Notice and Opportunity to be Heard: How the Department of Children & Families Got it Wrong

By: Derek J. Demeri 

Imagine: you are preparing dinner one day in your home when the N.J. Department of Children & Families (D.C.F.) shows up to investigate an allegation of child abuse. Shocked, you comply with all of D.C.F.’s requests and questions but, despite knowing your family has never engaged in child abuse or neglect, a lingering fear remains that perhaps the investigators will come to another conclusion about your family. After weeks (maybe months) of worrying, you receive a letter to your relief stating the allegation of child abuse was “not established.” That moment of relief, however, retreats once you learn what D.C.F. means by not established. 

In S.C. v. D.C.F., decided May 27, 2020, the Supreme Court of New Jersey addressed the meaning of the “not established” standard. Since 2013, D.C.F. has labeled their findings as either substantiated, established, not established, or unfounded. A finding of substantiated or established means that a child was abused or neglected while a finding of not established or unfounded means there was no child abuse or neglect. However, not established findings mean there was “evidence” to show the child was harmed or placed at a risk of harm but there was not a preponderance of evidence that a child was abused or neglected. Unfounded investigations are eligible for expungement while the records of not established findings are retained should there be any future investigations. Non-expunged records are generally kept confidential; however, N.J.S.A. 9:6-8.10a(a) allows these records to be released under certain circumstances.  

S.C. (whose name the court redacted to protect the family’s privacy) is one of many families to have received a letter with a “not established” finding. In fact, about 70% of D.C.F. investigations in 2017 concluded with the same label. The letter S.C. received, per D.C.F. practice, provided almost no detail other than the result of the investigation. The letter had no explanation as to what evidence there was for the not established determination and S.C. had no opportunity to provide any context or contrary evidence to the finding that their child was harmed or placed at a risk of harm. 

S.C. was one of the lucky families to eventually get a sense of what evidence D.C.F. had to determine their children were harmed or placed at risk of harm. Regrettably, S.C. only learned what evidence there was because of her appeal to the Appellate Division. D.C.F.’s primary evidence was the fact that S.C. sometimes slapped the kitchen counter with a spatula to get her kids’ attention and that S.C. occasionally slapped the kids with an open hand when they were misbehaving. 

The Supreme Court noted that due process concerns were implicated because of the potential for the D.C.F.’s finding to affect S.C.’s reputation. Analyzing due process required balancing the government function, here an agency that investigates allegations of child abuse and neglect, with the privacy interest, in this case S.C.’s interest in not having these records disseminated to others. The Court found, at a minimum, due process requires notice and opportunity to be heard. 

On this basis, the Supreme Court remanded the case and found the “not established” standard “vague, amorphous, and incapable of any objective calibration.” On remand, D.C.F. is required to provide notice of the specific evidence it used to support the allegation of harm and to provide S.C. with an informal opportunity to rebut or supplement the record before D.C.F. finalized its findings. The Court emphasized that the evidence used must be credible and D.C.F.’s reasoning should be “transparently disclosed.” Since D.C.F. is merely investigating and there is no evidence of child abuse under a not established finding, the opportunity to be heard need only be informal and does not require a trial-type setting. Ultimately, these requirements will result in significant changes in how D.C.F. operates under the not established standard. 

While the Supreme Court was deciding this case, many arguments were raised addressing whether the category of “not established” should be eliminated all together. This is what Justice Albin pushed for in his concurring/dissenting opinion for the Supreme Court. Given how systemic racism contributes to a culture in which Black families are more likely to be seen as putting their children at risk compared to their white counterparts, having such an amorphous label may not be in the best interest of New Jersey families. Despite the many problems this category has created, the Court left the status of the “not established” standard unanswered waiting instead for another day to address it. 

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