A finding of "Not Established" is not enough: Ziegler and Zemsky successfully appeal DCPP's finding
Our client, Hank – the names within this blog have been changed to maintain client privacy – was accused of abusing his seven-year-old daughter, Caroline. As he explained to the Division of Child Protection and Permanency (DCF), Caroline was throwing a wild tantrum when he grabbed her arms to try to stop her from throwing the violent fit. She shook herself away from him unexpectedly and accidentally ran into a wall. After coming to her side, Hank found she did not suffer any noticeable injury.
The incident was still surprising enough to eventually gain attention from the DCF. Despite the DCF investigator deciding Caroline had not been abused or neglected in the incident, and likely had never been, Hank’s case was closed with a “not established” finding. The best possible finding result and the only one that totally clears a parent’s name is an “unfounded” finding. Not understanding why the abuse claims were not deemed unfounded, Hank decided to appeal the case, even though it had technically ended in his favor.
A Finding Worth Fighting For
Hank knew he did not hurt or neglect his daughter, and he knew it would be unjust if he had to live with the shadow of a “not established” finding over his head. He turned to Melissa Zemsky, Esq. and Liz Burke, Esq. of Ziegler, Zemsky & Resnick in Livingston, New Jersey – each who had managed his initial case – for representation in taking his case to the appellate court. If he could not be granted an unfounded finding, he at least wanted clarification as to why the findings were merely not established.
Not Established Compared to Unfounded
In a potential child abuse case handled by the DCF, the Division makes its investigations and concludes the allegations are established, substantiated, not established, or unfounded. Established and substantiated findings mean the investigator does believe the child was abused or neglected based on available evidence. An unfounded finding is the closest thing to a “win” for the alleged abuser, as it signifies the investigator saw no preponderance of evidence that the child was abused, and it also indicated the child was not harmed or placed in any risk of harm.
What does a finding of “not established” mean, and how does the DCF investigator reach that conclusion? In Hank’s case, the Appellate Division was called upon to answer this question and provide him both clarity and peace of mind. The court noted a finding of not established means there is no preponderance of the evidence that a child was abused or neglected, but there was evidence that a child was harmed or placed at risk of harm. Since Hank said Caroline ran herself into the wall and fell down, it was found that she was at least placed in some risk of harm, no matter how minimal. The court additionally held that in order for the DCF to return a “not established’ finding, as opposed to a finding of “unsubstantiated”, there must be “fair support” for such a determination in the record, and that the DCF considered all essential documents and facts.
Overturning the Finding in Our Client’s Favor
Giving what was stated consistently by Hank, the arguments brought forth by our team of Livingston family lawyers, and the decisions of the DCF investigator, it was argued through the appeal that only an “unfounded” finding would be fair and accurate. Thanks to our work and deliberations, the Court reversed the “not established” finding and ruled that an “unfounded” finding was fitting. It was noted that the DCF failed to collect documented evidence that would have been relevant to the investigation, which means no useful evidence was reviewed at all. The Court also found the DCF failed to consider the “competing evidence,” such as Hank’s own testimonies and the lack of injury to Caroline. All in all, the DCF did not observe any relevant evidence of potential danger to Caroline and the “not established” finding was inappropriate, prompting the reversal.