When the Division of Child Protection and Permanency (DCPP) receives an allegation of abuse or neglect, they are mandated by law to investigate it. The investigation will end in one of four findings: Substantiated, Established, Not Established or Unfounded. “Established” and “Substantiated” are both considered findings of abuse or neglect and allow the accused party a hearing to contest the findings.
The difference between Unfounded and Not Established can be subtle but important. Both findings mean that there was not a preponderance of evidence that a child was abused or neglected but officially, Not Established means that the evidence indicates a child was harmed or placed at risk of harm. In reality, Not Established can cover a whole host of situations. Parents have received Not Established findings for spanking a child, for driving intoxicated with a child in the car, and everything in between. Because findings generally rest on the opinion of an individual caseworker, they are extremely arbitrary. One only has to review the case law to see the range of allegations that qualify as Not Established.
As such, depending on the situation, receiving a finding of Not Established can be a great relief for a parent or an outrageous miscarriage of justice. One of the most frustrating things for a parent receiving a Not Established finding is that the finding letter they receive from the Division is a form letter and gives absolutely no indication of what the potential risk or harm is. With little variation the letter will read like this:
“CP&P conducted its required investigation and determined that the allegation is Not Established. A record of the incident will be maintained in CP&C files. Current law provides that this information may not be disclosed by NJSA 9:6-8.10a. A finding of Not Established is not subject to an administrative appeal.
New Jersey Administrative Code at NJAC 10:129-7.3c(3), defines “not established” as follows: an allegation shall be Not Established If there is not a preponderance of the evidence that a child is an abused or neglected child as defined in NJSA 9:6-8.21, but evidence indicates that the child was harmed or was placed at risk of harm.”
Perhaps the parent’s caseworker will share with the parent why they received a “Not Established” and what the purported risk or harm is, but DCPP is under no obligation to do so and a parent certainly will not receive anything official with that information. If the case is not in DCPP litigation, as many Not Established findings are, then a parent cannot have access to the underlying Division records without filing a motion, which is rarely granted.
From reading the form letter, it is easy to understand why many parents do not think they have a right to appeal this finding. This erroneous impression is often bolstered by what they are hearing from their caseworker: that they cannot appeal a Not Established finding. While a parent cannot challenge the finding by way of a trial where they can call witnesses, cross-examine the state’s witnesses, and introduce evidence, a parent can appeal the finding directly to the Appellate Division. One of the benefits of filing an appeal with the Appellate Division is that the parent will then receive the underlying Division records that supposedly support the Division’s Finding. As Appellate practitioners know, it requires little effort and time to file a Notice of Appeal and Case Information Statement. It can be worthwhile to many parents to file these initial documents just to receive the discovery before deciding whether to proceed with the appeal.
As with any appeal, the results are not guaranteed. State agencies such as DCPP are generally afforded great deference as to their administrative findings. However, more and more Not Established findings are being overturned or remanded by the Appellate Division either on the grounds that the finding was arbitrary, capricious, and unreasonable, or because the record is so lacking that the Appellate Division cannot determine if there was a reasonable basis for the agency’s decision.
Several of these issues are currently pending before the New Jersey Supreme Court in the case of S.C. v. N.J. Dept. of Children and Families. Oral arguments are set to take place on November 18, 2019. Before the Court is not only the specific fact pattern in S.C. and whether the Division’s finding of Not Established was supported by credible evidence, but also whether a parent’s Due Process rights are violated by not being afforded a hearing and/or receiving the standard form letter issued for Not Established findings. Practitioners such as myself have been waiting since the advent of the four-tier system (Substantial, Established, Not Established, or Unfounded) for the Supreme Court to weigh in on these important questions. In the meantime, a parent should know they have an absolute right to appeal a Not Established finding and should speak to an attorney about their right to do so.