Could calling child protective services on another individual for abuse and neglect be considered harassment? This question was answered in a recent domestic violence trial in New Jersey when defense attorneys argued that it could not, legally, be harassment because anyone who calls the Division of Child Protection and Permanency (DCPP) to report abuse or neglect are legally “immune” from liability. In the published opinion, the trial judge emphatically rejected the “absurd” result, which would have resulted in a “weaponization” of DCPP.
In the case, E.W. v. W.M-H. (initials are used to protect the identity of the victim), Judge Joshua Sanders, J.S.C. was faced with a dilemma. The parties in the case had engaged in a brief relationship, during which the plaintiff gave the defendant large sums of money due to now apparently fraudulent claims by the defendant. The plaintiff eventually realized she was being duped and filed civil and criminal charges against the defendant, seeking to recoup the money she had paid him. The day after he was served with the civil complaint, DCPP received a call claiming that the plaintiff was using marijuana around her child and commenced an investigation. The court determined it was the defendant who made that call, and he did so “primarily…to harass [the plaintiff] and specifically with purpose to alarm or seriously annoy her. At core, his contacting of DCPP was in retaliation for the ongoing litigation.”
Normally, a finding of harassment would lead a judge to consider whether a final restraining order is necessary to prevent further harm to the victim. In this case, however, before reaching that issue, the defense argued that N.J.S.A. 9:6-8.13 meant that the court could not find the defendant’s conduct harassing as it provides “immunity” to those making referrals to DCPP. The court aptly noted that the statute provides that “anyone” who makes a report to DCPP “shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed.” Thus, on its face, it appeared the court had no choice but to legalize the practice of calling DCPP for retaliatory or harassing purposes. In family law, to say that would have “opened the floodgates” is an understatement.
Fortunately, Judge Sanders demanded that reason prevail. The court started its analysis with the understanding that, “a literal reading of [statutes] which would lead to absurd results is to be avoided.” Judge Sanders also gave great weight to the Prevention of Domestic Violence Act (PDVA), which “is intended to assure victims of domestic violence the maximum protection from abuse the law can provide” and “is to be construed liberally to achieve its salutary purpose.” Ultimately, the judge rejected the proposition that the immunity statute indicated a “policy choice to protect children over victims of domestic violence,” finding no support for such a claim in the legislative history of either statute. In fact, the statutory text of the PDVA includes “that there is a positive correlation between spousal abuse and child abuse.” Under the circumstances, “applying the immunity statute…would put children at risk of being exposed to domestic violence” and “contravene not only the PDVA, but also the underlying purpose of the immunity statute itself.” The court therefore found the immunity statute “inapplicable in the realm of domestic violence as it would render an absurd result.”
This is an important decision for the family law community. We are frequently confronted with cases in which someone threatens to call DCPP to stop someone else from acting in a manner they don’t approve of but does not constitute abuse or neglect, and then subsequently follows through on those threats. Frequently, courts are reticent to prevent parties from calling DCPP as they do not want to stop a necessary report from being made. This decision, however, makes clear that, under the right circumstances, a referral to DCPP may be harassing and should be viewed as such in the context of a domestic violence complaint. Ultimately, victims of domestic violence now have an important case to stand behind if this happens to them and defendants should be wary of trying this tactic moving forward.
