NJ Supreme Court Raises Concerns About DCF’s “Not Established” Standard

In S.C. v. New Jersey Department of Children and Families (A-57-18/081870) (May 27, 2020), the Supreme Court of New Jersey raised serious concerns about the “not established” finding used by the New Jersey Department of Children and Families (DCF or Department), characterizing it as “vague, amorphous, and incapable of any objective calibration” because it requires less than a preponderance of the evidence. However, because the issue was not raised by the plaintiff, the court declined to abolish the standard.

NJ Supreme Court Raises Concerns About DCF’s “Not Established” Standard

Facts of S.C. v. New Jersey Department of Children and Families

The case involves DCF’s investigation into a claim that a mother, S.C., abused her seven-year-old son by engaging in corporal punishment. The investigation concluded that the claim of abuse was “not established.” Pursuant to N.J.A.C. 10:129-7.3c(3), the Division enters a finding of “Not Established” when some evidence indicates that a child was harmed or placed at some risk of harm, but there is not a preponderance of evidence that the child has been abused or neglected per N.J.S.A. 9:6-8.21.

DCF sent a letter informing S.C. of that finding, but the letter provided little detail and no explanation for that determination. Because the abuse allegation was deemed “not established,” it is not eligible to be expunged. The Legislature requires expunction only for child abuse or neglect allegations determined to be “unfounded,” and no statutory or regulatory provision authorizes expunging allegations of the other three possible determinations. Although the record and report involving S.C.’s “not established” finding is statutorily confidential, the information can be made available under circumstances identified by the Legislature in N.J.S.A. 9:6-8.10a.

S.C. appealed the Department’s action, claiming (1) a deprivation of her due process rights because she was not afforded a hearing and (2) that the Department’s “not established” finding was arbitrary and capricious because the record was insufficient to support a finding that her son was harmed. The Appellate Division’s decision affirmed the Department’s action, with a concurrence expressing a need for revision in the Department’s processes.

NJ Supreme Court’s Decision in

The New Jersey Supreme Court reversed and remanded.  “We remand (a) for the Department to provide improved notice of the basis on which its investigation has found some evidence — which we here stress must be some credible evidence — to support the allegation of harm; and (b) for S.C. to have an informal opportunity before the Department to rebut and/or supplement the record before the Department finalizes its finding,” Justice Jaynee LaVecchia wrote.

In reaching its decision, the court concluded that S.C.’s reputational interest could be properly respected without the requirement of a full-fledged adjudicatory hearing. However, it further concluded that due process requires notice and opportunity to be heard. Justice LaVecchia explained:

When the Department is concluding an investigation into suspected child abuse or neglect and expects to issue a finding of “not established,” notice — meaningful for due process considerations — of that investigatory finding should be provided to the individual. The notice should include a summary of the support for the finding, and the Department’s reasoning should be transparently disclosed. Moreover, the individual must be informed of his or her opportunity to rebut the Department’s conclusion or supplement the record so that the informal opportunity to be heard before the agency is not illusory.

With respect to the DCF standard for making a finding of “not established,” the Court agreed with the criticism that the “standard is vague, amorphous, and incapable of any objective calibration” as currently written. “All we know is that [the ‘not established’ finding] requires less than a preponderance of the evidence and involves ‘some’ evidence,” Justice LaVecchia wrote. “At the very least, the ‘some evidence’ description advanced by the Department must be understood to be ‘credible evidence.’ Beyond that one cannot know what the Department intends by its standard and how it is to be evaluated.”

Nonetheless, the New Jersey Supreme Court held that it was DCF’s responsibility to reexamine and clarify its standard. “S.C. has not raised a direct challenge to the validity of having a ‘not established’ finding category in the Department’s regulations, although some amici have urged that the category be declared illegitimate and eliminated. We will not address an argument not raised by appellant, particularly when the Department advances a facially legitimate basis for such findings’ use and an argument that the regulation’s promulgation was reasonably within its statutory delegation of authority,” Justice LaVecchia wrote. “However, we recognize problems with the standard as presently articulated. It would be well worth the effort of the Department to revisit its regulatory language concerning the standard for making a ‘not established’ finding as well as its processes related to such findings. Our review of this matter brings to light shortcomings in fairness for parents and guardians involved in investigations that lead to such findings and which may require appellate review.”

Justice Barry Albin wrote separately, concurring in part, and dissenting in part. “I believe the majority’s decision clearly leads to a better system of justice by imposing due process requirements and calling for a new evidentiary standard for ‘not established’ findings, and I applaud that effort,” he wrote. “Nevertheless, I believe that the Department’s ‘not established’ standard is so fundamentally flawed that it defies even this Court’s remedial measures to save it.”

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