Supreme Court of New Jersey Assesses Constitutionality of “Not Established” Investigatory Findings by the Department of Children and Families

It happens in family and matrimonial disputes that litigants are investigated by the Department of abuse-300x198Children and Families, which investigate claims of child abuse and neglect.  In a recently published decision in S.C. v. New Jersey Department of Children and Families, the Supreme Court of New Jersey addressed whether findings of “not established” by he Department of Children and Families (DCF) without a hearing and without informing the investigated person of the opportunity to challenge and supplement DCF’s record violates due process.

The Supreme Court explained that since 2013, DCF could make one of four findings: that an allegation of abuse or neglect was “substantiated”, “established”, “not established” or “unfounded” pursuant to N.J.A.C. 3A:10-7.3(c).   A finding of “not established” would mean that findings are based on some evidence of a child being harmed or placed at risk of harm, but not necessarily by a preponderance of the evidence. A finding that an allegation is “unfounded” is subject to expunction.   A record has to be retained for any of the other findings. While DCF records are intended to be confidential, N.J.S.A. 9:6-810a(a) provides for circumstances in which the release of information about reports to other agencies.

In this case, a mother was accused of abusing one of her children by engaging in corporal punishment.  The incident was reported to the Department of Children and Families (DCF) after the 7 year old boy refused to make a Mother’s Day card for his mother at school, claiming that she hit him with an open hand and with a spatula.   When DCF interviewed the boy, he said that his mother “smacks” him, and that she has hit him on the bottom with a spatula, although he could not remember when that had last happened.  He also said that his father hit him with his hand.  The child’s sisters told DCF that their parents sometimes hit them with an open hand but denied that their parents hit them with a spatula.  None of the children had marks or injuries.  The children’s school principle stated that the boy’s parents were involved, that school personnel had not had concerns about the family, and that the boy had behavioral problems in the past but that his behavior had improved. The boy’s mother admitted to hitting the children with an open hand but denied hitting them with a spatula. She said she smacks a spatula on the counter to get the children’s attention.  The boy’s father admitted to spanking the children lightly, but denied hitting the children or seeing his wife hit the children with any objects.  He had seen her smack the counter with a spatula.

DCF wrote to the boy’s school, stating that the investigation was complete and that DCF determined no need to provide services to the children.  The Department classified the allegations of physical abuse as “not established”. The boy’s mother was not permitted an administrative appeal opportunity and was given no opportunity to review, supplement or discuss DCF’s investigatory materials before the “not established” decision was issued.

She pursued an appeal of the “not established” finding in the Appellate Division, arguing that it was arbitrary and that her right to due process was violated because she did not have a hearing or a chance to challenge the evidence relied on by DCF.  She noted that the “not established” finding is retained by DCF and could be used against her in other settings against her, such as if there were a later investigation and DCF wanted to show a pattern of abuse. She further argued that the DCF’s conclusory letter did not satisfy due process requirements because it did not provide a meaningful explanation of the evidence relied on by DCF when it made its finding, which also inhibits judicial review of the finding.  The Appellate Division disagreed, holding that a “not established” finding is “purely investigatory in nature” and disagreeing that the “not established” finding was arbitrary, capricious or unreasonable because there was some evidence that the mother had hit the children.

The Supreme Court addressed not only the findings below, but whether the “not established” finding should exist at all.  The Court recognized that the conclusion of DCF  based on an investigation by an administrative agency, not an adjudication. As such, the failure to hold a hearing did not violate S.C.’s due process rights.

The Supreme Court found no private protectible due process interest concerning the investigatory findings of DCF, nor is there ia private due process interest that outweighs the importance of the government need in situations where the Legislature has determined that other government agencies may need DCF’s investigatory findings  that were not deemed to be “unfounded”.  A finding of “not established” does not reach any conclusion that child abuse occurred, as it would with an “established” finding.

The Supreme Court held that the DCF letter to the S.C. with the “not established” finding did not inform her of the basis for the “not established” finding and there is no adequate method of formally making known to the parent who is being investigated about the opportunity to be heard informally or to be able to rebut or supplement the record.  The Supreme Court did not disagree with criticism from the New Jersey Bar that the “not established” finding is vague, because all that is known about the finding is that there was “some” evidence of harm or risk of harm to the child, but that there was not a “preponderance” of the evidence.  But the standard and how it is evaluated is not known. Rather, the Supreme Court stated that the notice sent by DCF to the investigated parent should include a summary of the support for the finding, and DCF’s reasoning should be transparently disclosed.  Additionally, the person under investigation should be informed of the opportunity to rebut DCF’s conclusion or to supplement the record.  The process of only making the record available unless an appeal is filed is not a substitute for basic notice and opportunity to be heard.

The Supreme Court did not eliminate the “not established” finding, however, but left it to DCF to clarify the standard.

DCF investigations can be frightening and confusing.  The law firm of Yudes Family Law is here to help you.