICE MICHAEL NORIEGA: IS THERE A CUT OFF, COUNSEL FOR WHAT WE'RE LOOKING AT?
IS IT THE TOTALITY OF THE CIRCUMSTANCES AT THE TIME THE CHARGE
ISSUES? WHEN DO WE LOOK AT THIS IN TERMS OF THE SAFE HAVEN ACT.
MARY M. MC MANUS-SMITH: I THINK IT HAS TO BE IN TERMS OF THE
EXPRESSION OF THE INTENT TO RETURN IT HAS TO BE AT THE TIME. IT HAS TO BE AT THE TIME
THE CHILD WAS LEFT. QUITE FRANKLY, YOU KNOW, ACTIONS SPEAK LOUDER THAN
WORDS, THE INTENT NOT TO RETURN IS CLEAR BECAUSE SHE DIDN'T RETURN. THE REGULATION
THAT DESCRIBES THE HOSPITAL'S DUTY WERE MADE -- WE SEE THE CHILD THAT MAY
BE A SAFE HAVEN ACT THAT SAYS THAT IF THE INFANT IS BROUGHT TO THE HOSPITAL AND
THE PERSON WHO BRINGS THEM DEMONSTRATES BY ACTIONS OR IN WORDS THAT HE OR
SHE WISHES TO LEAVE THE INFANT BEHIND, I THINK THERE IS NOTHING MORE CLEAR THAN
ACTUALLY LEAVING THE CHILD BEHIND TO DEMONSTRATE THAT. THE
OTHER THING THAT I THINK IS A LITTLE INTERESTING IS THAT THE REGULATIONS AND
STATUTE BUILD IN A TIME FOR THE BLANK TO MAKE THAT DECISION; THAT IS, IN THE
REGULATIONS, WHEN A HOSPITAL RECEIVES A CHILD THAT MAY BE A SAFE HAIFRP CHILD,
THERE ARE SORTED OF TEN ACTIONS THEY ARE REQUIRED TO TAKE. ONE OF THEM -- THREE
UNDERSTAND 3 A:118, IS NO. 3 IS ADVISE THE DCPP ABUSE AN NEGLECT HOTLINE
IF IT APPEARS THE INFANT HAS BEEN ABUSED OR NEGLECTED AND THAT THEY ARE REQUIRED
TO DO IMMEDIATELY. GO DOWN TO NO. 6 AND IT SAYS, NOTIFY THE
DCPP SAFE HAVEN HOTLINE NO LATER THAN THE FIRST BUSINESS DAY AFTER TAKING
POSSESSION OF THE INFANT. THAT LANGUAGE MIRRORS THE STATUTORY REQUIREMENT FOR
HOSPITAL STAFF; THAT IS, TO -- THAT IN 30:4 C-15.7 B 3, AGAIN SAYS THAT
THEY MUST CONTACT DCPP NO LATER THAN THE FIRST BUSINESS DAY AFTER TAKING POSSESSION.
IT SEEMS LIKE THEY'VE PADDED IT A LITTLE BIT TO ALLOW HOSPITALS
TO MAKE A DETERMINATION ABOUT WHETHER THIS IS A SAFE HAVEN. IF SOMEBODY LEAVES
AND DOESN'T COME BACK THEY HAVE, IT LOOKS LIKE AT LEAST 24 HOURS AND IN
SOME CASES MORE THAN THAT TO DETERMINE IS THIS PARENT NOT RETURNING. I WANTED
TO POINT THAT OUT IN TERMS OF THE INTERPRETATION OF THE COURT. OBVIOUSLY THIS
COURT HAS HISTORILY AND REPEATEDLY SAID THAT INTENT CAN BE INFERRED BY BOTH
ACTIONS AND WORDS AND DESPITE THE DIVISIONS AND THE LAW GUARDIAN'S REQUESTS
THAT THIS COURT IMPOSE A REQUIREMENT THAT SOMEONE AFFIRMATIVELY STATE VERBAL
LY THEIR INTENT TO EXERCISE KRIETHS UNDERSTAND SAFE HAVEN. THERE IS NOTHING LIKE
THAT IN THE STATUTE. IT IS THE STATE INTENT, EXPRESS INTENT AND AGAIN,
INTENT HAS ALWAYS BEEN ABLE TO BE INFERRED. I WILL TRY TO WRAP UP
HERE. I WANT TO SAY, IN THIS CASE, IT IS NOT A BLANK BENEFIT FOR THE CHILD BY.
THERE IS NO WAY FILING FOR SUPPORT OF THE CHILD, IT IS LIKELY
TO HAVE A CHILLING EFFECT AND THE LEGISLATURE SAID ATTEMPT TO NEED A SAFE HAVEN
TO BE ABLE TO DELIVER THE CHILD SAFELY. WHEN A PARNTD TO BE
ABLE, AN INFANT CLOP STATUTORY PARTICULAR CAN'T HEAR CLOP KANT HEAR WITHOUT IT
CLOP. MARY M. MC MANUS-SMITH: IT GOES BACK IT CANNOT
SUPPORT -- CHIEF JUSTICE RABNER: THANK YOU. CHRISTINA
DUCLOS: MAY IT PLEASE THE COURT. THE SAFE HAVEN ACT WAS CREATED FOR THE PURPOSE OF PROTECTING
THE STATE'S MOST VULNERABLE CITIZENS FROM HARM OR EVEN DEATH. THE ACT PROVIDES BOTH GUIDANCE
AND SOME FLEXIBILITY TO ALLOW PARENTS AND NEWBORNS TO MAKE USE OF ITS PROTECTION. BUT
FLEBLT DOES NOT MEAN AMBIGUITY. THE ACT's PLAIN LANGUAGE REQUIRES THAT THE PERSON VOLUNTARILY
DELIVERING THE CHILD TO THE SAFE HAVEN LOCATION DOES NOT EXPRESS A RETURN TO THE CHILD.
A PARENTS' DECISION TO INVOKE THE ACT BRINGS THE CONSEQUENCE OF RELINQUISHING THEIR
CONSTITUTIONAL RIGHT TO PARENT. WHEN THE ACT IS TRIGGERED TO FILE WITHIN TERMINATION OF
PARENTAL RIGHTS WITHIN 21 DAYS AFTER TAKING CUSTODY OF THE CHILD. IT IS NOT REQUIRED
TO MAKE REASONABLE EFFORTS TO RE-UNIFY. OF THE TERMINATION PROCEEDINGS. NEITHER MAINTENANCE
OR FAMILY CONNECTIONS ARE EXPECTED UNDER THE ACT. THE DIVISION IS NOT ASKING THIS COURT
TO FIND THAT A PERSON MUST USE MAGIC WORDS TO INVOKE SAFE HAVEN. BUT WERE WHERE THE
CONSEQUENCES ARE SWIFT AND PERMANENT SEVERING OF A PARENT CHILD RELATIONSHIP THE DIVISION
DOES EXPECT THAT A PARENTS EXPRESSION OF INTENT BE UNEQUIVOCAL, WHETHER IN WORDS OR ACTION.
ULTIMATELY, THE GOAL OF THE ACT IS TO ALLOW ANYONE WHO WISHES TO INVOKE IT
TO DO SO IF IT IS THE RIGHT CHOICE FOR THEM AND THE FAMILY. SO THE DIVISION WITH ITS
EXPERTISE UNDERSTANDS THE NEED FOR A CERTAIN AMOUNT OF FLEXIBILITY. FOR EXAMPLE, THE
DIVISION WOULD NOT REFUSE A SAFE HAVEN BASED ON THE CHILD BEING SLIGHTLY OVER 30 DAYS
OLD OR BECAUSE THE PERSON DROPPING THE CHILD OFF WALKS INTO THE WRONG DEPARTMENT AT THE
HOSPITAL. BUT WHEN IT COMES TO NOT EXPRESSING AN INTENT TO RETURN FOR THE CHILD, THE
INTENT OR LACK THEREOF CANNOT LEAVE ROOM FOR DOUBT. THE STATE SIMPLY CANNOT STEP IN AND
TAKE AWAY A PERSON'S CONSTITUTIONAL RIGHTS UNLESS THERE IS NO QUESTION OF THEIR INTENT.
THE PERSON MUST UNEQUIVOCALLY INTEND TO GIVE UP THAT RIGHT. THIS PRINCIPAL
THAT THERE MUST BE MUNL ROOM FOR DOUBT WHEN THE CONSTITUTIONAL RIGHT TO PARENT IS AT
STAKE IS EVIDENCED THROUGHOUT THIS COURT'S DECISIONS WHEN IT BECOMES TO PARENT CHILD
RELATIONSHIP. FOR EXAMPLE, IF A PERSON WANTS TO WAIVE THEIR RIGHT TO COUNSEL AND A
TERMINATION OF PARENT RIGHTS CASE, THIS COURT HAS HELD THAT SUCH A WAIVER THE PARENT DO
SO IN A TIMELY MANNER. IN ORDER FOR THE DIVISION TO IN-VOLUNTARILY TERMINATE PARENTS
RIGHTS IT MUST PROVE THE BEST INTERESTS BY CLEAR AND CONVINCING EVIDENCE AND ALL DOUBTS
MUST BE RESOLVED AGAINST TERMINATION OF PARENTAL RIGHTS. OUR APPELLATE COURTS
HAVE FOUND THERE IS NO LEGAL CONSEQUENCE OF GREATER MAGNITUDE THAN THE TERMINATION OF
PARENTAL RIGHTS. ASSUMPTIONS AND AMBIGUITY HAVE NO PLACE IN THE TERMINATION OF SUCH
RIGHTS. TO SUGGEST OTHERWISE WOULD PERMANENTLY IMPACT THE RIGHT TO BOTH PARENTS AND CHILDREN
WITHOUT BASIS. TO SUGGEST THAT THE MOTHER's CONDUCT IN THIS CASE OR ANY PARENT
WHO REPEATEDLY EXPRESSES A PLAN TO CARE FOR THEIR NEWBORN SHOULD HAVE LED THE DIVISION
OR THE HOSPITAL TO CONCLUDE THAT SHE HAD NOT EXPRESSED AN INTENT TO RETURN FOR THE CHILD
WOULD SET A DANGEROUS PRECEDENT. ONE WHERE A CONSTITUTIONAL RIGHT IS WAIVED FOR A PARENT
DESPITE THAT PARENTS ACTIONS AND WORDS TO THE CONTRARY. WHERE A PARENT EXPRESSES INTENT
TO CARE FOR THEIR CHILD AND THEN WISHES TO CHANGE COURSE, THE EXPRESSION OF INTENT TO
GIVE UP THOSE RIGHTS MUST BE PARTICULARLY CLEAR AND UNEQUIVOCAL. HERE THERE WERE
PLENTY OF WORDS AND ACTIONS SHOWING INTENT TO CARE AND RETURN FOR THE CHILD. BUT NO
ASSERTION TO THE CONTRARY, LET ALONE AN UNEQUIVOCAL ONE. IT IS PRECISELY BECAUSE THE
MOTHER IN THIS CASE EXPRESSED INTENT TO RETURN THAT THE DIVISION COULD NOT AND SHOULD NOT
HAVE PRESUMED A CHANGE IN HER INTENT WITHOUT AN UNEQUIVOCAL EXPRESSION OF THAT CHANGE.
GIVEN ALL THIS, THE APPELLATE DIVISION CORRECTLY FOUND THAT DID NOT INVOKE
SAFE HAVEN. INSTEAD, THE LOWER COURTS CORRECTLY FOUND THE BEST ACTIONS IN REPEATEDLY
EXPRESSING AN INTENT AND DESIRE TO CARE FOR A CHILD AND THEN LEAVING HER DAUGHTER AT
THE HOSPITAL WITHOUT A PLAN OR A WORD AMOUNTED TO ABUSE OR NEGLECT. THE TRIAL
COURT FOUND THAT THE MOTHER IN THIS CASE ABUSED OR NEGLECTED HER DAUGHTER BECAUSE OF HER
ACTIONS. AND SHOULD THIS COURT UPHOLD THE FINDING OF ABUSE AND NEGLECT, BETH STILL HAS
THE OPPORTUNITY TO CHALLENGE THE TIER LEVEL AT THE OFFICE OF ADMINISTRATIVE LAW WITH THE
ASSISTANCE OF COUNSEL. CHIEF JUSTICE RABNER: IS EVERYONE HEARING THIS?
CHRISTINA DUCLOS: I HEAR IT. CHIEF JUSTICE RABNER: LET'S TAKE A BREAK
FOR A SECOND. WE'LL TAKE A FIVE OR TEN-MINUTE RECESS AND RETURN. CHIEF JUSTICE
RABNER: BACK ON THE RECORD. PLEASE PROCEED. OFF RECORD. CHIEF JUSTICE
RABNER: PLEASE BE SEATED. I APOLOGIZE FOR THE INTERRUPTIONS. I KNOW IT'S NOT IDEAL
FOR AN ADVOCATE TO HAVE TO DEAL WITH STATIC AND STOPPING AND STARTING. PLEASE RESUME.
CHRISTINA DUCLOS: SO I'D LIKE TO RETURN TO THE FINDING OF ABUSE AND NEGLECT
HERE. THE TRIAL COURT MADE A FINDING THAT THE MOTHER IN THIS CASE, HER ACTIONS AMOUNTED
TO ABUSE OR NEGLECT UNDER TITLE NINE. AND SHOULD -- AND THE APPELLATE DIVISION UPHELD
THAT FINDING. SHOULD THIS COURT ALSO UPHOLD THE FINDING OF ABUSE AND NEGLECT, THAT STILL
HAS THE OPPORTUNITY TO CHALLENGE THE TIER LEVEL AT THE OFFICE OF ADMINISTRATIVE LAW.
WHERE SHE WOULD ALSO BE PROVIDED WITH COUNSEL. JUST JUST IN DESCRIBING THE CIRCUMSTANCES
OF THIS CASE SOMEWHAT WHEN A PARENT INITIALLY IN THEIR INITIAL COMMUNICATIONS I GUESS
EVEN WITH -- EITHER WITH THE HOSPITAL OR WITH DCPP INDICATES THEIR INTENT TO CARE FOR
THE CHILD BUT THEN LATER CHANGES THEIR MIND, IT SEEMS AS THOUGH YOUR ARGUMENT IS IN THOSE
CIRCUMSTANCES THERE DO NEED TO BE MAGIC WORDS AND I THINK YOU SAID IN THAT CIRCUMSTANCE
IF A PARENT HAS CHANGED THEIR MIND DURING THE FIRST FEW DAYS OF WHAT COULD BE A VERY
STRESSFUL AND VERY FLUID SITUATION, THE EXPRESSION OF INTENT MUST BE UNEQUIVOCAL OR SOME
WORDS THAT YOU USED. SO IS THE STANDARD DIFFERENT IN A SITUATION LIKE THIS?
DO MAGIC WORDS NEED TO BE USED? DOES THERE NEED TO BE AN AFFIRMATIVE IN-VOCATION OF THE
SAFE HAVEN ACT IF IN THE INITIAL MINUTES, DAYS OF HAVING BIRTH A PARENT EXPRESSES AN INTENT
TO CARE FOR A CHILD AND THEN LATER CHANGES THEIR MIND? CHRISTINA DUCLOS:
WELL, IN THE CIRCUMSTANCES OF THIS PARTICULAR CASE, THE -- ULTIMATELY THE DIVISION IS
OF THE MIND THAT IN ORDER TO TERMINATE PARENTAL RIGHTS, WHICH IS WHAT IS THE CONSEQUENCE
OF THE SAFE HAVEN ACT, THERE MUST BE SOMETHING UNEQUIVOCAL ABOUT THE PARENTS INTENT OR
LACK THEREOF. SO IF THERE WAS INTENT SHOWN, IN THIS CASE ON DAY ONE, DAY TWO, EVEN DAY
THREE, AND THEN SHE DISAPPEARS. PARENTS INVOLVED IN THE DIVISION CAN DISAPPEAR FOR ANY
NUMBER OF REASONS. IT DOES NOT HAVE TO MEAN THAT THIS PARENT IS -- WANTS TO GIVE HER
RIGHTS UP. THAT IS NOT NECESSARILY WHAT THAT MEANS. JUSTICE MICHAEL NORIEGA:
BESIDES THAT, THERE WERE SEVERAL LET'S CALL THEM DECEITFUL STATEMENTS ABOUT WHERE SHE WOULD
BE, ABOUT THE ADDRESS, THINGS THAT COULD EASILY LEAD THE CASEWORKER TO RECOGNIZE SHE'S
NOT BEING HONEST WITH ME ABOUT WHAT SHE INTENDS TO DO. SHOULDN'T WE TAKE THAT INTO ACCOUNT
AS WELL? CHRISTINA DUCLOS: UNFORTUNATELY THAT IS SOMETHING THAT THE
DIVISION COMES -- COMES UP FOR THE DIVISION OFTEN. EVEN WHEN A PARENT DOES NOT WANT TO
GIVE UP THE RIGHTS TO THEIR CHILD, THEY MIGHT NOT WANT TO BE INVOLVED WITH THE DIVISION.
THEY MIGHT HAVE UN-STABLE HOUSING. THEY MIGHT JUST BE SCARED OF THE DIVISION INVOLVEMENT
IN TAKING THEIR CHILD. THERE IS ANY NUMBER OF REASONS WHY A PERSON COULD GIVE DECEITFUL
STATEMENTS TO THE DIVISION WORKERS DURING THE COURSE OF AN INVESTIGATION.
JUSTICE MICHAEL NORIEGA: I UNDERSTAND THAT MAY BE TRUE, BUT CAN'T THAT ALSO BE AN EXPRESSION
OF AN INTENT NOT TO RETURN WHEN THAT PERSON IS GIVING INFORMATION THAT WILL NOT ALLOW
THEM TO BE FOUND? CHRISTINA DUCLOS: EXCEPT IN THIS INSTANCE, IT IS NOT THE
CASE WHERE EVERYTHING THAT SHE SAID WAS FALSE. SHE GAVE THE FATHER's NAME. SHE DID GIVE
FAMILY MEMBERS NAMES. THERE WAS INFORMATION THAT SHE PROVIDED THAT CONNECTED HER TO THIS
CHILD. JUSTICE MICHAEL NORIEGA: NOT EASILY ENOUGH TO ALLOW HER TO BE FOUND
READILY OR QUICKLY AFTER THE DIVISION BEGAN TO MOVE FORWARD WITH CUSTODY.
CHRISTINA DUCLOS: CORRECT. HOWEVER, IT STILL IS THE CASE THAT IT IS NOT UN-COMMON FOR
THE DIVISION TO HAVE THESE DIFFICULTIES WITH A PARENT, TO BE UNABLE TO LOCATE THEM. SO
IT'S -- THAT IS -- THAT CANNOT -- BEING UNABLE TO LOCATE A PARENT, BEING TOLD THE IN-
CORRECT PHONE NUMBER BY A PARENT, BEING TOLD AN IN-CORRECT ADDRESS BY A PARENT CANNOT MEAN
THE STATE STEPS IN AND TERMINATES RIGHTS. THAT KIND -- THAT IS NOT UNEQUIVOCAL.
JUSTICE MICHAEL NORIEGA: I'M SORRY. DIDN'T THE STATE MOVE FOR JUST THAT WHEN THEY COULDN'T
LOCATE HER? CHRISTINA DUCLOS: NO, NO, THE DIVISION DID NOT MOVE TO TERMINATE
HER RIGHTS. IT WAS A TITLE NINE FINDING FOR CARE CUSTODY -- CARE AND CUSTODY OF THE
CHILD. THAT DOES NOT NECESSARILY LEAD TO TERMINATION OF PENNSYLVANIA PARENTAL RIGHTS.
JUSTICE PATTERSON: WHEN YOU WERE SAYING THE TERMINATION OF PARENTAL RIGHTS,
YOU WERE TALKING ABOUT THE SAFE HAVEN PROCESS THAT STARTS. CHRISTINA DUCLOS:
CORRECT. IF WE HAD CONSIDERED THAT THE DIVISION OR THE HOSPITAL HAD CONSIDERED THIS EQUIVOCAL
BEHAVIOR BY THE MOTHER IN THIS CASE TO AMOUNT TO A SAFE HAVEN, THEN AT THAT POINT WITHIN
21 DAYS OF THE DIVISION TAKING CUSTODY OF THAT CHILD, THE DIVISION IS MANDATED TO FILE
FOR TERMINATION OF PARENTAL RIGHTS. THAT IS THE DIRECT CONSEQUENCE OF SAFE HAVEN BEING
IN PLACE. CHIEF JUSTICE RABNER: IF THERE'S INSUFFICIENT -- IF THERE'S AN
SUFFICIENT BASIS FOR A FINDING OF ABUSE AND NEGLECT, DO WE TURN TO THE SAFE HAVEN ACT?
CHRISTINA DUCLOS: IF THERE'S INSUFFICIENT INFORMATION TO FIND ABUSE AND
NEGLECT, THAT FINDING CAN BE OVERTURNED BY THIS COURT WITHOUT TOUCHING THE SAFE HAVEN ISSUE.
CHIEF JUSTICE RABNER: SO THEN LOOKING AT THE STATUTE AT TITLE NINE, WHAT WAS
THE HARM TO THE CHILD HERE? WHAT WAS THE IMMINENT HARM FOR OR THE ACTUAL HARM TO THE
CHILD? CHRISTINA DUCLOS: THE IMMINENT HARM IN THIS CASE AS FOUND BY THE
TRIAL COURT AND THE APPELLATE DIVISION WAS IN PART BEING LEFT IN THE HOSPITAL FOR LONGER
THAN NECESSARY. WHILE ON ITS FACE THIS MIGHT NOT SEEM LIKE A HARM OR A RISK OF HARM TO
A NEWBORN BABY, IT DID LEAVE THAT CHILD WITHOUT A PARENT OR GUARDIAN TO MAKE MEDICAL OR
OTHER DECISIONS FOR HER. DEPRIVED HER OF PARENTAL CARE AND NURTURE AT ONE OF THE MOST
VULNERABLE TIMES IN A CHILD'S LIFE. AND REQUIRED THE DIVISION TO INTERVENE. WELL
THANKFULLY THE CHILD IN THIS CASE DID NOT EXPERIENCE MEDICAL COMPLICATIONS, IT'S NOT
IMPOSSIBLE THAT A NEWBORN INFANT WILL EXPERIENCE SOME SORT OF MEDICAL COMPLICATION THAT
REQUIRES AN IMMEDIATE AND POTENTIALLY LIFE SAVING DECISION TO BE MADE. CHIEF JUSTICE
RABNER: HOW MANY ADDITIONAL DAYS WAS THIS CHILD HELD IN THE HOSPITAL? CHRISTINA
DUCLOS: I BELIEVE THREE. CHIEF JUSTICE RABNER: IN THE CARE OF THE HOSPITAL,
JUST TWO EXTRA DAYS, IN THE DARE OF THE HOM SYSTEM? CHRISTINA DUCLOS: YES.
CHIEF JUSTICE RABNER: AND THAT CREATED AN IMMINENT DANGER OF HARM TO THIS CHILD?
CHRISTINA DUCLOS: YES, YOUR HONOR. CHIEF JUSTICE RABNER: WHICH
PART OF SECTION 821 C ARE YOU RELYING UPON? CHRISTINA DUCLOS: THE DIVISION
IS RELYING UPON THE FAILURE TO EXERCISE A MINIMUM DEGREE OF CARE BY THE PARENT TO PROVIDE
CARE, FOOD, SAFETY, A SHELTER FOR THE CHILD. CHIEF JUSTICE RABNER: SO YOU'RE
RELYING ON 4A. CHRISTINA DUCLOS: YES. CHIEF JUSTICE RABNER: AND
THE FINDING OF THE TRIAL COURT RE-LATED TO FOOD CLOTHING AND SHELTER, WAS THIS CHILD DENIED
FOOD, CLOTHING OR SHELTER? CHRISTINA DUCLOS: LUCKILY, NO. BUT SHE WAS NOT
PROVIDED THOSE THINGS BY HER PARENT. CHIEF JUSTICE RABNER: BUT WHAT WAS THE
DANGER IF THOSE THINGS WERE BEING PROVIDED BY THE HOSPITAL? WAS THERE A RISK THAT THE
HOSPITAL WOULD NOT PROVIDE FOOD, CLOTHING OR SHELTER? CHRISTINA DUCLOS: NO.
BUT THERE IS A RISK THAT THE PARENT IN THIS CASE -- EXCUSE ME. THAT THE CHILD IN THIS
CASE COULD HAVE NEEDED SOMETHING THAT A PARENT NEEDED PERMISSION -- OR NEEDED TO GIVE
PERMISSION FOR THAT CHILD TO RECEIVE. THAT COULD INCLUDE AN IV, FOR INSTANCE, WHICH MAYBE
GIVES FOOD. THERE ARE THINGS THAT COULD HAVE OCCURRED THAT WOULD HAVE LED TO A PROBLEM
FOR THE DIVISION WHERE THEY WOULD HAVE TO TRY TO FIND THE MOTHER, TRY TO SEEK COURT ORDERS
TO ALLOW THEM TO MAKE DECISIONS. AND WOULD LEAD TO A SUBSTANTIAL -- THAT'S A SUBSTANTIAL
RISK FOR THAT CHILD. CHIEF JUSTICE RABNER: DID THE TRIAL COURT IN ITS ORDER
MAKE AN EXPRESSED FINDING OF IMPAIRMENT OR IMMINENT DANGER OF IMPAIRMENT? I DON'T SEE
THE LANGUAGE. CHRISTINA DUCLOS: I DON'T BELIEVE THEY -- I DON'T BELIEVE THAT
LANGUAGE WAS REFERENCED, NO. CHIEF JUSTICE RABNER: SO DID THE TRIAL COURT'S
ORDER THEN SATISFY THE REQUIREMENTS OF TITLE NINE? CHRISTINA DUCLOS: WHEN
READ IN CONJUNCTION WITH THE TRIAL COURT'S ORAL DECISION, WHICH EXPRESSLY NOTES THE POTENTIAL
HARMS, YES. CHIEF JUSTICE RABNER: DID THE ORAL DECISION EXPRESSLY MAKE A
FINDING OF IMPAIRMENT OR IMMINENT DANGER OF IMPAIRMENT? CHRISTINA DUCLOS:
THEY NOTED THE POTENTIAL FOR HARM RE-LATED TO BEING LEFT IN THE HOSPITAL AS WAS DONE HERE.
CHIEF JUSTICE RABNER: I SEE AT PAGE 20 OF THE TRANSCRIPT THE TRIAL COURT IS
SAYING SHE FAILED TO EXERCISE THE MINIMUM DEGREE OF CARE IN SUPPLYING THE CHILD WITH ADD
FOOD, CLOTHING AND SHELTER. DID THE TRIAL COURT MAKE AN ADDITIONAL FINDING ELSEWHERE
IN THE TRANSCRIPT OF ACTUAL IMPAIRMENT OR IMMINENT DANGER OF IMPAIRMENT?
CHRISTINA DUCLOS: THE FACT THAT THERE WAS A -- THAT THE COURT FOUND THERE WAS A MINIMUM
DEGREE OF CARE DISPLAYED BY THE MOTHER IN THIS CASE TO PROVIDE THOSE THINGS TO HER INFANT
AMOUNTS TO THE RISK OF IMMINENT HARM. CHIEF JUSTICE RABNER: SO THERE'S NO
NEED TO HAVE A FINDING OF THE FIRST PART OF SECTION C-FOUR? CHRISTINA DUCLOS:
IT'S ALL READ TOGETHER. SO IF THERE HAD BEEN -- THERE WAS A SPECIFIC FINDING HERE OF
THIS FAILURE TO PROVIDE FOOD, SHELTER AND -- IN MAKING THAT FINDING IT WAS THE CASE THAT
BECAUSE SHE FAILED TO DO THOSE THINGS, THAT PUT THE CHILD AT IMMINENT RISK OF HARM. IF
SHE HAD NOT FAILED THOD THOSE THINGS, THE CHILD WOULD NOT HAVE BEEN AT IMMINENT RISK OF
HARM. JUSTICE SOLOMON: EVEN IF SHE LEFT THE CHILD IN A PLACE WHERE THE CHILD
WAS PROVIDED WITH ANYTHING SHE REQUIRED, EVEN THOUGH THAT WAS DONE BY THE MOTHER, THAT
STILL SATISFIES THE ABUSE AND NEGLECT FINDING? CHRISTINA DUCLOS: YES, YOUR HONOR.
BECAUSE IT'S NOT -- IT'S NOT ACTUALLY THE CASE THAT SHE WOULD HAVE RECEIVED SOMETHING
LIKE MEDICAL TREATMENT WITHOUT A PARENT IF THERE WAS SOMETHING THE PARENT NEED TO DO
SIGN OFF ON. JUSTICE JUSTICE SO A CHILD IN THE HOSPITAL. THE PARENT HAS LEFT, THE PARENT
HAS NOT BEEN LOCATED AND CANNOT BE FOUND AND THE CHILD IN A HOSPITAL FACILITY IS IN NEED
OF MEDICAL ATTENTION BUT THAT MEDICAL ATTENTION WOULD NOT BE ATTENDED TO IN THAT
CIRCUMSTANCE. IS THAT WHAT YOU'RE SAYING? CHRISTINA DUCLOS: THE HOSPITAL
WOULD CONTACT THE DIVISION AND ADVISE THEM OF THE SITUATION, OF WHAT WAS GOING ON.
CHIEF JUSTICE RABNER: ASSUME THERE WAS A LIFE-THREATENING EPISODE THAT TOOK PLACE AND
THE MOTHER COULD NOT BE REACHED, IS IT REASONABLE THE HOSPITAL WOULD SAY WE CAN'T DO ANYTHING?
CHRISTINA DUCLOS: IF THE -- I CAN'T SPEAK TO ALL POSSIBLE PROCEDURES. BUT
GENERALLY SPEAKING A HOSPITAL NEEDS THE PERMISSION OF THE PARENT OR GUARDIAN OF A
CHILD TO TAKE ACTION WITH REGARD TO THAT CHILD. JUSTICE JUSTICE IT SEEMS LIKE
YOU'RE SAYING LEAVING A CHILD UN-INTENDED IS ENOUGH TO SHOW AN IMMINENT RISK OF HARM.
BUT IT SEEMS LIKE THE EXISTENCE OF THE SAFE HAVEN ACT WORKS AGAINST THAT. BECAUSE EVEN
IN -- SO REGARDLESS OF WHETHER THE SAFE HAVEN ACT APPLIES, EVEN IF THE LEGISLATIVE FINDINGS
ABOUT WHY THE LEGISLATURE WAS CREATING THE SAFE HAVEN ACT, THEY CONTRAST NEWBORN INFANTS
ABANDONED IN LIFE-THREATENING SITUATIONS WITH A NEED FOR A PARENT TO LEAVE AN INFANT
SAFELY. AND THEY SAY THAT THE SAFE HAVEN ACT IS CREATING THIS OPPORTUNITY FOR LEAVING
AN INFANT SAFELY. AND A HOSPITAL IS ONE OF THOSE PLACES. THERE ARE OTHER PLACES AS WELL.
SO IT SEEMS CONTRARY TO THE EXISTENCE OF THE SAFE HAVEN ACT WHICH SETS FORTH
A HOSPITAL AS A PLACE OF SAFETY TO ARGUE INSTEAD THAT A HOSPITAL LEAVING AN INFANT UN-
ATTENDED IN A HOSPITAL ITSELF PROOFS HARM OR IMMINENT HARM. HOW DO YOU RECONCILE THAT?
CHRISTINA DUCLOS: THE DIFFERENCE IS THE PARENTS' INTENT. SO IN A SAFE HAVEN
-- JUSTICE JUSTICE WHERE WE'RE TALKING ABOUT HARM OR IMMINENT HARM. I'M NOT
TALKING ABOUT WHETHER THE PARENT WHAT YOU WOULD CONSIDER THE RIGHT THING OR WHAT THE DIVISION
WOULD CONSIDER A RESPONSIBLE THING. I'M ONLY TALKING ABOUT HARM OR IMMINENT HARM. WHY
IS HARM OR IMMINENT HARM IMPACTED BY THE INTENT OF THE PARENT? CHRISTINA DUCLOS:
BECAUSE IT ALLOWS THE DIVISION AND THE HOSPITAL TO ACT DIFFERENTLY IN RELATION TO THAT
CHILD. IF THEY KNOW THE PARENT WISHING TO GIVE UP RIGHTS TO THAT CHILD, THAT IS A DIFFERENT
SCENARIO THAN NOT SHOWING THE PARENT IS GIVING UP THE RIGHTS TO THAT CHILD AND REQUIRES
ADDITIONAL SEARCHING FOR THE PARENT, ET CETERA. JUSTICE JUSTICE: I THINK
I UNDERSTAND BUT I'M NOT SURE. YOU'RE SAYING THE HARM OR IMMINENT HARM OF BEING IN A
HOSPITAL IS CREATED BY THE FACT THAT YOU DO NOT KNOW THAT THIS PARENT HAS UNINTENTIONALLY
LEFT THE CHILD IN THE HOSPITAL UNDER THE SAFE HAVEN ACT AND THEREFORE THE HOSPITAL CANNOT
IMMEDIATELY JUMP IN AND GIVE LIFE-SAVING TREATMENT IF LIFE-SAVING TREATMENT IS
NECESSARY AND INSTEAD WHAT? MEANING WHAT DOES A HOSPITAL HAVE TO DO INSTEAD OF JUST JUMPING
IN AND GIVING LIFE-SAVING TREATMENT? CHRISTINA DUCLOS: THEY HAVE TO CONTACT
THE DIVISION. IF THE DIVISION -- FOR EXAMPLE HERE. IF THE DIVISION HAD NOT BEEN INVOLVED
ALREADY AND MOM HAD LEFT, THE HOSPITAL WOULD CONTACT THE DIVISION AND SAY, SOMEONE LEFT
A BABY HERE. THE BABY NEEDS LIFE-SAVING TREATMENT. WE DON'T HAVE A PARENT TO
CONTACT. WE TRIED HER NUMBERS. THEY DON'T WORK. AND WOULD THE DIVISION INVESTIGATORS,
CASEWORKERS WOULD BECOME INVOLVED AS WOULD THE DIVISION's DAG's IN ORDER TO OBTAIN AN
ORDER FROM THE COURT ALLOWING THE DIVISION TO ACT ON BEHALF OF THE PARENT AND ALLOW THAT
PROCEDURE TO TAKE PLACE. JUSTICE JUSTICE: SO YOU'RE SAYING THE IMMINENT
DANGER IS BECAUSE THERE HAVE TO BE ALL THESE STEPS AND LIFE-SAVING TREATMENT CANNOT IMMEDIATELY
BE GIVEN WHEREIN IN A SAFE HAVEN ACT CASE IT COULD BECAUSE THE HOSPITAL KNOWS IT HAS
CUSTODY OF THE CHILD. CHRISTINA DUCLOS: YES. JUSTICE SOLOMON:
IN THAT HYPOTHETICAL CASE, WHICH IS NOT THE CASE HERE, THE CHILD NEEDS IMMEDIATE EMERGENCY
CARE. MIGHT BE AT RISK. THIS CHILD, THOUGH, WAS AT NO SUCH RISK. THIS CHILD WAS HEALTHY
WHEN LEFT. WAS CARED FOR AT THE HOSPITAL. SHE HAD NO EVIDENCE OF ANYTHING EITHER WHEN
LEFT OR THEREAFTER. SO THAT HYPOTHETICAL DOESN'T EXIST HERE. AND DOESN'T THE TRIAL
COURT'S FINDING IN YOUR ARGUMENT HAVE TO BE BASED ON THIS CHILD AND THIS OCCURRENCE?
CHRISTINA DUCLOS: YES, IT DOES. AND WHILE LUCKILY THIS CHILD DID NOT HAVE
THAT EXPERIENCE -- JUSTICE SOLOMON: THIS CHILD HAD NO -- WAS HEALTHY. HAD
NO ISSUES WHEN LEFT. AND WAS NOT AT ANY TIME AT RISK OF ANY OF THOSE ISSUES.
CHRISTINA DUCLOS: WELL, UN-EXPECTED THINGS HAPPEN WITH NEWBORNS. JUSTICE
PIERRE-LOUIS: BUT THEY DIDN'T. CHRISTINA DUCLOS: THAT'S THE DIFFERENCE --
JUSTICE PIERRE-LOUIS: IT DIDN'T HAPPEN HERE. AS JUSTICE SOLOMON NOTED, THE
TRIAL JUDGE'S FINDINGS NEED TO BE WITH REGARD TO WHAT HAPPENED FWH THIS CASE AND WHAT HAPPENED
IN THIS CASE IS THAT THERE WASN'T A SCENARIO OF LIFE-THREATENING TREATMENT THAT NEEDED
TO BE ADMINISTERED IMMEDIATELY AND THE HOSPITAL HAD TO CALL DCPP AND SEARCH FOR THE PARENT.
NONE OF THAT HAPPENED HERE. SO WHERE WE HAVE THIS CASE BEFORE US WITH REGARD TO ABUSE
AND NEGLECT FINDING, WITH REGARD TO A CHILD THAT SEEMED TO BE PERFECTLY FINE, NOTWITHSTANDING
THE -- YOUR ARGUMENT WITH REGARD TO THE AMBIGUITY, WITH REGARD TO THE MOTHER's INTENT
HERE. SO I'M JUST TRYING TO RECONCILE -- I UNDERSTAND THERE ARE -- THERE COULD BE A
THOUSAND PARADE OF HORRIBLES OF WHAT COULD HAPPEN IN THESE SEQUENCE, BUT NONE OF THEM
HAPPENED HERE. CHRISTINA DUCLOS: THAT IS THE DIFFERENCE BETWEEN IMMINENT RISK
AND ACTUAL HARM. JUSTICE SOLOMON: WHAT MAKES THE RISK IMMINENT HERE?
CHIEF JUSTICE RABNER: YOU HAVE TO SATISFY THE WORD IMMINENT. NOT THIS COULD HAVE HAPPENED.
HOW DO YOU SATISFY THAT? CHRISTINA DUCLOS: BECAUSE THE CHILD -- LUCKILY THE
CHILD IN THIS CASE DID NOT HAVE ANY MEDICAL PROBLEMS. WE CANNOT SAY THAT THAT COULD NOT
HAVE HAPPENED. CHIEF JUSTICE RABNER: BUT, AGAIN, COULD NOT -- CANNOT BE THE
STANDARD. CANNOT SATISFY PROOF OF THE IMMINENT RISK. SO POINT TO THE IMMINENT RISK IN
THIS CASE. CHRISTINA DUCLOS: THE IMMINENT RISK IN THIS CASE WAS NOT ONLY THE
MEDICAL SITUATIONS THAT WE HAVE BEEN TALKING ABOUT BUT ALSO -- CHIEF JUSTICE
RABNER: THERE ARE NONE. ARE THERE ANY MEDICAL SITUATIONS IN THIS CASE?
CHRISTINA DUCLOS: NO. CHIEF JUSTICE RABNER: SO AGAIN STAY WITH THE FACTS
HERE TO HELP US UNDERSTAND THE BASIS FOR ABUSE AND NEGLECT FINDING UNDER THE STATUTE.
WHAT'S THE IMMINENT DANGER? CHRISTINA DUCLOS: THOSE -- THERE WASN'T JUST
IMMINENT HARM HERE. THERE WAS ACTUAL HARM BY THE CHILD BEING DEPRIVED OF A PARENT. BY
THE PARENTS CARE AND NURTURE. JUSTICE MICHAEL NORIEGA: DOESN'T THAT -- BUT
FOR YOUR POSITION ON THE SAFE HAVEN ACT, DOESN'T THAT BETTER FIT WITH A CHARGE OF ABANDONMENT
UNDER TITLE NINE WHICH WAS WHAT WAS INITIALLY PURSUED AND IT JUST BECOMES INCONGRUENT
BASED ON EVERYTHING YOU'RE SUGGESTING WHICH SEEMS TO BE IS THE ONLY THING YOU COULD POTENTIAL
LY PROVE BUT FOR THE EXISTENCE OF THE SAFE HAVEN ACT. ISN'T THAT THE FACT?
CHRISTINA DUCLOS: THE FACT OF THE MATTER IS THAT WHILE ORIGINALLY PROCEEDING ON THE
ABANDONMENT IN TERMS OF THAT WAS THE INVESTIGATIVE FINDING THAT WAS MADE, THAT WAS NOT
WHAT THE -- THAT WAS NOT PLED IN THE COMPLAINT. THAT WAS NOT THE BASIS OF THE COMPLAINT.
IT WAS THE ACTIONS OF THE PARENT, NOT ABANDONMENT PER SE. MANY OF THE SCENARIO
I DO NOTS OF ABUSE AND NEGLECT INCLUDING THIS ONE CAN FALL UNDER DIFFERENT PARTS OF THE
STATUTE. IN THIS PARTICULAR CASE, THE DEPUTY ATTORNEY GENERAL WENT FORWARD WITH INSTEAD
OF AN ABANDONMENT THEORY OF THE CASE, THIS MUNL DEGREE OF CARE THEORY OF THE CASE.
CHIEF JUSTICE RABNER: AND THAT WAS THE POSITION IN THE APPELLATE DIVISION AND IN THIS
COURT, THAT THE ABUSE AND NEGLECT FINDING IS BASED ON ADEQUATE FOOD, CLOTHING AND SHELTER.
CHRISTINA DUCLOS: CORRECT. CHIEF JUSTICE RABNER: THAT'S STILL YOUR
POSITION, I TAKE IT. OR HAVE YOU MODIFIED IT? CHRISTINA DUCLOS: NO, WE HAVE
NOT. CHIEF JUSTICE RABNER: SO EXPLAIN TO US THE IMMINENT DANGER WITH RESPECT
TO THOSE SPECIFIC THINGS. CHRISTINA DUCLOS: YOUR HONOR, BEYOND THE FACT THAT
THE MOTHER DID NOT PROVIDE ANY OF THESE THINGS FOR THIS CHILD, SHE WAS NOT THE ONE TO DO
THESE THINGS. SHE LEFT HER CHILD WITHOUT A WORD TO ANYONE. CHIEF JUSTICE RABNER:
SO IS THAT ENOUGH TO ESTABLISH IMMINENT DANGER, THAT SOMEONE OTHER THAN MOM PROVIDED FOOD,
CLOTHING AND SHELTER? CHRISTINA DUCLOS: UNDER THE CIRCUMSTANCES OF THIS
PARTICULAR CASE, BECAUSE OF MOM's ACTIONS HERE, THE -- HER BEHAVIOR IS WHAT LED TO THE
IMMINENT DANGER FOR THIS CHILD. FASCIALE FASCIALE COULD YOU JUST EXPLAIN TO ME WHAT
YOU THINK THIS FINDING MEANS, THE FINDING THAT THE JUDGE MADE ON PAGE 16 OF THE ORAL TRANSCRIPT?
THE PROFFER FOCUSES ON THE RISK OF SUBSTANTIAL IMMINENT HARM TO THE CHILD. THEN IN THE
NEXT PARAGRAPH, THE JUDGE SAYS, I AM NOT MAKING A FINDING AGAINST THE MOTHER WITH RESPECT
TO THAT PARTICULAR FACT. WHAT DO YOU UNDERSTAND THAT TO MEAN? CHRISTINA DUCLOS:
I'M SORRY. COULD YOU REPEAT THE FIRST SENTENCE ONE MORE TIME? FASCIALE FASCIALE THE
PROFFER FOCUSES ON THE RISK OF SUBSTANTIAL IMMINENT HARM TO THE CHILD. AND THEN THERE
IS MORE LANGUAGE BUT I'LL SKIP TO THE NEXT PARAGRAPH. I AM NOT MAKING A FINDING AGAINST
THE MOTHER WITH RESPECT TO THAT PARTICULAR FACT. DID THAT HAVE ANYTHING TO DO WITH THE
DIVISION NOT SEEKING A FINDING OF ABUSE OR NEGLECT BECAUSE THE CHILD WAS BORN AND TESTED
'TO MARIJUANA? CHRISTINA DUCLOS: NO. SO THE DIVISION DID NOT PROCEED WITH REGARD
TO THE POSITIVE TEST BECAUSE THERE WERE NO WITHDRAWAL SYMPTOMS OR ANYTHING THAT DRUG
USE WOULD HAVE LED THE DIVISION TO MAKE A FINDING RE-LATED TO THAT. THAT PARTICULAR PART
OF THESE FACTS. CHIEF JUSTICE RABNER: PLEASE GO AHEAD. CHRISTINA
DUCLOS: I HAVE NOTHING FURTHER. EXCEPT TO EMPHASIZE JUST ONE FINAL POINT, WHICH IS,
THAT -- CHIEF JUSTICE RABNER: MAY I ASK ONE QUESTION BEFORE YOU FOLLOW UP THEN?
CAN YOU RESPOND TO THE ARGUMENTS WE'VE HEARD THAT ABUSE AND NEGLECT FINDING IN A CASE
WITH FACTS SUCH AS THIS COULD DISINCENTIVIZE PARENTS FROM LEAVING CHILDREN AT HOSPITALS?
CHRISTINA DUCLOS: YES. UNDER THE DIVISION's READING OF THE ACT, UNEQUIVOCAL
WORDS, ACTIONS TO EXPRESS INTENT OR LACK OF INTENT IS REQUIRED TO HAVE A SAFE HAVEN.
THAT WAS NOT THE CASE HERE. THIS IS NOT YOUR -- HAD -- AS IN DOE, FOR EXAMPLE, THE MOTHER
SAID, FROM MOMENT ONE THAT SHE WANTED TO GIVE THIS CHILD UP FOR ADOPTION. THAT'S WHAT
SHE WANTED. THERE WAS NO QUESTION ABOUT IT. THE DIVISION -- JUSTICE JUSTICE
THE UN-SKWIFL SKAL EXPRESSION DOES NOT APPEAR TO BE WHAT THE STATUTE REQUIRES. AND DOES NOT
EXPRESS AN INTENTION TO RETURN FOR THE CHILD. THAT MAKES IT SOUND LIKE THE PARENT COULD
SAY ABSOLUTELY NOTHING AND IT WOULD STILL SATISFY THE DOES NOT EXPRESS AN INTENTION TO
RETURN FOR THE CHILD. SO WHERE -- ASIDE FROM DOE, WHERE DO YOU GET IN THE LANGUAGE OF THE
STATUTE SUPPORT FOR AN UNEQUIVOCAL AFFIRMATIVE STATEMENT? CHRISTINA DUCLOS:
REALLY WE'RE LOOKING AT THE FACTS OF THE CASE AND WHAT HAPPENED HERE. IN YOUR TYPICAL
SAFE HAVEN CASE, THERE ESSENTIALLY IS AN AFFIRMATIVE ACT EVEN THOUGH IT'S NOT WORDS.
A PERSON IS GOING SOMEWHERE AND HANDING OVER A CHILD. THEY DON'T HAVE TO SAY I WANT TO
GIVE THIS CHILD UP FOR ADOPTION. THEY DON'T HAVE TO SAY ANYTHING. BUT HAND THE CHILD
OVER. THE HANDING OF THE CHILD OVER. JUSTICE JUSTICE: IT SEEMS LIKE YOU COULD
HAVE MADE AN ARGUMENT BEFORE SEPTEMBER 30TH THAT THE ACT COULD NOT APPLY HERE BECAUSE
THERE WAS NO ACT -- THE WAY THE STATUTE IS WRITTEN, IT SAYS IF A PERSON VOLUNTARILY
DELIVERS A CHILD AND LEAVES THE CHILD AT AN EMERGENCY DEPARTMENT. YOU COULD HAVE SAID
THAT DIDN'T HAPPEN HERE. THERE WAS NO VOLUNTARY DELIVERY TO AN EMERGENCY DEPARTMENT.
CHRISTINA DUCLOS: CORRECT. BECAUSE THE DIVISION DOES NOT WANT TO PREVENT
A PARENT -- IT DOESN'T -- IT DOESN'T READ WHAT THE INTENT OF THE ACT TO SAY THAT A PARENT
IN A MATERNITY WARD HAS TO TAKE THE CHILD, WALK OUT OF THE HOSPITAL AND WALK BACK INTO
THE ER TO HAVE A SAFE HAVEN. THAT SHOULD NOT BE REQUIRED. WHILE -- BUT IF
THEY, AS HERE, SAY IN ONE INSTANCE THEY HAVE EVERY INTENT OF CARING FOR THE CHILD AND
THEN VANISH, WHICH THERE COULD BE ANY NUMBER OF REASONS WHY A PARENT VANISHES, THERE HAS
TO BE MORE THAN THAT FOR THE DIVISION TO START TERMINATING SOMEONE'S RIGHTS.
JUSTICE MICHAEL NORIEGA: BUT YOU AGREE THAT OF THE MANY DIFFERENT THINGS THAT THAT COULD
ONE, ONE COULD BE AN EXPRESSION OF AN INTENT NOT TO RETURN WHEN DAYS GO BY AND THEY DON'T
RETURN. CHRISTINA DUCLOS: IT COULD BE BUT THE DIVISION CAN'T ACT ON COULD.
THE DIVISION CAN'T TERMINATE SOMEONE'S CONSTITUTIONAL RIGHTS BASED ON A COULD.
JUSTICE JUSTICE: I UNDERSTAND WHY YOU'RE SAYING YOU DO NOT WANT TO BE TERMINATING
PARENTAL RIGHTS EXCEPT IN UNEQUIVOCAL INTENTIONS. BUT A TITLE NINE PROCEEDING IS NOT
REQUIRED TO BE BROUGHT, RIGHT? UNDER THE SAFE HAVEN ACT I UNDERSTAND YOU FILE FILE TO
TERMINATE RIGHTS 121 DAYS. CHRISTINA DUCLOS: YES. CORRECT. TO THE EXTENT
THAT THE DIVISION DID HAVE TO FILE FOR CARE, CUSTODY AND SUPERVISION OF THE CHILD, IT
DID NOT HAVE TO PROCEED WITH ANY SORT OF ABUSE OR NEGLECT LITIGATION OR A FACT-FINDING
ON A TITLE NINE ABUSE AND NEGLECT FINDING. THAT'S RIGHT. JUSTICE JUSTICE:
SO BASED ON THE CHIEF JUSTICE's QUESTION, IF -- EVEN IF THE PLAIN LANGUAGE OF THE ACT
DID NOT APPLY OR IF YOU'RE NOT MAKING A PARTICULAR PLAIN LANGUAGE ARGUMENT BECAUSE
YOU DON'T WANT THE ACT TO BE APPLIED, ISN'T THERE STILL A CONCERN ABOUT DETERRING PARENTS
WHO AFTER LOOKING AT THE SITUATION AFTER THE FIRST THREE DAYS IT'S CLEAR DID NOT WANT
TO RETURN FOR THE CHILD AND WERE NOT MAKING AN INTENT TO RETURN? CHRISTINA
DUCLOS: WE CAN'T ASSUME THAT BASED ON DISAPPEARANCE. JUSTICE JUSTICE:
MY QUESTION IS, COULDN'T A TITLE NINE PROCEEDING IN A CASE THAT AMBIGUOUSLY COULD IMPLICATE
THE SAFE HAVEN ACT EVEN IF YOU DO NOT INTERPRET IT TO MEET THE REQUIREMENTS, COULDN'T
THAT STILL DETER PEOPLE FROM TRYING TO USE THE SAFE HAVEN ACT IN A CASE WHERE THEY ARE
UNEQUIVOCAL? CHRISTINA DUCLOS: NO. BECAUSE THOSE TWO PATHS ARE PARALLEL
PATHS. IF THERE IS A CONCERN FOR ABUSE AND NEGLECT, WHICH THERE WAS IN THIS CASE, THE
DIVISION CAN PROCEED WITH THE INVESTIGATION OF THE ABUSE AND NEGLECT AND MAKE A FINDING
OF ABUSE AND NEGLECT WHILE SIMULTANEOUSLY MOVING FORWARD WITH SAFE HAVEN IF THAT IS WHAT
THE PARENT HAS INTENDED. IT WOULD JUST GO THROUGH THE ADMINISTRATIVE --
JUSTICE JUSTICE: I UNDERSTAND IT'S POSSIBLE. I THINK BECAUSE THE QUESTION WAS ABOUT
DETERRING A PARENT, THAT IS WHAT I'M NOT UNDERSTANDING. IT SEEMS LIKE THE DIVISION
BOTH WANTS THE PARENT TO HAVE THESE OPTIONS BUT ALSO DOESN'T REALLY WANT THE PARENT TO HAVE
THESE OPTIONS BECAUSE THEY'RE GOING TO PROCEED WITH AN ABUSE AND NEGLECT FINDING EVEN
IN A CIRCUMSTANCE WHERE THE SAFE HAVEN ACT MIGHT HAVE BEEN AMBIGUOUSLY RELEVANT.
CHRISTINA DUCLOS: THE DIVISION IS MANDATED TO INVESTIGATE ABUSE AND NEGLECT. WHEN THERE
WAS AN ALLEGATION OF ABUSE AND NEGLECT WITH REGARD TO THE MOTHER IN THIS CASE LEAVING THE
HOSPITAL WITHOUT THE CHILD, THEY WERE MANDATED TO INVESTIGATE THAT ALLEGATION, WHICH IS
WHAT THEY DID HERE. THERE IS NOT -- THERE WAS NOT AN OPTION TO NOT INVESTIGATE THAT
WHEN IT WAS ALLEGED. SO WHILE I -- BUT IT DID NOT -- THE -- THE ISSUE OF DETERRENCE
DOESN'T COME INTO PLAY IN THIS SCENARIO CERTAINLY AND REALLY THE -- IF A PARENT WANTS
TO INVOKE SAFE HAVEN, THEY CAN INVOKE SAFE HAVEN. THE DIVISION WILL SUPPORT THEM IN INVOKING
SAFE HAVEN. YOU WOULDN'T HAVE HAD THIS PARTICULAR CIRCUMSTANCE IF SAFE HAVEN HAD
BEEN CLEARLY ON THE TABLE. RIGHT. BUT IT NEVER WAS. YOU WOULDN'T HAVE THIS EXACT FACT
SCENARIO NECESSARILY WITHOUT -- IF MOM HAD SAID THAT SHE DIDN'T WANT TO TAKE CARE OF THIS
CHILD, THAT SHE DIDN'T WANT TO -- SHE WANTED TO GIVE UP THE CHILD FOR ADOPTION. THEN
THE DIVISION WOULD KNOW THAT THAT IS WHAT HAPPENED. AND WOULD KNOW THAT THAT'S WHAT
SHE WANTED AND WOULD ASSIST WITH THAT HAPPENING. BUT THAT'S NOT WHAT THEY KNEW HERE.
SO THEY HAD TO LOOK AT THIS AS NOT A SAFE HAVEN CASE. IT WAS NEVER CONSIDERED A SAFE
HAVEN CASE FOR THE DIVISION. IT WAS CONSIDERED A PARENT HAVING AN ALLEGATION OF ABUSE
AND NEGLECT THAT NEEDED TO BE INVESTIGATED OUTSIDE OF THE CONTEXT OF SAFE HAVEN.
CHIEF JUSTICE RABNER: PLEASE UNDERSTAND THAT NONE OF THE QUESTIONS THAT HAVE COME FROM
ME OR OTHERS QUESTION THE GOOD FAITH OF THE DIVISION OR YOUR ARGUMENT TODAY. IT COMES
DOWN TO WHETHER THERE'S A BASIS FOR THE ABUSE AND NEGLECT FINDING AND THE EFFECT OF THE
SAFE HAVEN ACT. WOULD YOU LIKE TO CLOSE OUT YOUR ARGUMENT?
CHRISTINA DUCLOS: YES. THANK YOU. THE FINAL POINT THAT I WOULD JUST LIKE
TO DRAW THE COURT'S ATTENTION TO IS THAT THERE HAS BEEN A LOT OF MENTIONING THIS MORNING
THAT THIS FINDING IS GOING TO PREVENT MOM FROM HOLDING THE JOB THAT SHE HAD PREVIOUSLY.
AS A DAYCARE WORKER. AND THAT IS NOT NECESSARILY THE CASE. SHE STILL HAS THE OPPORTUNITY
-- SHOULD THIS COURT FIND THAT THE FINDING OF ABUSE AND NEGLECT WAS APPROPRIATE, SHE WOULD
THEN HAVE THE OPPORTUNITY TO BRING A CASE AT THE OFFICE OF ADMINISTRATIVE LAW WHERE SHE WOULD
CHALLENGE THE TIER FINDING. SO SHE WOULD BE ABLE TO WITH THE ASSISTANCE OF COUNSEL, WHO
WOULD BE ASSIGNED TO HER, ARGUE THAT HER CASE SHOULD NOT HAVE BEEN SUBSTANTIATED BUT SHOULD
HAVE BEEN ESTABLISHED. SHOULD THE AGREE WITH THAT SHE WOULD NOT BE ON THE REGISTRY. AN
ESTABLISHED FINDING IS NOT RELEASED ON A CHILD ABUSE REGISTRY INQUIRY CHECK.
JUSTICE PIERRE-LOUIS: BUT IF THEY DOESN'T WIN IN THOSE PROCEEDINGS SHE WOULD BE PREVENTED.
CHRISTINA DUCLOS: CORRECT. JUSTICE PIERRE-LOUIS: THAT'S A LOT
OF HYPOTHETICALS. FASCIALE FASCIALE: WHAT BASIS WOULD THERE BE TO PREVAIL
ON SUCH AN ARGUMENT THAT THERE SHOULD NOT HAVE BEEN A FINDING THAT THAT IS SUBSTANTIATE
D BUT RATHER ESTABLISHED. CHRISTINA DUCLOS: WELL, SHE WOULD HAVE TO PRESENT
EITHER HER TESTIMONY WHICH WE'VE NEVER ACTUALLY HEARD FROM MOM ABOUT WHAT SHE WANTED HERE
FOR ANY OF THIS OR WHAT HER INTENTIONS WERE. SHE COULD PRESENT OTHER EVIDENCE TO SUGGEST
THAT ON BALANCE OF THE AGGRAVATING AND MITIGATING FACTORS, THAT THE MITIGATING FACTORS,
THE FACT THAT THIS IS THE FIRST TIME SHE WAS INVOLVED WITH THE DIVISION, THINGS LIKE THAT,
OUTWEIGH THE AGGRAVATING FACTORS LEADING TO AN ESTABLISHED FINDING. CHIEF
JUSTICE RABNER: THANK YOU, COUNSEL. JUSTICE WAINER: SGOLD GOLDSTEIN THE SAFE
HAVEN SURRENDER DID NOT OCCUR. THE MOTHER, B.P., ARGUE VIOLATED HER PLANS TO CARE FOR
THE BABY WITH HOSPITAL STAFF AND THE DIVISION CASEWORKER AND NEVER INDICATE POLICE
DEPARTMENT SHE INTENDED TO SURRENDER HER PARENT RIGHTS. IN HER FINAL CONVERSATION WITH
THE DIVISION IN-TAKE WORKER, B.P. SAID SHE WAS OUT SHOPPING FOR ITEMS IN PREPARATION FOR
BRINGING THE BABY HOME. IN THIS CONTEXT, B.P. DID NOT ESTABLISH AN INTENT TO SURRENDER
HER CHILD UNDER THE SAFE HAVEN ACT. A PARENT WHO LEAVES HER CHILD AT THE HOSPITAL
AFTER THE DIVISION INITIATES AN INVESTIGATION MAY GO MISSING FOR A VARIETY OF REASONS
THAT DID NOT NECESSARILY CARRY AN INTENT TO PERMANENTLY SURRENDER PARENT RIGHTS. IN SUCH
SITUATIONS THE DIVISION HAS AN OBLIGATION TO LOCATE THE MISSING PARENT AND OFFER SERVICE
S GEARED TOWARDS REUNIFICATION. THIS CHILD NOW BENEFITS FOR A RELATIONSHIP WITH HER MOTHER
THAT INCLUDES SHARED CUSTODY. PARENTS MAY NOT ASSERT THE AFFIRMATIVE DEFENSE
PROVIDED BY A SAFE HAVEN SURRENDER AND IGNORE THE PROVISIONS THAT CALL FOR AN ACT CELL
RATED TIME FRAME WITHIN 21 DAYS OF THE SURRENDER. B.P. CANNOT ARGUE THAT SHE EFFECTUATED
A SAFE HAVEN SURRENDER AT THE HOSPITAL WITHOUT ALSO AGREEING THAT THE COURT SHOULD HAVE
TERMINATED HER PARENT RIGHTS WELL BEFORE THE DIVISION LOCATED HER AND WITHOUT ALSO
AGREEING THAT THE DIVISION NEVER SHOULD HAVE ATTEMPTED TO SEARCH FOR HER TO BEGIN WITH.
AN EVER BROAD INTERPRETATION OF THE INTENT REQUIRED FOR SAFE HAVEN SURRENDERS WOULD HAVE
PREVENTED THE POSITIVE OUTCOME FOR THE CHILD IN THIS CASE AND WOULD SEVER PARENTAL
RELATIONSHIPS FOR SIMILARLY SITUATED CHILDREN IN NEW JERSEY. I WELCOME THIS
COURT'S QUESTIONS. JUSTICE MICHAEL NORIEGA: YOU MENTIONED OVERBROAD SAFE HAVEN
SURRENDERS. I'M ASSUMING YOU MEAN THIS CASE PERHAPS. WHAT OTHER TYPES OF CASES ARE YOU
REFERRING TO IN TERMS OF OVERBROAD? JULIE E. GOLDSTEIN: I'M REFERRING TO
SORT OF THE BRIGHT-LINE RULE THAT WAS SUGGESTED THAT ANY PARENT WHO HAS A PENDING DIVISION
INVESTIGATION SAY HAS A NEWBORN AND EXPRESSES AN INTENT TO PARENT AND LEAVES WITHOUT
EXPRESSING ANY INDICATION OF AN INTENT TO SURRENDER THAT CHILD COVERS A LOT OF CASES.
WHERE PARENTS MAY AFTER GIVING BIRTH AT A HOSPITAL GO MISSING FOR A PERIOD OF TIME AND
THAT WOULD SWEEP IN A LOT OF CHILDREN UNDER THE SAFE HAVEN ACT IN DIVISION CASES.
JUSTICE MICHAEL NORIEGA: BUT ISN'T THERE A LIMIT TO NEWBORNS THAT ARE ABOUT THREE DAYS
OLD? WOULDN'T THAT SORT OF CLOSE THAT BROADENING OF THE CATEGORY? IT CAN'T HAPPEN WITH
CHILDREN THAT ARE BROUGHT TO THE HOSPITAL THAT ARE THREE MONTHS OLD OR FOUR MONTHS OLD.
JULIE E. GOLDSTEIN: CORRECT. I'M SPEAKING ABOUT DIVISION INVESTIGATIONS AND
CHILDREN AT THE TIME OF DELIVERING THE CHILD AT THE HOSPITAL, GIVING BIRTH TO THE CHILD
AT THE HOSPITAL. THERE ARE A LOT OF DIVISION CASES THAT ARE INITIATED AT THAT POINT.
AND UNFORTUNATELY IT'S NOT THAT UN-UNUSUAL IN THE COURSE OF AN INVESTIGATION. SOMETIMES
A CHILD HAS TO STAY IN THE HOSPITAL LONGER THAN THE PARENT HAS TO. BUT THE PARENT MAY GO
MISSING FOR A VARIETY OF REASONS THAT HAVE NOTHING TO DO WITH AN INTENT TO SURRENDER
THAT CHILD. THEY MAY HAVE HOMELESSNESS ISSUES, THEY MAY HAVE WARRANTS OUT FOR THEIR ARREST.
ANY NUMBER OF ISSUES THEY MAY WANT TO AVOID IN ENCOUNTERING THE DIVISION AND USUALLY WHAT
THE DIVISION DOES AND WHAT THE DIVISION IS OBLIGATED TO DO FOR THESE FAMILIES IS FIND
THE PARENT, ATTEMPT TO SERVICE THE PARENT, ATTEMPT TO PROVIDE SERVICES AND AMELIORATE
THE SITUATION. READING ALL OF THOSE CASES AS THE PARENT HASN'T RETURNED TO THE HOSPITAL,
THE PARENT IS MISSING, THIS IS NOW A SAFE HAVEN SURRENDER WOULD CAUSE THE DIVISION TO
TERMINATE THE PARENTAL RIGHTS OF MANY CHILDREN WHO ARE INVOLVED WITH THE DIVISION WHO
WE WOULDN'T THINK OF AS INFANTS THAT FALL UNDER THE SAFE HAVEN ACT AND WOULD EXACT A
REAL COST ON THE CHILDREN AT ISSUE AND THEIR MOST IMPORTANT RELATIONSHIPS. BOTH WITH THEIR
PARENTS AND WITH THEIR FAMILY MEMBERS. CHIEF JUSTICE RABNER: WHAT IS THE
IMMINENT DANGER OF IMPAIRMENT IN THIS CASE TO THE CHILD? JULIE E. GOLDSTEIN:
I DON'T REALLY HAVE MUCH TO ADD BEYOND WHAT THE DIVISION ALREADY EXPLAINED TO THE COURT.
CHIEF JUSTICE RABNER: THANK YOU. QUESTIONS ANYONE? ANYTHING
ELSE YOU'D LIKE TO ADD? JULIE E. GOLDSTEIN: NO. JUST AS A FINAL RE-MARK,
I THINK IT'S IMPORTANT TO NOTE NOT JUST WHAT THE DIVISION EXPLAINED ABOUT THE PARENTS
CONSTITUTIONAL RIGHTS BUT ALSO FOR CHILDREN. SAFE HAVEN ACT IS A VERY IMPORTANT ACT.
IT'S A LIFE SAVING MEASURE FOR CHILDREN WHO MAY OTHERWISE BE ABANDONED AND IN UN-SAFE
SITUATIONS. BUT IT ALSO DEPRIVES CHILDREN OF THEIR MOST IMPORTANT RELATIONSHIPS AND THE
MOST IMPORTANT FAMILY CONNECTIONS AND THAT'S A TRADE OFF THE LEGISLATURE MADE BECAUSE
OF THE IMPORTANCE OF SAVING THE LIVES OF THOSE NEWBORNS. BUT AN OVERLY EXPANSIVE DID HE
HAVE PHYSICIAN WOULD REALLY UNDERMINE CHILDREN'S RIGHTS TO THEIR FAMILY INTEGRITY.
SO WE WOULD URGE THE COURTS TO WRITE AN OPINION THAT INDICATES THAT THERE REALLY NEEDS
TO BE A CLEAR AND UNAMBIGUOUS EXPRESSION OF INTENT TO INVOKE THE SAFE HAVEN ACT IN CASES
WHERE THAT APPLIES. CHIEF JUSTICE RABNER: THANK YOU. MR. MITCHELL,
BRIEF REBUTTAL? T. GARY MITCHELL: THANK YOU, YOUR HONOR. I HAVE SOME COMMENTS
THAT I'D LIKE TO CLOSE WITH BUT I ALSO WOULD JUST LIKE TO RESPOND TO A COUPLE OF THINGS
THAT MY COLLEAGUES HAVE SAID ON THE OTHER SIDE. I WOULD WELCOME THAT INTEREST
IN PRESERVING PARENT RIGHTS IN THE CASES BEFORE THIS COURT THAT ACTUALLY INVOLVE TERMINATION
OF PARENT RIGHTS. I WOULD WELCOME MY COLLEAGUES TO MAKE THOSE ARGUMENTS AS WELL. SHE
DID NOT WANT TO BE A MOTHER. THAT SHE MADE PLAIN. SHE WANTED TO CONCEAL AS MUCH ABOUT
HERSELF AS POSSIBLE. JUSTICE JUSTICE: HOW DO YOU RESPOND TO MS. GOLDSTEIN's
POINT THAT THIS CASE TURNED OUT WELL FOR YOUR CLIENT BECAUSE IT WASN'T INTERPRETED As
A SAFE HAVEN CASE AND THAT SHE HAS LEGAL CUSTODY OF THE CHILD, SHE HAS UN-ACCOMPANIED
VISITATION OF THE CHILD AND NONE OF THAT WOULD BE POSSIBLE IF IT HAD BEEN INTERPRETED
BY THE DIVISION TO BE A SAFE HAVEN CASE. T. GARY MITCHELL: I THINK HER ARGUMENTS
ARE SPECULATIVE AND WRONG. WHAT OCCURRED HERE COULD HAVE HAPPENED SIX MONTHS EARLIER.
HAD THE DIVISION TREATED THIS AS A SAFE HAVEN CASE WHERE THEY HAVE EVERY ELEMENT YOU
NEED FOR A SAFE HAVEN CASE BASED ON ABANDONMENT WHICH ESSENTIALLY TRACKS THE SAFE HAVEN
LAW, THE DIVISION SAID WE KNOW THE MOTHER IS ABANDONING THIS CHILD AND THEY WENT TO COURT.
THEN THEY REALIZED WE'VE GOT A PROBLEM HERE. BUT WHAT THAT WOULD HAVE TRIGGERED,
YES, MY CLIENT WOULD HAVE BEEN TREATED AS HAVING SURRENDERED HER PARENT RIGHTS, WHICH IS
WHAT SHE TRIED TO DO. BUT THAT DOES NOT MEAN THOSE PARENT RIGHTS WOULD HAVE BEEN
TERMINATED IN PART BECAUSE AS THE DIVISION OMITS PERHAPS STRATEGICALLY, THE FATHER WAS
KNOWN. THE FACT THAT THE FATHER WAS KNOWN AND THE OTHER RELATIVES WERE IDENTIFIED TRIGGERS
ANOTHER SET OF OBLIGATIONS ON THE DIVISION NOT TO MOVE TO TERMINATE PARENT RIGHTS BUT
TO SEE IF THE FATHER's FAMILY, AS HERE HAPPENED -- JUSTICE JUSTICE: I THOUGHT
IT WAS SAID IN A SAFE HAVEN CASE THERE ARE NO OTHER OBLIGATIONS. THE ONLY OBLIGATION
IS TO MOVE TO TERMINATE RIGHTS. T. GARY MITCHELL: IF THE IDENTITY OF A PARENT
IS KNOWN, IT'S A FULL STOP SIGN. SO TO THE EXTENT THE DIVISION MADE THAT REPRESENTATION,
THEY WERE IN-CORRECT. THE SAFE HAVEN LAW SAYS IF THE IDENTITY OF ANOTHER PARENT IS KNOWN,
YOU HAVE TO PROCEED AND SEE IF REUNIFICATION WITH THAT PARENT IS POSSIBLE OR THE EXTEND
ED FAMILY OF THAT PARENT. SO THE SAME THING THAT OCCURRED HERE OVER A SIX-MONTH,
EIGHT-MONTH, NINE-MONTH PERIOD WHEN THEY WERE AGGRESSIVELY PROSECUTING MY CLIENT FOR A
TITLE NINE VIOLATION, THEY COULD HAVE DEVOTED THEIR ATTENTION TO WHAT THEY ULTIMATELY
DID HERE, AND THAT IS RE-UNIFY WITH THE PATERNAL GRANDMOTHER. WE KNOW NOTHING ELSE FROM
THE RECORD ABOUT WHAT HAPPENS TO THIS -- TO MY CLIENT, TO THE CHILD, TO THE FAMILY AFTER
THAT. THE RECORD IS BARREN OF ANY INFORMATION ON THAT. ALL WE HAVE TO GO UPON IS WHAT
COULD HAVE HAPPENED -- NOT TO USE THE COULD HAVE AS THE BASIS FOR THE FINDING HERE.
BUT WHAT -- IF WE WERE SO INTERESTED IN MY CLIENT HAVING SOME CONTINUING RIGHTS, THAT REALLY
WAS ONLY AN AFTERTHOUGHT. THE PLACEMENT OF A CHILD COULD HAVE OCCURRED, PERMANENT
PLACEMENT. AND THAT'S WHY I DARE SAY TO ANSWER THE CHIEF JUSTICE's QUERY EARLIER, WHY
IT MERITS THIS COURT'S ATTENTION TO ADDRESS THE SAFE HAVEN LAW AS WELL AS THE TITLE NINE
AS WELL AS THE LACK OF EVIDENTIARY SUPPORT FOR THE TITLE NINE VIOLATION HERE.
JUSTICE JUSTICE: WHERE SPECIFICALLY IN THE SAFE HAVEN LAW CAN I FIND THE PROVISION THAT
THE DEPARTMENT IS REQUIRED TO LOOK FOR OTHER FAMILY MEMBERS? I ONLY SEE IT SAYS THE
DIVISION AFTER ASSUMING THE CARE CUSTODY AND CONTROL OF THE CHILD SHALL ATTEMPT TO RE-
UNIFY -- JUSTICE PIERRE-LOUIS: I THINK YOU'RE REFERRING TO SECTION 18.
JUSTICE WAINER: IS THAT A PART OF THE STATUTE? T. GARY MITCHELL: I THINK
WHAT I WAS REFERRING TO IS THAT THE COURT IN (CASE CITED) READING READING --
JUSTICE PATTERSON: CAN YOU SPEAK UP A BIT? T. GARY MITCHELL: I'M SORRY.
THE DIVISION HAS AN OBLIGATION THAT TO LEAD TO THE IDENTITY OF THE FATHER. HERE IT WAS.
SO THE OBLIGATION TO PROCEED TO IDENTIFY, WHAT THEY ULTIMATELY DID HERE, COULD HAVE BEEN
TRIGGERED MUCH EARLIER THAN TO WAIT FOR THE -- I DARE SAY DELAY IN PERMANENCE THAT BRINGING
THE TITLE NINE ACTION CAUSED. LOOKING AT PAGE 102 OF THE RECORD WHERE THE DIVISION MAKES
THEIR FACTUAL CONCLUSIONS THAT ABANDONMENT OR I DARE SAY THE BASIS FOR A SAFE HAVEN SURRENDER
WAS ESTABLISHED, SIX DAYS AFTER -- EIGHT DAYS AFTER THE CHILD'S BIRTH IN THE INVESTIGATIVE
FINDING, HAD THE DIVISION TREATED THAT AS A BASIS FOR PROCEEDING AS A SAFE HAVEN CASE
AND BRINGING WITHIN 21 DAYS THE TERMINATION OF PARENTAL RIGHTS ACTION, THEY WOULD HAVE
NOTIFIED THE FATHER. AND THAT WOULD HAVE BROUGHT UPON EXACTLY WHAT HAPPENED HERE BUT
SIX MONTHS EARLIER. IT -- WE WOULD HAVE SEEN PERMANENCY FOR THE CHILD ACHIEVED AT LEAST
IN TANDEM WITH OR PERHAPS SUBSTANTIALLY FASTER THAN WHAT ACTUALLY OCCURRED HERE DUE TO THE PROLONGATION OF THE TITLE NINE CLAIM. AND IN THAT REGARD, I ALSO FOUND
SUBSTANTIATION IN HER LISTING FOR THE LAST TWO AND A HALF YEARS ON THE CHILD ABUSE REGISTRY
IN NEW JERSEY, BLOCKED FROM EMPLOYMENT OPPORTUNITIES, THAT NOW SHE SHOULD GO TO THE
AOL AND LITIGATE THIS CASE HE AGAIN. NECK KELLY THE DEPUTY ATTORNEY GENERAL WAS CORRECT
THAT THE DEPARTMENT's REGULATIONS PERMIT THE COURT NOT TO HAVE THE LAST SAY, REMARKABLY,
ON WHETHER A TITLE NINE -- ON WHETHER THE DIVISION SHOULD TREAT A TITLE NINE FINDING BY
A COURT AS ESTABLISHED OR SUBSTANTIATED. HERE THE DIVISION HAS TREATED IT AS SUBSTANTIATE
D FOR THE LAST THREE YEARS. JUSTICE SOLOMON: I'M JUST CURIOUS. WHEN DID
YOUR CLIENT FIRST RAISE THE SAFE HAVEN ACT? T. GARY MITCHELL: IN OCCASIONS
WITH THE DAG JUST BEFORE TRIAL. JUSTICE SOLOMON: IT WAS AT THE TIME OF
TRIAL. FOR THE PERIOD OF TIME BEFORE THAT, HOW LONG WAS THAT? T. GARY MITCHELL:
EIGHT MONTHS. MY CLIENT DIDN'T KNOW -- JUSTICE SOLOMON: I UNDERSTAND.
T. GARY MITCHELL: ABOUT THE SAFE HAVEN ACT. SHE DIDN'T KNOW IT EXISTED. JUSTICE
SOLOMON: I'M JUST CURIOUS. T. GARY MITCHELL: WHICH IS WHY THIS COURT'S VOICE
IN RECOGNIZING -- IT DOESN'T HAVE TO BE BRIGHT LINES, IT CAN BE THE PARAMETERS OF THE
SAFE HAVEN ACT, AND I THINK JUSTICE FASCIALE, YOUR QUESTION, WHERE DOES THE DUTY ARISE
ON -- TO SUGGEST THE DIVISION HAS AN OBLIGATION. AND IJT THE STATUTORY AND REGULATORY
BASIS FOR THAT WAS SUGGESTED BY MY AMICUS COLLEAGUES. BUT I THINK THE READING IN-PARA
MATERIA, AS SEVERAL OF THE JUSTICES HAVE SAID THIS MORNING, READING THE TITLE NINE
PARTICULARLY AN ABANDONMENT CLAIM WHEN THAT'S BROUGHT, BECAUSE HERE IT WASN'T NEGLECT AT
FIRST, IT WAS ABANDONMENT. THAT WAS THE BASIS FOR THE PROCEEDINGS THAT BEGAN ON JUNE
30TH WHEN THE DIVISION FILED ITS TITLE NINE COMPLAINT. THAT THE BASIS FOR SAYING -- AND
I DARE SAY THE FAMILY COURT JUDGES IN THIS STATE SHOULD ALSO PERHAPS HAVE A DUTY OF SOME
SORT, AN OBLIGATION TO SAY WHEN THE DIVISION COMES TO COURT PRESENTING FACTS, PATENT
ABANDONMENT OR IT'S OUR FINDING, IT'S OUR SUBSTANTIATION, AS THE TRIAL JUDGE HERE
ULTIMATELY DID EIGHT MONTHS, SEVEN MONTHS LATER AT THE THIRD HEARING, MAYBE YOUR ABANDONMENT
CLAIM ISN'T GOING TO GO ANYWHERE. THOSE ARE DIFFICULT UNDER THESE FACTS. THERE'S A SAFE
HAVEN ACT OUT THERE. MAYBE WE SHOULD CHANGE THE FOCUS OF THE CASE. AND THAT'S WHAT THE
DIVISION ULTIMATELY DID. BUT I THINK THIS COURT WHEN A FAMILY PART JUDGE IS
PRESENTED WITH INFORMATION EIGHT DAYS AFTER YOUR CHILD'S BIRTH THAT THE MOTHER CANNOT
BE FOUND, THE MOTHER DOESN'T WANT TO BE FOUND, THAT'S A WOMAN WHO DOESN'T WANT TO BE A
MOTHER AND PERHAPS WE SHOULD CONSIDER, COUNSEL, THE FAMILY PART JUDGE MIGHT SAY, YOU
SHOULD CONSIDER MAYBE THIS HAS TURNED INTO A SAFE HAVEN ACT. BUT HERE THIS CASE
WENT ON AS JUSTICE SOLOMON JUST HAD ME IDENTIFY, EIGHT MONTHS ABOUT BEFORE THE WORDS SAFE
HAVEN WAS EVEN BROACHED. AND IT WAS BROACHED BY DEFENSE COUNSEL. I'M NOT ASKING THIS
CURT TO APPOINT MATERNITY WARD COUNSEL FOR WOMEN IN HOSPITALS. BUT THAT'S ALMOST LIKE
IT SEEMS LIKE WHEN THE STATE TALKS ABOUT AN UNEQUIVOCAL ASSERTION OF A SURRENDER, OF AN
INTENT. THAT'S NOT WHAT THE SAFE HAVEN ACT CONTEMPLATES. WHEN THE STATE HERE HAD IN
ITS OWN RECORDS LANGUAGE THAT COMMUNICATED THAT MY CLIENT WAS NOT GOING TO BE RETURNING
FOR THAT CHILD, THAT SHOULD HAVE TRIGGERED AT LEAST AN OBLIGATION. AND JUSTICE PATTERSON
MENTIONED EARLIER -- CHIEF JUSTICE RABNER: COUNSEL, I NEED YOU TO TRY TO WRAP
UP YOUR ARGUMENT. GO AHEAD AND RESPOND TO JUSTICE PATTERSON's COMMENT. MITCHELL MILTH
THANK YOU, YOUR HONOR. LET ME JUST -- JUSTICE PATTERSON MENTIONED EARLIER DID WE WANT
A TUTORIAL OF SOME SORT FOR A PREGNANT WOMAN WHO'S GIVING BIRTH. NOT THAT AT ALL.
NOTHING COERCIVE. JUST INFORMATION. IF MY CLIENT HAD INFORMATION, I DON'T THINK WE'D
BE HERE EVEN TALKING ABOUT THAT TODAY. IF I CAN CLOSE WITH, RETURNING TO OUR
TITLE NINE FOCUS IN OUR PAPERS, THE LOWER COURTS AND THE DIVISION LOST FOCUS ON CHILD
SAFETY WHICH I THINK THIS COURT'S QUESTIONS HAVE RETURNED UT TOCHLT HERE THE CHILD WAS
AT ALL TIMES SAFE AND SECURE. THE LOWER COURT DISREGARDED THE PROTECTIONS OF THE SAFE HAVEN
LAW WHICH IMPOSED NO BURN ON MY CLIENT TO EXPLAIN OR EVEN DECLARE HER CHOICE NOT TO RETURN.
BUT UNDER TITLE NINE THE DIVISION HAD THE OBLIGATION TO, THE BURDEN, TO SHOW RECKLESS
ACTS HIM NEGLIGENTLY, UN-REASONABLY AND SUBSTANTIALLY IMPERILED THE CHIEL. THE
DIVISION DID NOT DO SO BECAUSE MY CLIENT LEFT HER NEWBORN WHERE ALL THE BABY'S NEEDS WOULD BE
MET. SO SUGGEST OTHERWISE AND I USE THIS WORD GENTLY IS MALARKY. CHIEF JUSTICE
RABNER: ONE QUESTION FOCUSED ON WHAT YOU JUST MENTIONED. SHOULD IT BE A CONCERN THAT
THE TRIAL COURT DID NOT EXPRESSLY MAKE A FINDING ABOUT THE IMMINENT DANGER OF IMPAIRMENT
AND THE SUGGESTION WAS IT WAS IMPLICIT BY COMMENTS THAT TRACKED IN A AND B INSTEAD?
T. GARY MITCHELL: I THINK WE REQUIRE MORE IN FACT FINDINGS BY FAMILY PART JUDGES
THAN I AM MRIS -- I REALLY BELIEVE THE COURT COULD NOT MAKE THAT FINDING IN GOOD CONSCIOUS
BECAUSE THERE WAS NOTHING IMMINENT, NOTHING READY TO FALL OUT OF THE SKY. AND TO USE
THE SPECULATIVE HYPOTHETICALS THAT WERE -- THE DIVISION USED IN TRYING TO ANSWER YOUR
QUESTION, CHIEF JUSTICE, I DON'T THINK THAT'S WHAT THE STATUTE REQUIRES. I THINK THE
TITLE NINE REQUIRES FAR MORE. MY CLIENT ULTIMATELY WAS -- HER ACTIONS IMMEDIATELY
MADE TWO THINGS CLEAR. ONE, SHE ENSURED HER BABY WAS HEALTHY AND SAFE. NO DOUBT ABOUT
THAT. AND, TWO, SHE DID NOT WANT TO BE A MOTHER. SHE DID NOT WANT TO BE THE MOM THAT
THE DIVISION's COUNSEL REFERRED TO ERR HER AS TODAY. THIS COURT SHOULD HOLD
THAT TITLE NINE RESPECTS HER DECISION AND THAT THE SAFE HAVEN ACT PROTECTS HER SECOND
PAINFUL AND DIFFICULT CHOICE. CHIEF JUSTICE RABNER: THANK YOU ALL COUNSEL
FOR THE ARGUMENTS. IT'S A CREDIT TO YOU THAT YOUR PRESENTATIONS WERE NOT DIMINISHED BY
WHAT WAS HAPPENING IN THE BACKGROUND. WE APPRECIATE THAT. WE'LL TAKE THE MATTER UNDER
ADVISEMENT.