Clarkson S. Fisher, Jr., J.s.c.
The opinion of the court was delivered by: Fisher
CLARKSON S. FISHER, JR., J.S.C.
Eight year old Jose M. found himself at the center of protracted litigation culminating in a lengthy trial. At the end of that trial, this court found that Jose had neither been neglected nor abused by defendants -- his mother and stepfather -- as had been claimed by the Division of Youth & Family Services ("DYFS"). *fn3
16 witnesses testified over 10 days. The court found in favor of defendants and dismissed the complaint. Now, defendants seek, among other things, an award of counsel fees from DYFS. They rely on this court's harsh words in dismissing the action *fn4 in support of their argument that DYFS's "abuse and neglect" complaint was frivolous within the meaning of N.J.S.A. 2A:15-59.1 ("the frivolous litigation statute").
Originally, the moving and opposing papers presupposed DYFS's vulnerability to attack by way of the frivolous litigation statute. That was logical since an earlier decision had, in fact, said so. See Matter of K.L.F., 275 N.J. Super. 507, 646 A.2d 532 (Ch. Div. 1993). Prior to the return date of this motion, however, the parties were invited to brief the question of whether K.L.F. should be followed.
For the reasons expressed below, this court disagrees with K.L.F. and holds that DYFS may not be sanctioned by way of N.J.S.A. 2A:15-59.1. Accordingly, the question of whether DYFS's complaint was actually frivolous, or commenced or continued in bad faith, need not be reached.
Picture the following scene. DYFS receives a referral from a school that one of their students has claimed to having been physically punished by his parents. A DYFS case worker is dispatched to the child's home that night. She is greeted by angry parents and tempers flare. The case worker seeks some indication that the child will not be disciplined inappropriately in the future but the parents stubbornly refuse to discuss the matter. None of the case worker's comments calm the waters or defuse the volatile situation. She calls her supervisor who contacts the local police in order to help restore civility in the home. Nothing works and while the case worker never intended to remove the child from the home, she now feels that the present situation warrants drastic action, particularly since some of the parents' anger seems directed toward the child. DYFS immediately removes the child from the home and a complaint is filed with the Family Part the next day. Whether the child was ever actually abused or neglected prior to removal remains a mystery as the litigation begins.
DYFS has been given the power to intervene into a scene such as described above, see N.J.S.A. 9:6-8.29(A), in order to "assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected." See N.J.S.A. 9:6-8.8. The issue now raised by defendants requires the court to consider whether the Legislature, in empowering DYFS to act swiftly and decisively to protect a potentially endangered child, also requires DYFS to act with deliberation and circumspection -- to "stop, think, investigate and research" *fn5 -- as required of private litigants in less exigent circumstances.
In entertaining the conjectures that spring from this case, the court must consider the Legislature's expressions and intentions against the backdrop of the extraordinarily important goal of the protection of children from abuse and neglect.
B. Did the Legislature Intend to Include DYFS as a Party Against Whom Frivolous Litigation ...