August 19, 2019
NJSBA seeks to participate as amicus curiae in matter regarding child welfare
The New Jersey State Bar Association filed a motion seeking to participate as amicus curiae before the Supreme Court on the question of whether the category of “not established” under the child welfare laws is constitutional. In the matter of S.C. v. DCPP, the Supreme Court is being asked to decide whether a parent/caregiver is entitled to a hearing to appeal a finding by the Division of Child Protection and Permanency of “not established” following an investigation of abuse or neglect.
Under the current law, the finding of “not established,” permitted pursuant to regulation, is made when there is not a preponderance of the evidence indicating abuse and neglect, but there is “some” evidence that a parent/caregiver has put his or her child at risk of harm. While it does not result in listing on the child abuse registry, a finding of “not established” is permanently recorded by the division, with no opportunity for expungement. Further, there are at least 23 instances where the division is able to release the information, which can lead to negative consequences for the parent/ caregiver. Comparatively, a finding of “unfounded,” as established by statute, is generally expunged.
In the matter before the Supreme Court, the parent/caregiver was alleged to have abused or neglected her son after reports to the school by the son regarding an incident where he claimed his mother hit him with an open hand and with a spatula. The incident was not corroborated by anyone else; however, occasional spanking was reported by the boy’s siblings and admitted by the parents. The investigator concluded the children were safe in their parents’ care, and found the allegation to be “not established.” The finding was reported in a form letter sent to the parent/ caregiver, without an opportunity for rebuttal or appeal.
Arguing that her due process rights were being violated, the parent/caregiver challenged the decision, arguing she should have been afforded a right to a hearing. Other stakeholders have argued the finding of “not established” is an unnecessary category because of the questionable standard for the finding.
In its proposed brief drafted by NJSBA First Vice President Jeralyn L. Lawrence and Family Law Section members Ronald G. Lieberman, Thomas J. DeCataldo Jr. and Daniel A. Burton, the association asserts that a “not established” finding is based on an amorphous standard that inevitably leads to an arbitrary and capricious result, and should be abolished. “The potential for misuse, the likelihood of interference with an individual’s right to parent, and the consequences of a damaged reputation with no real course of remediation is clear and harmful,” argues the association.
Other parties participating as amicus curiae include Legal Services of New Jersey and the American Civil Liberties Union. Certification has been granted in the matter, but no oral argument has been scheduled at this time.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.