N.J. Supreme Court to DCPP: You Can Keep “Not Established” Finding (but you have to work a little harder for it).
Those of us that practice in the child abuse sector of Family Law waited with baited breath to see what the NJ Supreme Court would do with S.C. v N.J. Department of Children and Families, the first case to go before the Court to take on the murky Not Established finding. From oral argument, it seemed the Court had been waiting for the right litigant to make a case and they found one in S.C.
S.C. received a Not Established finding after one of her 7-year old triplets alleged she hit him with her hands and a spatula. Like all parents who receive a Not Established finding, S.C. went through the standard Division investigation process of being interviewed once by the workers, who also interviewed the children as well as collateral sources such as the principal of the child’s school, and then received a form letter informing her that “Not Established” meant there was some evidence that a child was harmed or placed at risk of harm but there was not a preponderance of the evidence that the child had been abuse or neglected. Also like all parents to receive such a finding, S.C. did not receive a hearing to challenge the finding or any specifics as to what the “some evidence” was that indicated that her children were harmed or placed at risk of harm.
In her challenge to the Supreme Court, S.C. made three main arguments: 1) the finding was not supported by the record and was therefore arbitrary or capricious; 2) her due process rights were violated since she had no opportunity to challenge the evidence DCPP relied on and 3) the finding failed due process because DCPP offered no meaningful explanation as to the “some evidence” it relied on in making the finding and the lack of factual findings prevented S.C. from meaningful judicial review.
Notably, S.C. herself did not argue for abolishing the Not Established finding all together (although it became clear at oral argument that she did support its elimination). Several Amici including NJSBA and Legal Services of NJ did argue that it should be abolished since it was “amorphous” and leads to arbitrary and capricious outcomes.
DCPP defended the Not Established finding and asserted that it helped the agency in its investigatory task by maintaining the records of these lesser allegations in perpetuity. It claimed that S.C. received proper due process since she had the opportunity to explain her position during the investigation and records related to the investigation and finding are confidential. (For the most part – there is a handful of situations in which they can be shared or released, for example in a custody matter to the family law judge).
The Court rejected S.C.’s argument that a parent’s due process rights required a hearing. It found that since the records are investigatory and not judicial that the “evidence” DCPP relies on to make its findings are not adjudicated facts. It also found that the private interest of a parent wanting the records expunged was outweighed by the public interest of DCPP retaining the information in the interest of protecting children. The Court noted that when the confidential information is released to a court in a family law proceeding, that such a process provided the parent “adequate opportunity to be heard on the threshold issue of admissibility and thereafter to cross-examine and offer contrary proofs.” (This is of interest to family law practitioners, since the process the court describes is a rare one – usually the records are released to the judge for in camera review and then the court releases the records in its discretion to the parties without any kind of threshold argument as to admissibility or an opportunity to cross-examine.)
Despite disagreeing that parents deserved a hearing, the Court did agree that the current process does not do enough to protect due process. DCPP must provide the parent a summary of the evidence it relies on to make the finding and give the parent an opportunity to rebut it before the finding is finalized. Prior to this decision, the only sure way a parent could obtain this information was to file an appeal in the Appellate Division. It is unclear if this means that litigants will be able to review or keep the documentation in their file now or how DCPP will provide this information to the parents. Likely, it will remain confidential and not discoverable. In addition, the Court found that the “some evidence” standard was amorphous and troubling and ruled that the “some evidence” at least needs to be “credible evidence.”