Reconsideration Denied, But Earlier Opinion Clarified Despite That

New Jersey DYFS v. I.S.. 423 N.J. Super. 124 (App. Div. 2011).  The Appellate Division is often asked to reconsider its decisions.  It does so only rarely, and even more rarely does a decision on reconsideration turn into a published opinion.  This short opinion by Judge Sapp-Peterson is one of those rare exceptions. 

Defendant I.S. sought reconsideration of the panel’s decision in New Jersey DYFS v. I.S., 422 N.J. Super. 52 (App. Div. 2011), asserting that “absent a finding that a child has been neglected or abused, a court may not retain jurisdiction over a child based upon the court’s determination that its assistance is still required.”  DYFS opposed reconsideration, but agreed that “N.J.S.A. 9:6-8.50c cannot be interpreted to continue a court’s jurisdiction in the absence of a finding of abuse or neglect.”  The Law Guardian too argued against reconsideration, but sought “clarification of [the prior] decision insofar as it may be read to heighten the burden of proof at a fact-finding hearing.”  DYFS likewise sought “clarification that the burden of proof in actions brought pursuant to N.J.S.A. 30:4C-12 is not the clear and convincing evidence standard, as may be construed from the opinion.”

The panel denied reconsideration, but clarified its opinion on the burden of proof issues.  “The burden of proof in abuse or neglect proceedings is proof by a preponderance of the evidence.”  In “Title 30 actions where the Division initiates an action to terminate parental rights, it is required to prove, by clear and convincing evidence, that termination is in the best interests of the child.  New Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).  All other proceedings under Title 30 are governed by the preponderance of the evidence standard.”

It sometimes pays to seek reconsideration, or “clarification,” of Appellate Division decisions.  Those occasions are not frequent.  But this opinion shows that reconsideration or clarification is possible, especially where the issue is important and the opinion to be reconsidered was a published decision.