Appellate Division strikes down another "Not Established" finding in DCF v. N.C. & D.C.

Readers of this blog may remember our successful published decision earlier this year in DCF v. R.R. in which the Appellate Decision reversed DCPP’s administrative finding of Not Established of a parent we represented. In what we hope is a trend, the Appellate Division reversed another Not Established decision recently in the unpublished case of DCF v. N.C. & D.C.

This case concerned two Not Established findings – one against each parent, “Doug” and
“Nancy.” Doug and Nancy have a ten-month old daughter, Beth, and Doug has a nine-year old daughter, Kim, from a previous relationship. The Division’s investigation of Nancy and Doug was a spin-off investigation of its investigation into Doug associated with a report of physical abuse of Kim. Beth was found to have been appropriately cared for and free of any marks or bruises. When the Division worker came to investigate, Doug kept trying to speak to the worker about the allegations made about Kim, to which the worker refused to speak to him about.

During the same process, Doug and Nancy voluntarily told the worker about a domestic violence incidence that had occurred between them and that although both parties were arrested, Beth had been upstairs asleep in her crib the entire time and left in the care of Nancy’s adult brother who also lived in the home. The Division found the allegations against both parents were Not Established reasoning that although Beth appeared unharmed, Kim had been hit with a belt repeatedly and had suffered bruising. The Division’s investigative summary also noted the domestic violence incident and that Beth was placed at risk of harm due to the domestic violence and Doug’s use of excessive physical discipline.

The Appellate Division, while acknowledging the deference agency decisions are given, was troubled by the lack of evidence in the record to support its finding. It notes that Beth was well cared for, unharmed, was not present during the domestic violence incident and had been left in the care of another adult. It also noted that nothing in the record showed that Beth either heard or saw the incident.

Similarly, the Appellate Division focused on the lack of evidence in the record supporting the Division’s finding against Doug relating to physical discipline. The only evidence provided was the police report of the incident, which noted the case was closed. No other evidence was provided and the caseworker had refused to discuss the allegations during her investigation of Beth. While it reversed the findings as to Doug and Nancy for abuse and neglect, the Appellate Division remanded as to the issue of excessive physical discipline by Doug noting that DCPP should review the existing investigation record about the physical abuse allegations against Kim and make specific factual findings regarding its spin off investigation of Beth.

This is the second decision in recent months where the Appellate Division found fault in the “form” letters DCPP sends to parents containing the findings (See the concurring opinion in DCF v. S.C.). These letters lack any information as to what evidence, if any, on which DCPP bases its finding. Litigants only discover the reasoning behind a Not Established DCPP finding if they file an Appeal, which provides them with the DCPP records, previously unobtainable due to confidentiality regulations.

As a state agency, DCPP is granted a significant amount of deference in making its determinations. It seems that with the increasing number of Not Established findings coming before the Appellate Division, the Division’s deference is being challenged and held to a hire standard. As the Appellate Division noted in R.R., a Not Established finding “permanently tars a parent with a finding that there was something to the allegation.” Most parents consider this a pretty significant event. If the Appellate Division continues to reverse these findings, hopefully the Division will begin to as well.

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