S.C. v. New Jersey Department of Children and Families (081870) (Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
S.C. v. New Jersey Department of Children and Families (A-57-18) (081870)
Argued November 18, 2019 -- Decided May 27, 2020
LaVECCHIA, J., writing for the Court.
This appeal involves the investigation into a claim that a mother, S.C., abused her
seven-year-old son by engaging in corporal punishment. The Department of Children
and Families (Department) concluded, after its investigation, that the claim of abuse was
“not established.” Because the abuse allegation was deemed “not established” rather than
“unfounded,” it is not eligible to be expunged. S.C. appealed the Department’s action,
claiming (1) a deprivation of her due process rights because she was not afforded a
hearing and (2) that the Department’s “not established” finding was arbitrary and
capricious because the record was insufficient to support a finding that her son was
harmed. S.C. has not raised a direct challenge to the validity of having a “not
established” finding category in the Department’s regulations, although some amici have
urged that the category be declared illegitimate and eliminated.
In May 2016, the Department received a report of suspected child abuse from an
education official in a school district. The abuse allegedly concerned one of S.C.’s
triplets, “Luke,” who refused to make a Mother’s Day card for S.C. and said, among
other things, that his mother hits him with an open hand and with a spatula. A
Department investigator interviewed Luke, his sisters, S.C., and her husband (“Martin”).
The investigator also visited the children’s school. The children’s principal said that on
the day that Luke made the allegation the boy was having a bad week, which was unusual
for him. Although he had behavioral problems in the past, she said that Luke had
“significantly improved.” She also stated that she was surprised when Luke reported that
his mother hit him, adding that the parents are “very involved” and that, prior to this,
school personnel had not had other concerns with the family.
When the investigator interviewed Luke, he said that his mother “smacks” him,
and that she has “hit him on his butt with [a] spatula[,]” but he could not remember the
last time either happened. He said that his father also hits him with his hand. Luke’s
sisters told the investigator that sometimes their parents hit them with an open hand, but
each denied having been hit with a spatula. The investigator observed no marks or
bruises on any of the children.
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The investigator interviewed S.C. and Martin during an unannounced home visit.
S.C. admitted that she has hit the children with an open hand. She denied that she has
used a spatula to strike the children but “admitted that she smacks the spatula on the
counter to get their attention.” Martin admitted to “lightly” spanking his children on
occasion. He denied using objects and denied having seen his wife hit the children with a
spatula. However, he said he has seen his wife hit a spatula on the counter to get the
children’s attention. The investigator added that the home was “fully furnished, clean
and well organized.” Each child had appropriate sleeping arrangements and sufficient
food. The utilities were on and the investigator did not observe any hazards.
The above information in the investigator’s report resulted in the Department’s
classifying the allegations of physical abuse against S.C. as “not established.” That
designation signifies that “there is not a preponderance of the evidence that a child is an
abused or neglected child as defined in N.J.S.A. 9:6-8.21, but evidence indicates that the
child was harmed or was placed at risk of harm.” N.J.A.C. 3A:10-7.3(c)(3).
The Department sent a letter to the children’s school stating that the investigation
was complete and that it had determined no need to provide services to the children. The
Department also sent a letter to S.C., informing her that its investigation into the
allegations was complete and that it had determined that the allegations were “Not
Established.” S.C. was not allowed an administrative appeal opportunity and, apparently,
had no opportunity to review, supplement, or discuss the Department’s investigatory
materials before the decision issued. Thereafter she filed an appeal in the Appellate
Division from the agency action finding the allegations of abuse to be “not established.”
The Appellate Division was unpersuaded that an adjudicatory hearing had to be
provided when an investigation results in a “not established” finding, which it regarded as
“purely investigatory in nature” and which is not disseminated. The Appellate Division
also held that the Department’s “not established” finding in this matter was not arbitrary,
capricious, and unreasonable, pointing to facts that provided “‘some evidence’ indicating
that S.C. hit the children, even without a spatula, when she was upset with their behavior,
leading to the possibility that she could misgauge how much force she was using and put
them at risk of harm.” In a concurring opinion, Judge Messano, P.J.A.D., agreed that the
denial of an administrative hearing to challenge a “not established” finding did not
violate S.C.’s due process rights but wrote separately to express two concerns. First, the
letter the Department sent to S.C. “did nothing but parrot the regulatory language and
advise S.C. of the consequences of the findings”; “the letter fail[ed] to state, even in
conclusory terms, what evidence supported the finding.” Second, the letter’s lack of
information was pertinent because, although due process rights are not violated, a “not
established” finding may have negative consequences in the future because the record is
not subject to expunction.
The Court granted S.C.’s petition for certification. 237 N.J. 165 (2019).
2
HELD: The Court reverses and remands (a) for the Department to provide improved
notice of the basis on which its investigation has found some evidence -- which the Court
stresses must be some credible evidence -- to support the allegation of harm; and (b) for
S.C. to have an informal opportunity before the Department to rebut and/or supplement
the record before the Department finalizes its finding. The Court does not address the
amici’s challenge to the validity of the “not established” category but recognizes
problems with the standard as presently articulated and notes that it would be well worth
the effort of the Department to revisit its regulatory language concerning the standard for
making a “not established” finding as well as its processes related to such findings.
1. When the Department receives an allegation of child abuse or neglect, it must
investigate and determine “whether abuse or neglect has occurred.” N.J.A.C. 3A:10-
7.3(a) to (b). “[T]he Department representative shall make a finding that an allegation is
‘substantiated,’ ‘established,’ ‘not established,’ or ‘unfounded.’” N.J.A.C. 3A:10-7.3(c).
The differentiation among those four categories creates two general classes of findings.
“A finding of either established or substantiated shall constitute a determination . . . that a
child is an abused or neglected child,” while “[a] finding of either not established or
unfounded shall constitute a determination . . . that a child is not an abused or neglected
child.” N.J.A.C. 3A:10-7.3(d). A finding that an allegation is “unfounded” is subject to
expunction. A record containing a “substantiated,” “established,” or “not established”
finding is required to be retained. (pp. 21-25)
2. Prior to 2013, Department investigations could result in one of two findings:
“substantiated” or “unfounded.” The current four-category system took effect in 2013
following robust public input. The Department explained its intent in differentiating
between “not established” and “unfounded” when rejecting a comment that “not
established” findings should be eligible for expunction: “The critical distinction . . . is
that not established findings are based on some evidence, though not necessarily a
preponderance of evidence, that a child was harmed or placed at risk of harm.” And to
prepare for “the investigation of future allegations,” the Department determined that the
“information contained in records of not established cases must be maintained.” For
records the Department retains, confidentiality is the presumptive starting point, but
N.J.S.A. 9:6-8.10a(a) provides for the release of information regarding reports of child
abuse in twenty-two enumerated circumstances, and the Department may consider a “not
established” finding in its child protection and welfare work. (pp. 25-31)
3. When determining the protections due process demands in a given situation, the Court
applies the balancing test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Mathews
recognizes that an evidentiary hearing “is neither a required, nor even the most effective,
method of decisionmaking in all circumstances,” so long as the person whose rights are
affected is given an opportunity to assert his or her claim prior to any administrative
action. Id. at 348-49. Thus, minimally, notice and opportunity to be heard are the
essentials of due process. (pp. 31-33)
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4. Here, S.C. underwent a Department investigation based on an alleged claim that she
engaged in child abuse. An investigation is distinct from an adjudication of facts and
gives rise to a different set of expectations. When a general fact-finding investigation is
being conducted, it is not necessary that the full panoply of judicial procedures be used.
Here, the Appellate Division rightly viewed S.C.’s claimed right to an adjudicatory
hearing through the prism of the Department’s investigatory finding. The Department
has not adjudicated facts or reached any sort of conclusion about what actually occurred
when it applies a “not established” finding; rather, it merely ascribes what functions as a
working label to the evidence collected through investigation. That distinction
substantially lessens any private interest impact that S.C. can claim, and any claimed
private interest is far outweighed by the Department’s legitimate reasons for acting
knowledgeably in future investigations. The Court separately considers S.C.’s interest in
the investigatory finding in connection with the exceptions and disclosures enumerated in
N.J.S.A. 9:6-8.10a. The Court concludes that due process does not compel imposition of
a formalized adversarial trial-type process in the setting of a “not established” finding --
where no child abuse conclusion has been reached. (pp. 33-42)
5. S.C.’s reputational interest can be properly respected without the requirement of a
full-fledged adjudicatory hearing. The essential elements of notice and opportunity to be
heard are what due process protects. In keeping with those essentials, when the
Department is concluding an investigation into suspected child abuse or neglect and
expects to issue a finding of “not established,” notice -- meaningful for due process
considerations -- of that investigatory finding should be provided to the individual. The
notice should include a summary of the support for the finding, and the Department’s
reasoning should be transparently disclosed. Moreover, the individual must be informed
of his or her opportunity to rebut the Department’s conclusion or supplement the record
so that the informal opportunity to be heard before the agency is not illusory. The current
process of not making a record available unless and until an appeal is filed is no
substitute. (pp. 42-44)
6. Here, the conclusory letter that the Department sent to S.C. failed to inform her of the
basis for the Department’s “not established” finding. And there does not appear to be an
adequate means of formally making known to a parent or guardian under investigation
the opportunity to be heard informally and rebut or supplement the record. Corrective
action by the Department in the future can solve that. (p. 44)
7. With respect to the Department’s standard for making a finding of “not established,”
the Court agrees with the criticism that the standard for that finding, as written now, is
vague, amorphous, and incapable of any objective calibration. All that is known is that it
requires less than a preponderance of the evidence and involves “some” evidence. At the
very least, the “some evidence” description advanced by the Department must be
understood to be “credible evidence.” Beyond that one cannot know what the
Department intends by its standard and how it is to be evaluated. The Court leaves to the
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Department the responsibility to reexamine and clarify its standard. No facial challenge
is presented in this matter and the Court will not reach the issue without that. (pp. 44-46)
REVERSED and REMANDED.
JUSTICE ALBIN, concurring in part and dissenting in part, agrees with the
majority that the Department’s “some evidence” standard for making “not established”
determinations is vague and amorphous and has led to shortcomings in fairness for
parents and guardians. However, Justice Albin would go further and strike down the “not
established” category. Justice Albin writes that the Department, in creating a “not
established” category, has exceeded the authority delegated to it by the Legislature. The
“not established” category, in Justice Albin’s view, has allowed the Department to elide
making the determination that the Legislature expects of it -- a determination whether the
allegation is unfounded -- and the Department’s good intentions cannot save a regulation
that undermines the Title Nine expungement statute. Justice Albin would end this case
today and spare S.C. the hardship and expense of a remand because the Department’s
own findings establish that the abuse and neglect allegations in S.C.’s case are
“unfounded,” as defined by the Department’s own regulation.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a separate opinion, concurring in part and dissenting in part.
5
SUPREME COURT OF NEW JERSEY
A-57 September Term 2018
081870
S.C.,
Plaintiff-Appellant,
v.
New Jersey Department of Children and Families,
Defendant-Respondent.
On certification to the Superior Court,
Appellate Division.
Argued Decided
November 18, 2019 May 27, 2020
Victoria D. Miranda argued the cause for appellant
(Williams Law Group, attorneys; Allison Williams, of
counsel and on the brief, and Victoria D. Miranda on
the briefs).
Peter Alvino, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General and Jason W. Rockwell, Assistant
Attorney General, of counsel, and Peter Alvino and
Julie B. Colonna, Deputy Attorney General, on the
briefs).
Melville D. Miller Jr. argued the cause for amicus
curiae Legal Services of New Jersey (Legal Services
of New Jersey, attorneys; Melville D. Miller Jr., Mary
1
M. McManus-Smith, Jeyanthi C. Rajaraman, Chiori
Kaneko, and Sylvia L. Thomas, on the briefs).
Katherine Haas argued the cause for amicus curiae
American Civil Liberties Union on New Jersey
(American Civil Liberties Union Foundation and Fox
Rothschild, attorneys; Jacob S. Perskie and Victoria T.
Salami, of counsel and on the brief, and Jeanne
LoCicero and Alexander Shalom, on the brief).
Deric Wu Assistant Deputy Public Defender, argued
the cause for amicus curiae Office of Parental
Representation (Joseph E. Krakora, Public Defender,
Office of Parental Representation, attorney; T. Gary
Mitchell, Deputy Public Defender, and Robyn A.
Veasey, Deputy Public Defender, of counsel, and
Deric Wu, of counsel and on the brief).
Jeralyn L. Lawrence argued the cause for amicus
curiae New Jersey State Bar Association (Evelyn
Padin, President, New Jersey State Bar Association,
attorneys; Jeralyn L. Lawrence, Daniel A. Burton,
Thomas J. DeCataldo, Jr., and Ronald G. Lieberman,
on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
The Department of Children and Families (Department) is charged with
the responsibility to investigate all allegations of child abuse or neglect. 1
Pursuant to its operational regulations, the Department’s investigation into
1
Although the Division of Child Protection and Permanency within the
Department performs this responsibility, see N.J.S.A. 9:6-8.11, we refer
throughout to the Department, which is the named defendant-respondent.
2
such allegations can result in one of four possible determinations. An
allegation can be “substantiated,” “established,” “not established,” or
“unfounded.” N.J.A.C. 3A:10-7.3(c). Different consequences flow from those
designations.
This appeal involves the Department’s investigation into a claim that a
mother, S.C., abused her seven-year-old son by engaging in corporal
punishment. The investigation concluded that the claim of abuse was “not
established.” The Department sent a letter informing S.C. of that finding, but
the letter provided little detail and no explanation for that determination.
Because the abuse allegation was deemed “not established,” it is not eligible to
be expunged. The Legislature requires expunction only for child abuse or
neglect allegations determined to be “unfounded,” see N.J.S.A. 9:6-8.40a, and
no statutory or regulatory provision authorizes expunging allegations of the
other three possible determinations. Although the record and report involving
S.C.’s “not established” finding is statutorily confidential, the information can
be made available under circumstances identified by the Legislature in
N.J.S.A. 9:6-8.10a.
S.C. appealed the Department’s action, claiming (1) a deprivation of her
due process rights because she was not afforded a hearing and (2) that the
Department’s “not established” finding was arbitrary and capricious because
3
the record was insufficient to support a finding that her son was harmed. The
Appellate Division’s decision affirmed the Department’s action, with a
concurrence expressing a need for revision in the Department’s processes.
We now reverse and require further action. We remand (a) for the
Department to provide improved notice of the basis on which its investigation
has found some evidence -- which we here stress must be some credible
evidence -- to support the allegation of harm; and (b) for S.C. to have an
informal opportunity before the Department to rebut and/or supplement the
record before the Department finalizes its finding. We reject that due process
considerations require the Department to conduct an adjudicative contested
case proceeding either internally or at the Office of Administrative Law for a
“not established” finding. That said, on the basis of the present record, we
cannot assess whether the “not established” finding in this instance was
arbitrary or capricious.
S.C. has not raised a direct challenge to the validity of having a “not
established” finding category in the Department’s regulations, although some
amici have urged that the category be declared illegitimate and eliminated.
We will not address an argument not raised by appellant, particularly when the
Department advances a facially legitimate basis for such findings’ use and an
argument that the regulation’s promulgation was reasonably within its
4
statutory delegation of authority. However, we recognize problems with the
standard as presently articulated. It would be well worth the effort of the
Department to revisit its regulatory language concerning the standard for
making a “not established” finding as well as its processes related to such
findings. Our review of this matter brings to light shortcomings in fairness for
parents and guardians involved in investigations that lead to such findings and
which may require appellate review.
I.
A.
The facts are gleaned from the Department’s investigatory file in this
matter. The file, redacted to protect identities and other information required
by law to be kept confidential, was not made available to S.C. until this matter
was appealed to the Appellate Division. 2
2
This is the procedure presently used by the Department. The Department
stated at oral argument that the investigative summary report is first revealed
to the family on appeal, at the latest, when the statement of items comprising
the record on appeal is filed. The only source of information concerning a
Department investigation a parent has prior to an appeal is through discussion
with a case worker during the investigation itself when information is collected
or through a discussion with the Department, if the parents so choose, under
N.J.S.A. 9:6-8.10a(b)(19) (allowing release of information “only to the extent
necessary” for parents to discuss Department “services,” to participate in “case
plan” development or implementation, or “to understand the basis for the
[D]epartment’s involvement”). After parents receive a letter from the
Department reporting the agency’s findings, their recourse is appellate review.
5
On May 4, 2016, the Department received a report of suspected child
abuse from an education official in a school district. The abuse allegedly
concerned one of S.C.’s triplets. The reporting source informed the
Department that S.C.’s son, Luke, 3 “disclosed that his mother hits him.”
According to the reporter, the information was revealed when Luke “refused to
make his mother a Mother’s Day card and stated that he hated her.” Luke then
said a number of other things: that his mother hits his “face, stomach, and
buttocks,” and that “one time his buttocks was as red as a fire truck”; that his
mother hits him with an open hand and with a spatula; and that the last time
S.C. hit him was two days prior, when he refused to shower. He also “stated
that one time he said that it didn’t hurt when he was hit so he got hit again.”
When Luke’s noncompliant behavior in school was noted by a school
official, and a report of alleged abuse was relayed to the Department, Luke and
his sisters were within days of turning eight years old. Luke was a special
needs student, classified as emotionally disturbed. Although Luke had been
challenged by behavioral issues in the past (while in kindergarten, he had
ripped down a shelf holding a TV monitor), according to his education case
manager, he was doing much better.
3
Pseudonyms are used to protect the family’s confidentiality.
6
The day after the alleged abuse was reported, a Department investigator
interviewed Luke, his sisters, S.C., and her husband (Martin). The investigator
also visited the children’s school.
The education case manager reiterated the allegations detailed in the
report from the previous day and added that S.C. and her husband “always
attend child study team meetings” and that “[t]he school had no other concerns
regarding the family.” Similarly, the children’s principal told the investigator
that on the day that Luke made the allegation the boy was having a bad week,
which was unusual for him. Although he had behavioral problems in the past,
she said that Luke had “significantly improved.” She also stated that she was
surprised when Luke reported that his mother hit him, adding that the parents
are “very involved” and that, prior to this, school personnel had not had other
concerns with the family.
When the investigator interviewed Luke, he told the investigator that he
understood the difference between a truth and a lie. With respect to his
mother, Luke stated that she counts “1, 2, 3” “a lot.” When asked what
happens when his mother gets to three, he responded, “It’s inappropriate.” In
particular, he told the investigator that his mother “smacks” him, and that she
has “hit him on his butt with [a] spatula[,]” but he could not remember the last
time either happened. Luke said that the smacks “kind of hurt[]” but he also
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thinks it is funny. He said that his father also hits him with his hand. During
the interview, he reported that he has been hit on the leg and butt but denied
ever being hit in the face. According to the investigator, Luke “appeared to be
clean and well kept,” and the investigator did not observe any marks or bruises
on the boy.
Luke’s sisters told the investigator that sometimes their parents hit them
with an open hand, but each denied having been hit with a spatula. Both
denied being fearful of either parent, and the investigator observed no marks or
bruises on either girl.
The investigator interviewed Luke’s parents in an unannounced home
visit. According to the investigator, Martin was initially “hesitant” to let her
inside their home. When told by the investigator why she was there, “he
responded that it is legal to hit children.” Each parent was interviewed
separately.
S.C. admitted to the investigator that she has hit the children with an
open hand. When having to correct the triplets’ behavior, she said that “she
threatens the children and then does not follow through.” She explained that
the children were getting too old for timeouts to be meaningful to correct poor
behavior. She denied that she has used a spatula to strike the children but
“admitted that she smacks the spatula on the counter to get their attention.”
8
S.C. also said that her husband hits the children occasionally. Finally, she
reported that it is “challenging at times” to discipline the triplets but that “she
will stick to sending the children to their rooms and removing privileges.” She
also told the investigator that she was endeavoring to have Luke’s classified
status removed.
Martin admitted to “lightly” spanking his children on occasion. He
denied using objects and denied having seen his wife hit the children with a
spatula. However, he said he has seen his wife hit a spatula on the counter to
get the children’s attention.
The investigator added that the home was “fully furnished, clean and
well organized.” Each child had appropriate sleeping arrangements and
sufficient food. The utilities were on and the investigator did not observe any
hazards.
The above information in the investigator’s report resulted in the
Department’s classifying the allegations of physical abuse against S.C. as “not
established.” That designation signifies that “there is not a preponderance of
the evidence that a child is an abused or neglected child as defined in N.J.S.A.
9:6-8.21, but evidence indicates that the child was harmed or was placed at
risk of harm.” N.J.A.C. 3A:10-7.3(c)(3). The allegations against S.C. were
9
not reported to the prosecutor’s office. Cf. N.J.S.A. 9:6-8.10a(e)
(“substantiated” findings must be forwarded to law enforcement).
On May 25, 2016, the Department sent a letter to the children’s school
stating that the investigation was complete and that it had determined no need
to provide services to the children. The same day, the Department sent a letter
to S.C., informing her that its investigation into the allegations was complete
and that it had determined that the allegations were “Not Established.”4 The
letter stated in full:
New Jersey law, as set forth in N.J.S.A. 9:6-8.11,
requires the Department of Children and Families
(DCF) Division of Child Protection and Permanency
(CP&P) to investigate all allegations of child abuse and
neglect. On May 4, 2016 the Division’s Bergen Central
Local Office received an allegation that [Luke and his
sisters] were abused.
CP&P conducted its required investigation and
determined that the allegation was Not Established. A
record of the incident will be maintained in CP&P files.
Current law provides that this information may not be
disclosed by the Division except as permitted by
N.J.S.A. 9:6-8.10a. A finding of Not Established is not
subject to an administrative appeal.
Pursuant to N.J.A.C. 10:129-7.3c(3), the Division
enters a finding of “Not Established” when some
evidence indicates that a child was harmed or placed at
4
The Department sent another letter, as required by N.J.A.C. 3A:10-7.8(a),
notifying S.C. that it would not be providing services to the children.
10
some risk of harm, but there is not a preponderance of
evidence that the child has been abused or neglected per
N.J.S.A. 9:6-8.21.
The Division will not be providing further services to
[the children] and your family.
S.C. was not allowed an administrative appeal opportunity and,
apparently, had no opportunity to review, supplement, or discuss the
Department’s investigatory materials before the decision issued. Thereafter,
on July 8, 2016, she filed an appeal in the Appellate Division from the agency
action finding the allegations of abuse to be “not established.”
B.
On appeal, S.C. argued that the finding of “not established” was
arbitrary, capricious, and unreasonable because the record was insufficient to
find the child was harmed and that her inability to challenge the Department’s
“investigatory finding through the administrative process” violated her due
process rights. The Appellate Division rejected both arguments and affirmed
the Department’s determination.
The Appellate Division acknowledged that the Department’s rules grant
an administrative hearing only when finding that an abuse or neglect allegation
is “substantiated” and was unpersuaded that an adjudicatory hearing had to be
provided when an investigation results in a “not established” finding. The
11
Appellate Division regarded the “not established” finding as “purely
investigatory in nature,” explaining that “[a]n investigator simply interviews
witnesses and examines other available evidence, reviews and analyzes this
information and makes a recommendation as to whether any action should be
taken against the subject of the investigation,” adding, “[t]here is no definitive
finding as to the truth of the allegations by a disinterested, impartial third
party.”
Further, because a record of a “not established” finding is not
disseminated, the court determined that the finding “does not impugn S.C.’s
reputational or privacy interests to an extent that would trigger the need for an
adjudicatory hearing.” The court reviewed how “not established” findings are
“not made public, the accused’s name is not included in the Central Registry[,]
and the finding is not disclosed in connection with a Child Abuse Record
Information (CARI) check.” (citing N.J.A.C. 3A:10-7.7). Although the
Department retains and uses records from an incident deemed “not
established,” the court did not find a protectible due process interest violated
when the “information [was] kept for the use of the agency and entities
involved in the protection of children.” The Appellate Division distinguished
this case from the facts in Department of Children & Families v. R.R., 454 N.J.
Super. 37, 43 (App. Div. 2018), and rejected dictum in that case about how “a
12
‘not established’ finding ‘is not what it seems’ and ‘still permanently tars a
parent with a finding that there was something to the allegation.’”
The Appellate Division also held that the Department’s “not established”
finding in this matter was not arbitrary, capricious, and unreasonable. The
Appellate Division pointed to the following facts: “Luke told school officials
his mother hit him with a spatula as well as with an open hand”; Luke
“repeated those allegations the following day to the [Department]
investigator”; Luke’s allegation that S.C. struck him with an open hand on his
buttocks and legs was corroborated by Luke’s father, sisters, and even S.C.;
even though Luke was classified as emotionally disturbed, “neither school
officials nor Luke’s family suggested Luke was prone to making things up”;
although Luke “had significant behavioral problems in kindergarten,” his
behavior had improved; S.C. “acknowledged she hit Luke and his sisters with
an open hand” and “admitted to slapping the spatula on her kitchen counter to
get the triplets’ attention and ‘threatening them’ but ‘not following through’”;
S.C. “admitted she found [the children’s] behavior ‘challenging at times’” and
“expressed her frustration at the ineffectiveness of timeouts and the
withholding of privileges in moderating their behavior”; and “Luke’s principal
reported that Luke claimed that once when he got hit, he said it did not hurt, so
he got hit again.” The Appellate Division concluded that “those facts provide
13
‘some evidence’ indicating that S.C. hit the children, even without a spatula,
when she was upset with their behavior, leading to the possibility that she
could misgauge how much force she was using and put them at risk of harm.”
In a concurring opinion, Judge Messano, P.J.A.D., agreed that the denial
of an administrative hearing to challenge a “not established” finding did not
violate S.C.’s due process rights but wrote separately to express two concerns.
First, Judge Messano noted that he was “only convinced there is ‘some
evidence’ to support the finding in this case because of [the court’s] extensive
review of the record.” The letter sent to S.C. “did nothing but parrot the
regulatory language and advise S.C. of the consequences of the findings”; “the
letter fail[ed] to state, even in conclusory terms, what evidence supported the
finding.”
The concurrence faulted the letter for another reason. Quoting from the
Department’s own statement when creating a four-tier system of possible
findings, having four categories was intended to “allow[] the investigative
findings and records to better reflect the circumstances of an investigation.”
(internal quotation marks omitted) (quoting 44 N.J.R. 357(a) (Feb. 21, 2012)).
According to the concurrence, here the letter reporting the Department’s
findings “hardly reflected ‘the circumstances of the investigation,’ nor did it
‘reflect the nature’ of the investigator’s’ ‘conclusions’ about S.C.’s conduct.”
14
That lack of information was pertinent, said the concurring judge,
because although due process rights are not violated, a “not established”
finding may have negative consequences in the future because the record is not
subject to expunction. A “not established” finding allows the Department to
retain the record, which in turn “allow[s] the [Department] to have a better and
more comprehensive understanding of a family should additional referrals be
received by the [Department] in the future.” Notably, the record is also
“subject to disclosure in a host of situations,” and “the records of ‘not
established’ referrals live on forever within the [Department].” (quoting 44
N.J.R. 357(a)). The concurrence stressed the need for the Department to
accurately express “findings and conclusions in sufficient detail.” According
to the concurring judge, a remand for a more specific letter explanation of the
results of the investigation was not necessary because here there was “no
required dissemination to third parties” of the Department’s finding.
We granted S.C.’s petition for certification. 237 N.J. 165 (2019).
Thereafter, we granted amicus curiae status to the American Civil Liberties
Union (ACLU), Legal Services of New Jersey (LSNJ), the Office of Parental
Representation of the Office of the Public Defender (OPR), and the New
Jersey State Bar Association (NJSBA).
15
II.
A.
1.
S.C. argues that the Appellate Division erred in affirming the
investigative finding of “not established” because there was no evidence that
the children were injured or suffered impairment. S.C.’s admission that she
occasionally spanked the children with an open hand in the past, she contends,
cannot provide evidence of harm or risk of harm. A finding that children are
placed at risk of harm from an open-handed spank “permits the [Department]
to find that any time a parent exercises their constitutional right to parent a
child and use autonomy in determining discipline, they have to be concerned
that they will be branded as a parent who places their children at risk of harm.”
She further contends that Luke’s statement that S.C. hit him with a spatula was
uncorroborated. None of the children had marks or bruises on their bodies or
reported experiencing any lasting pain. Therefore, she asserts that the
Department’s finding that the children were placed at harm or risk of harm was
arbitrary and capricious.
As she argued below, S.C. also contends that her due process rights were
violated when the Department entered an administrative finding of “not
established” with no opportunity to challenge the evidence that was relied
16
upon. S.C. argues that the Department “impugns a parent permanently with a
finding that they have harmed or placed their child at risk of harm,” which
should trigger a due process right to a hearing. She emphasizes that records of
a “not established” finding are retained by the Department and argues that it
may be used against her in several other settings, including as an aggravating
factor to demonstrate a pattern of abuse or neglect if ever there were a later
investigation of the family.
Finally, S.C. argues that the Department’s letter itself failed due process
requirements. It failed to provide any meaningful explanation of the evidence
relied upon by the Department when making its finding. The lack of factual
findings also inhibits judicial review to which she is entitled as of right.
2.
The Department argues that the creation of an investigatory finding
category of “not established” is consistent with its broad statutory authority
and responsibility under Title Nine. The Department points to its obligation to
investigate every incident and prepare a report on its findings. The “not
established” finding enables investigators “to accurately reflect the nature of
their conclusions” even when it finds no statutory abuse, but finds harm caused
to the child. It maintains that “retention of Department records where some
evidence indicates a child has been harmed or placed at risk of harm” is
17
important to the fulfillment of its mission. The “not established” finding and
the record retained as a result of that finding assist the Department in the
performance of its investigatory task by recording the concern raised by the
investigation and, thus, allowing the Department to better assess future alleged
incidents.
The Department disagrees that the records may be released in many
circumstances. It asserts that “investigations are confidential and may only be
disclosed for limited purposes specified by statute,” which the Department
reviewed and explained. Moreover, it contends that the rules of evidence
further limit the ability of a “not established” finding to be admitted or given
weight in any subsequent action without opportunity to be heard at that time.
The Department disputes that under a due process analysis S.C. is
entitled to an administrative hearing for the “not established” finding. It notes
that the Appellate Division has never required an administrative hearing for
other such investigatory findings. The Department emphasizes that “no
conclusion has been drawn that S.C. did anything harmful to her children, the
information at issue has not been publicly disseminated, and she has been
given the opportunity to explain her position in the course of the
[Department’s] investigation.” The Department adds that its “not established”
18
finding is ill suited to resolution in a disputed trial-type hearing because it is
not based on adjudicated facts.
Finally, the Department argues that were a trial-type hearing to be
required for every “not established” finding, the number of proceedings to be
transmitted to the Office of Administrative Law would be overwhelming. Out
of 87,574 investigations, 62,514 resulted in “not established” findings. The
Department claims the State’s interest in not having over 60,000 new
administrative hearings is significant.
B.
The amici support S.C. on the outcome in this matter. They add to her
arguments in favor of reversing the Appellate Division’s affirmance of the
Department’s action.
1.
The ACLU contends that a person enjoys a right to due process
protection of reputation without having to show tangible loss. It asserts that
because a “not established” finding may be disclosed to government agencies,
individuals, employers, as well as others during a background check, such a
finding implicates a person’s reputation and, thus, her liberty interests. The
Department may also use the finding as evidence in subsequent investigations
involving the family. Thus, the ACLU notes that although people have a right
19
to appeal agency decisions to the Appellate Division, the resulting decision is
subject to the factual and credibility determinations of the agency, which a
person has no ability to refute. Regarding the present matter, the ACLU
asserts that it is unclear which, if any, of Luke’s claims the Department found
credible and that an administrative hearing would clarify the basis for the
Department’s finding.
2.
OPR agrees with S.C. that a “not established” finding is an adjudicatory
finding that requires a hearing. OPR adds that “not established” findings are
maintained in the child abuse registry records in perpetuity and may be
disclosed or relied upon in a variety of circumstances and, therefore, require
due process protection. Because of the reputational interest at stake in this
case, OPR contends that an administrative hearing is required.
3.
NJSBA’s position is that the standard for “not established” findings is
“amorphous,” leads to arbitrary and capricious results, and should be
eliminated as a possible outcome to a Department investigation.
It argues that it is not clear what burden of proof a “not established”
finding requires, other than that it is less than a preponderance of the evidence.
Thus, “there is no objective or measurable standard to differentiate between
20
findings of ‘not established,’ and findings of ‘unfounded.’” NJSBA also
asserts that a “not established” finding, based on a mere investigation, may
interfere with parental rights and tarnish a parent’s reputation in many
potential settings, including, for example, in custody litigation where
Department findings may be improperly used “as a sword” to affect a spouse’s
parental rights.
4.
LSNJ argues that, in addition to the statutory means for disclosing “not
established” findings, other disclosures are possible, and, therefore, the subject
of an investigation resulting in such a finding must receive due process
protections. LSNJ further argues that state statutes, legislative and regulatory
history, prior litigation, and federal law “combine to invalidate the current
regulatory” framework that uses a four-tier scheme and “compel a binary
system” of possible investigatory conclusions.
III.
A.
Declaring the safety of children to be of paramount concern, the
Legislature enacted an extensive set of laws designed to protect children under
the age of eighteen from “serious injury inflicted upon them by other than
accidental means.” N.J.S.A. 9:6-8.8(a). Codified as Title Nine, the legislation
21
imposes on the Department the broad responsibility to investigate allegations
of child abuse and neglect and to take immediate action as “necessary to insure
the safety of the child.” N.J.S.A. 9:6-8.11.
Complementing regulations govern the Department’s investigations into
allegations of abuse and neglect. See N.J.A.C. 3A:10-1.1 to -8.5. The
regulations detail how the Department will conduct its evaluative investigatory
task. Whenever the Department receives an allegation, complaint, or report of
child abuse or neglect, it must investigate and determine within a set
timeframe “whether abuse or neglect has occurred.” N.J.A.C. 3A:10-7.3(a) to
(b). Pertinent to this appeal, N.J.A.C. 3A:10-7.3(c) requires the Department to
render one of four possible findings at the conclusion of each investigation .
For each allegation, the Department representative
shall make a finding that an allegation is
“substantiated,” “established,” “not established,” or
“unfounded.”
1. An allegation shall be “substantiated” if the
preponderance of the evidence indicates that a child is
an “abused or neglected child” as defined in N.J.S.A.
9:6-8.21 and either the investigation indicates the
existence of any of the circumstances in N.J.A.C.
3A:10-7.4 or substantiation is warranted based on
consideration of the aggravating and mitigating factors
listed in N.J.A.C. 3A:10-7.5.
2. An allegation shall be “established” if the
preponderance of the evidence indicates that a child is
22
an “abused or neglected child” as defined in N.J.S.A.
9:6-8.21, but the act or acts committed or omitted do
not warrant a finding of “substantiated” as defined in
(c)1 above.
3. 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 N.J.S.A. 9:6-
8.21, but evidence indicates that the child was harmed
or was placed at risk of harm.
4. An allegation shall be “unfounded” if there is not a
preponderance of the evidence indicating that a child is
an abused or neglected child as defined in N.J.S.A. 9:6-
8.21, and the evidence indicates that a child was not
harmed or placed at risk of harm.
[N.J.A.C. 3A:10-7.3(c).]
That differentiation creates two general classes of findings, which break
down on the basis of whether a finding that a child is an “abused or neglected
child,” under the statutory definition of that term,5 can be made based on a
5
The definition of an abused or neglected child in pertinent part includes
a child . . . whose parent or guardian . . . (1) inflicts or
allows to be inflicted upon such child physical injury
by other than accidental means which causes or creates
a substantial risk of death, or serious or protracted
disfigurement . . . ; (2) creates or allows to be created a
substantial or ongoing risk of physical injury to such
child by other than accidental means . . . (4) or a child
whose physical, mental, or emotional condition has
been impaired or is in imminent danger of becoming
impaired as the result of the failure of his parent or
23
preponderance of the evidence. That basic schematic design is captured in the
regulation itself:
(d) A finding of either established or substantiated shall
constitute a determination by the Department that a
child is an abused or neglected child pursuant to
N.J.S.A. 9:6–8.21. A finding of either not established
or unfounded shall constitute a determination by the
Department that a child is not an abused or neglected
child pursuant to N.J.S.A. 9:6–8.21.
[N.J.A.C. 3A:10-7.3(d).]
The regulations further provide that a finding that a report, complaint, or
allegation of an incident of child abuse or neglect is “unfounded” is subject to
expunction, as dictated by N.J.SA. 9:6-8.40a(a). See N.J.A.C. 3A:10-7.7(b).
The Department has defined what “unfounded” means in the context of an
investigation and has established a process for determining when such report,
complaint, or allegation is deemed “unfounded,” again as it was required to do
under N.J.S.A. 9:6-8.40a(b). The administrative regulations codified at
N.J.A.C. 3A:10-8.1 to -8.4 lay out the standards and procedure for expunction
guardian, . . . by unreasonably inflicting or allowing to
be inflicted harm, or substantial risk thereof, including
the infliction of excessive corporal punishment; or by
any other acts of a similarly serious nature requiring the
aid of the court.
[N.J.S.A. 9:6-8.21(c).]
24
of records. Notably, a record containing a “substantiated,” “established,” or
“not established” finding is required to be retained, as specified in N.J.A.C.
3A:10-8.1(b).
Those are the basic provisions of the statutory and administrative
scheme in which the present appeal arises.
B.
In order to fully appreciate the parties’ positions on the due process
challenge raised in this matter, it is helpful to know a little about the
regulatory background to the current “not established” finding that is possible
under the present four-tier system of potential investigatory findings.
Briefly, we note that, although Department regulations providing for
categories of findings in child abuse investigations have changed over time,
immediately prior to 2013, Department investigations could result in one of
two findings: “substantiated” or “unfounded.” See 45 N.J.R. 738(a) (Apr. 1,
2013); 44 N.J.R. 357(a). The current four-category system took effect in 2013
following robust public input through rule comment and adoption proceedings,
as the Department and others have set forth in their briefing.6 The Department
6
See 45 N.J.R. 738(a); 44 N.J.R. 2437(a) (Nov. 5, 2012). Some commenters
urged return to a framework similar to the three-category system, which
between 1995 and 2005 had included the additional category of
“unsubstantiated”; some others strenuously argued for retaining the two -
25
asserted that adopting the present four categories of investigatory findings
would “assist in fulfilling [its] commitment” to “protecting children from
harm,” while clearly differentiating “between what is abuse and neglect and
what is not abuse and neglect.” See 45 N.J.R. 738(a), responses to comments
46, 47, 48, 81, and 82. In the regulatory record for the current regulations, the
Department explained that its new scheme avoided shortcomings perceived in
a former “not substantiated” category eliminated in 2005.
An inherent failing of the three tier findings structure
utilized by the Department . . . was that the “not
substantiated” finding provided a means by which a
determination of the occurrence of abuse or neglect’s
occurrence could be avoided. . . . Findings of
“substantiated” and “established” require that a
preponderance of evidence supports a finding that
abuse or neglect did occur; findings of “not
established” and “unfounded” require determination
that there is insufficient or no evidence that abuse or
neglect occurred. This is consistent with the
Department’s prior rationale for the elimination of the
“not substantiated” finding.
[Id. at response to comment 77.]
finding framework. See 45 N.J.R. 738(a), comments 9, 27, 45, 46, 47, 48, 49,
77, 81, and 82.
S.C. acknowledges that she did not advance a facial challenge to the
regulatory category of “not established” applied in her investigation, unlike
some amici who now argue that the category is invalid and should be
eliminated. We will not be addressing that issue, which appellant has not
raised. That said, we include reference to the Department’s explanation of the
purpose of the “not established” finding in the four-category system it adopted.
26
Further, the Department explained its intent in differentiating between
“not established” and “unfounded” when responding to, and rejecting, a
comment that “not established” findings should be eligible for expunction
under N.J.A.C. 10:129-7.7(b), presently codified at N.J.A.C. 3A:10-8.1.
The critical distinction between findings of not
established and unfounded is that not established
findings are based on some evidence, though not
necessarily a preponderance of evidence, that a child
was harmed or placed at risk of harm. Because the
investigation of future allegations must include
consideration of past incidents in which an involved
child was harmed or placed at risk of harm, the critical
information contained in records of not established
cases must be maintained.
[Id. at response to comment 86. 7]
7
According to the Department in its argument to this Court, its choice to
retain and, for child protection purposes, use records from investigations
resulting in “not established” findings is permissible under federal law, citing
the Child Abuse Prevention and Treatment Act (CAPTA). CAPTA requires a
state child protective services system that receives federal monies under 42
U.S.C. § 5106a(a) to include procedures to
facilitate the prompt expungement of any records that
are accessible to the general public or are used for
purposes of employment or other background checks in
cases determined to be unsubstantiated or false, except
that nothing in this section shall prevent State child
protective services agencies from keeping information
on unsubstantiated reports in their casework files to
assist in future risk and safety assessment.
[42 U.S.C. § 5106a(b)(2)(B)(xii).]
27
C.
For records the Department retains, confidentiality is the presumptive
starting point, but the same provision of Title Nine also provides for the
release of information regarding reports of child abuse in certain
circumstances. N.J.S.A. 9:6-8.10a(a) provides in pertinent part:
All records of child abuse reports made pursuant to
[N.J.S.A. 9:6-8.10], all information obtained by the
Department of Children and Families in investigating
such reports including reports received pursuant to
[N.J.S.A. 9:6-8.40], and all reports of findings
forwarded to the child abuse registry pursuant to
[N.J.S.A. 9:6-8.11] shall be kept confidential and may
be disclosed only under the circumstances expressly
authorized under subsections b., c., d., e., f., and g.
herein. The department shall disclose information only
as authorized under subsections b., c., d., e., f., and g.
of this section that is relevant to the purpose for which
See also Children’s Bureau, U.S. Dep’t of Health & Human Servs. (DHHS),
Disclosure of Confidential Child Abuse and Neglect Records (June 2017),
https://www.childwelfare.gov/pubPDFs/confide.pdf. That 2017 Report,
published through DHHS’s website, states,
[s]tate child protective services agencies are required to
maintain records of the reports of suspected child abuse
and neglect that they receive. These reports include
identifying information about the child, the child’s
family, conditions in the child’s home environment, the
nature and extent of the child’s injuries, and
information about other children in the same
environment
[Id. at 1 (emphasis added).]
28
the information is required, provided, however, that
nothing may be disclosed which would likely endanger
the life, safety, or physical or emotional well-being of
a child or the life or safety of any other person or which
may compromise the integrity of a department
investigation or a civil or criminal investigation or
judicial proceeding.
[N.J.S.A. 9:6-8.10a(a).]
Further details in Department regulations specify that in a CARI check,
only “substantiated” findings are released. N.J.A.C. 3A:10-7.7(a).
“Unfounded” findings are expunged, generally within three years, see N.J.A.C.
3A:10-8.2; and, as noted, the Department retains the findings and record for
investigations leading to any other conclusion, N.J.A.C. 3A:10-8.1(b), subject
to the statutory direction that it be “kept confidential and may be disclosed
only [as authorized] under” the statutory enumerated circumstances, N.J.S.A.
9:6-8.10a(a). The list is extensive, twenty-two in number, but in this matter
the Department categorized the types of exceptions or allowed disclosure as
follows:
• Seven of the disclosures address a government agency’s need to
access the information urgently. N.J.S.A. 9:6-8.10a(b)(1), (b)(2),
(b)(3), (b)(4), (b)(7), (b)(15), and (b)(20).
• Two exceptions concern the release of information to a court or
other tribunal, wherein the fact finder reviews the information in
camera to determine its admissibility in a proceeding. N.J.S.A.
9:6-8.10a(b)(6) and (b)(14).
29
• Two exceptions concern CARI checks and the release of
information to day care organizations and other entities required
by statute to consider child abuse investigations. N.J.S.A. 9:6-
8.10a(b)(10) and (b)(13). Those two exceptions apply only when a
finding of abuse or neglect is “substantiated.”
• Three exceptions concern the release of information to parents
themselves, or their legal counsel, during a discussion with the
Department about the investigation or during an appeal of the
Department’s actions. N.J.S.A. 9:6-8.10a(b)(12), (b)(17), and
(b)(19). Under N.J.S.A. 9:6-8.10a(b)(19), the Department can
discuss with a parent the reasons for its involvement with the
family.
• Three exceptions concern the Department’s ability to release
information to service providers or proposed caretakers that need
to know details about a child’s history. N.J.S.A. 9:6-8.10a(b)(5),
(b)(11), (b)(16), and (b)(23).
• Three exceptions concern the release of information to government
agencies that study child protection issues and make policy
recommendations. N.J.S.A. 9:6-8.10a(b)(8), (b)(21), and (b)(22).
In such contexts, identifying information is concealed.
• One exception allows release of information about the disposition
of the investigation to the person that made the referral. N.J.S.A.
9:6-8.10a(b)(18).
In addition to the enumerated exceptions in N.J.S.A. 9:6-8.10a, a “not
established” finding also may be considered by the Department in its child
protection and welfare work. For example, it may be considered in the
analysis of a person’s suitability for providing “kinship care.” N.J.A.C.
3A:51-2.1(e); see also N.J.A.C. 3A:10-7.5(a)(6) (factors to be considered when
determining a finding of “substantiated” or “established” include “[e]vidence
30
suggesting a repetition or pattern of abuse or neglect,” thus allowing use of
information from a “not established” finding). According to the Department
when promulgating its current regulations, a “not established” finding is not
used by the Department as an aggravating factor for a subsequent finding of
“substantiated” child abuse or neglect. 45 N.J.R. 738(a) (response to comment
31); see N.J.A.C. 3A:10-7.4(a) (listing required findings for “substantiated”).
IV.
A.
The Fourteenth Amendment of the United States Constitution ensures
that “no State shall ‘deprive any person of life, liberty, or property without due
process of law.’” Jamgochian v. State Parole Bd., 196 N.J. 222, 239 (2008)
(quoting U.S. Const. amend. XIV, § 1). The New Jersey Constitution does not
use the same language, but Article I, Paragraph 1’s language -- providing that
every person possesses the “unalienable rights” to enjoy life, liberty, and
property, and to pursue happiness -- is construed as a “fundamental guarantee
of due process.” Ibid.; Lewis v. Harris, 188 N.J. 415, 442 (2006)).
Due process rights are implicated “whenever an individual risks
governmental exposure to a ‘grievous loss.’” State in Interest of D.G.W., 70
N.J. 488, 501 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)
(quoting, in turn, Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.
31123, 168 (1951) (Frankfurter, J., concurring))). Such an analysis requires first
a determination that due process applies and then what process is due. Ibid.(citing Morrissey, 408 U.S. at 481; Avant v. Clifford, 67 N.J. 496, 518-22
(1975)). It long ago became a recognized truism to declare that due process is
flexible. See Morrissey, 408 U.S. at 481. But,
[t]o say that the concept of due process is flexible does
not mean that judges are at large to apply it to any and
all relationships. Its flexibility is in its scope once it
has been determined that some process is due; it is a
recognition that not all situations calling for procedural
safeguards call for the same kind of procedure.
[Ibid.]
When determining the protections due process demands in a given
situation, there must occur an identification and then balancing of the “nature
of the government function involved as well as . . . the private interest . . .
affected by governmental action.” D.G.W., 70 N.J. at 502 (first ellipsis in
original) (quoting Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886,
895 (1961)). We apply the balancing test from Mathews v. Eldridge, 424 U.S.
319 (1976), to do that. Jamgochian, 196 N.J. at 240. That test examines,
[f]irst, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
32
and administrative burdens that the additional or
substitute procedural requirement would entail.
[Ibid. (quoting Mathews, 424 U.S. at 335).]
Mathews recognizes that an evidentiary hearing “is neither a required, nor
even the most effective, method of decisionmaking in all circumstances,” so
long as the person whose rights are affected is given an opportunity to assert
his or her claim prior to any administrative action. 424 U.S. at 348-49. Thus,
minimally, notice and opportunity to be heard are the essentials of due process.
B.
S.C. claims a violation of her due process rights because she was not
afforded an adjudicatory hearing on the “not established” determination from
her investigation. And she claims that the letter notifying her of the
Department’s findings separately failed due process considerations. We
examine first the precise interest asserted.
1.
S.C. underwent a Department investigation based on an alleged claim
that she engaged in child abuse. An investigation is distinct from an
adjudication of facts and gives rise to a different set of expectations. That is a
distinction well recognized as a general concept, see Hannah v. Larche, 363
U.S. 420, 440-41 (1960), and in the specific context of a Department
investigation.
33
In Hannah, the Supreme Court held that the requirements of due process
are different for adjudications of facts versus an investigation. As the United
States Supreme Court explained,
when governmental agencies adjudicate or make
binding determinations which directly affect the legal
rights of individuals, it is imperative that those agencies
use the procedures which have traditionally been
associated with the judicial process. On the other hand,
when governmental action does not partake of an
adjudication, as for example, when a general fact-
finding investigation is being conducted, it is not
necessary that the full panoply of judicial procedures
be used.
[Id. at 442.]
See also Jenkins v. McKeithen, 395 U.S. 411, 427 (1969) (reaffirming
Hannah’s distinction between adjudicatory and investigative action by a public
entity).
With respect to the context of the present matter, in New Jersey, courts
have recognized a finding by the Department of “not established” -- like the
earlier finding of “unsubstantiated” -- to be an investigatory action and not an
adjudication.
Twenty years ago, in In re R.P., the Appellate Division held that “[a]
finding by [the Department] that child abuse charges have not been
substantiated, but that there is some indication a child was harmed or placed at
34
risk of harm, is purely investigatory in nature.” 333 N.J. Super. 105, 117
(App. Div. 2000). The R.P. court explained that “there has been no
determination of the accuracy” of the findings, ibid., rather, the investigation
consists of interviews and “other available evidence” followed by a review and
analysis of the information, id. at 116-17. The investigator concludes with a
“recommendation as to whether any action should be taken against the subject
of the investigation.” Ibid. The issue in R.P. concerned the transmittal of a
finding of “unsubstantiated” to an educational entity, and in that context, the
court required the Department to correct its practice, cautioning that “parties to
whom the finding is disseminated” should be informed that there has “not been
any adjudication of those allegations.” Ibid.The Department’s role as the statutory investigator of allegations of
child abuse and neglect cannot be disputed and has been acknowledged in a
variety of settings. See, e.g., G.S. v. DYFS, 157 N.J. 161, 169-70 (1999)
(referring to DYFS’s “investigative responsibilities”); In re A.I., 393 N.J.
Super. 114, 119, 123 (App. Div. 2007) (analyzing “the issuance of letters
embodying findings by the Institutional Abuse Investigation Unit of the
Department of Human Services”); In re L.R., 321 N.J. Super. 444, 452 (App.
Div. 1999) (“DYFS has been granted broad authority to investigate child abuse
allegations, including specific authority to investigate any child abuse
35
allegation against a public school teacher and to report its findings to the
teacher’s employer.” (emphases added) (citing N.J.S.A. 18A:6-7a)).
More recently, the Appellate Division specifically recognized a
Department finding that a report of child abuse was “not established” to be
merely an investigatory determination when analyzing a due process argument.
In Department of Children & Families v. D.B., two teachers were
accused of harming two different students. 443 N.J. Super. 431, 433-34 (App.
Div. 2015). Subsequent investigations led the Institutional Abuse
Investigation Unit (IAIU) of the Department to enter “not established”
findings. Id. at 434. The teachers each received a letter memorializing those
findings. Ibid. The teachers subsequently sought “to have the Department’s
findings letter changed from ‘not established’ to ‘unfounded.’” Ibid. The
teachers also contended that the Department’s finding that the child in each
case “‘was harmed or placed at risk of harm’ constitute[d] an adjudication an d
not a mere investigatory finding,” such that the appellants were entitled to an
adjudicatory hearing. Id. at 440.
In a consolidated opinion, the Appellate Division affirmed the “not
established” finding and rejected the argument that an adjudicatory hearing
was required for that investigatory finding, but reversed and remanded for the
Department to issue new letters that revealed more information about the
36
investigation. Id. at 434, 446-47. The Appellate Division held that the
“notification-of-findings process” itself did not constitute a violation of due
process and further held that the teachers were not entitled to an adjudicatory
hearing to challenge the “not established” finding because such finding is
purely investigatory. Id. at 443-44 (relying on Dep’t of Children & Families v.
S.P., 402 N.J. Super. 255, 270 (App. Div. 2008) (holding that a teacher was
“not entitled to an adjudicatory hearing to challenge a finding that child abuse
allegations are not substantiated”)).8
2.
In the appeal before us, the Appellate Division rightly viewed S.C.’s
claimed right to an adjudicatory hearing through the prism of the Department’s
“investigatory finding.” The Department’s use of the word “finding” cannot
be allowed to obscure what the classification of “not established” actually
signifies here: the Department has not adjudicated facts or reached any sort of
conclusion about what actually occurred when it applies a “not established”
finding; rather, it merely ascribes what functions as a working label to the
8
The Appellate Division reached a different conclusion with respect to an
investigation that resulted in an “established” finding of the reported child
abuse. See DCPP v. V.E., 448 N.J. Super. 374, 402 (App. Div. 2017) (holding
that the Department’s finding that reported child abuse meeting that statutory
definition of the term had been “established” by a preponderance of the
evidence constituted a conclusion that child abuse occurred, entitling the
person against whom the finding is made to an administrative hearing).
37
evidence collected through investigation. That distinction substantially lessens
any private interest impact that S.C. can claim.
And, when investigatory findings of “not established” (leaving aside for
the moment the standard for that designation), as opposed to “unfounded”
(which results when no evidence of harm or risk of harm to a child is found in
an investigation), are retained and used by the Department in furtherance of its
future child protection and welfare activities in connection with the individual
investigated, it is difficult in this context to see an impacted private interest of
any appreciable weight.
But assuming there is a private interest in that intra-agency retention and
use of its investigatory work product -- based on S.C.’s assertion of a liberty
interest in reputation for which she argues she need not show any tangible loss
-- the claimed private interest is far outweighed by the Department’s legitimate
reasons for acting knowledgeably in future investigations with respect to its
prior interactions with an individual, suspected of child abuse or neglect,
whose investigation did not conclude with an “unfounded” finding. We see no
basis to support S.C.’s insistence on an adjudicatory, trial-type hearing in order
for the Department to retain and internally use its own investigatory work
product when called on to investigate the individual or family again in the
future. Due process does not require an adjudicatory proceeding under such
38
circumstances. These are only investigatory findings. We will not require an
adjudicatory hearing, to convert them into adjudicative facts, in order for the
Department to use them in their future child protective work involving the
subject of the investigation.
S.C.’s interest in the investigatory finding warrants separate
consideration when that finding is made available in connection with the
exceptions and disclosures enumerated in N.J.S.A. 9:6-8.10a, however. With
respect to those, we also assess the governmental action against which the
claimed private interest must be balanced.
The Department rightly counters that the information collected in
connection with the investigation is, by statute, kept confidential and disclosed
under limited circumstances, and further that action cannot be taken on the
information without additional process. Indeed, several of the disclosures
relate to the family or its legal representative, N.J.S.A. 9:6-8.10a(b)(12),
(b)(17), and (b)(19), or to service providers or caretakers who will be working
with the child or family and need the information, N.J.S.A. 9:6-8.10a(b)(5),
(b)(11), (b)(16), and (b)(23). We fail to perceive any private protectible due
process interest concerning the investigatory findings in those settings.
Nor is there a private due process interest that outweighs the importance
of the governmental need in the instances where the Legislature has decreed
39
that other governmental agencies have an urgent need for Department
investigatory records and findings other than those that are deemed
“unfounded.” N.J.S.A. 9:6-8.10a(b)(1), (b)(2), (b)(3), (b)(4), (b)(7), (b)(15),
and (b)(20). The balancing of interests favors the sharing of the mere
investigatory finding, notwithstanding the claim of reputational harm, with out
imposing the pre-condition of an adjudicatory hearing before such information
may pass from the Department to the other governmental entities. In so
holding, it again must be noted that the “not established” finding does not
reach any conclusion that child abuse occurred, unlike an “established”
finding.
To the extent that two exceptions involve the release of information to a
court or other tribunal, N.J.S.A. 9:6-8.10a(b)(6) and (b)(14), the fact finder in
those settings will review the information in camera to determine its
admissibility. That process provides the subject adequate opportunity to be
heard on the threshold issue of admissibility and thereafter to cross-examine
and offer contrary proofs, see, e.g., L.A. v. Bd. of Educ. of Trenton, 221 N.J.
192, 204-05 (2015), obviating any present due process requirement for an
adjudicatory hearing.
Finally, to the extent that two other exceptions concern CARI checks
and the release of information to day care organizations and other entities
40
required by statute to consider child abuse investigations, N.J.S.A. 9:6 -
8.10a(b)(10) and (b)(13), the Department represents that those exceptions are
implemented in concert with N.J.A.C. 3A:10-7.7(a), which directs the
Department to “disclose only substantiated” findings in response to CARI
checks and thus cabins similarly all these related information release requests.
We take the Department at its word and regard these two exceptions to
confidentiality as carrying the caveat that they apply when a finding of abuse
or neglect is “substantiated.”
3.
Upon consideration, we reject the argument that the above-reviewed
statutory scheme, which permits potential release or disclosure of “not
established” findings in the enumerated settings, raises a due process concern
that can only be met by requiring a right to a full adjudicatory hearing. S.C.
expressly asks for, essentially, a contested case proceeding to be transmitted
and heard before the Office of Administrative Law, along the lines of what is
provided for “substantiated” findings.
“Substantiated” findings in child abuse and neglect investigations that
are subject to claims of disputed material facts receive such formal judicialized
treatment. See N.J.A.C. 3A:5-4.3(a)(2). But no such right is afforded to “not
established” findings by statute or regulation. We conclude due process does
41
not compel imposition of a formalized adversarial trial-type process in the
setting of a “not established” finding -- where no child abuse conclusion has
been reached. It is the result of an investigation, and the record and finding
from that investigation are kept by the Department and used only as set forth
by statute. Although the amici posit anecdotal settings where “not
established” findings may also be made available, we consider here only the
extant statutory uses facing S.C. as a result of a “not established” finding, and
we do not address speculative settings that are not presented in this record.
C.
Having rejected the obligation to provide an adjudicatory hearing when
rendering an investigatory finding that an allegation of child abuse or neglect
is “not established,” we consider further S.C.’s reputational concern.
To the extent that S.C. claims a reputational interest deserving of the
basics of due process protection and simple fundamental fairness, concepts to
be recognized and preserved, see Doe v. Poritz, 142 N.J. 1, 104-05, 108-09
(1995), that interest can be properly respected without the requirement of a
full-fledged adjudicatory hearing. S.C.’s reputational interest, as well as the
interests of the Department in satisfying its child protection mission now and
into the future in an effective manner, are recognized, respected, and balanced
through (1) meaningful notice of the Department’s planned investigatory
42
conclusion of a “not established” finding and (2) affording the investigated
subject an informal opportunity to be heard by the agency before the
investigatory finding is finalized.
Procedural flexibility is a hallmark of due process, as well as
administrative law. Adherence to formal trial procedures is not the default
process. The essential elements of notice and opportunity to be heard are what
due process protects.
In keeping with those essentials, when the Department is concluding an
investigation into suspected child abuse or neglect and expects to issue a
finding of “not established,” notice -- meaningful for due process
considerations -- of that investigatory finding should be provided to the
individual. The notice should include a summary of the support for the
finding, and the Department’s reasoning should be transparently disclosed. No
doubt, confidentiality concerns and the need to protect the child from potential
future risk of harm must also be respected. Moreover, the individual must be
informed of his or her opportunity to rebut the Department’s conclusion or
supplement the record so that the informal opportunity to be heard before the
agency is not illusory.9 The current process of not making a record available
9
The Department’s citation to us of N.J.S.A. 9:6-8.10a(b)(19) does not satisfy
the Department’s responsibility in this regard. The regulation provides no
assurance that a parent or guardian is informed of an informal opportunity to
43
unless and until an appeal is filed is no substitute for the basic notice and
opportunity to be heard considerations that we recognize here.
As we have been informed about the current process through this appeal,
meaningful notice and an informal opportunity to be heard on the agency’s
investigatory finding did not occur. The conclusory letter that the Department
sent to S.C. failed to inform her of the basis for the Department’s “not
established” finding. And there does not appear to be an adequate means of
formally making known to a parent or guardian under investigation the
opportunity to be heard informally and rebut or supplement the record.
Corrective action by the Department in the future can solve that.
With respect to the Department’s standard for making a finding of “not
established,” we agree with the criticism that the standard for that finding, as
written now, is vague, amorphous, and incapable of any objective calibration.
All we know is that it requires less than a preponderance of the evidence and
involves “some” evidence. At the very least, the “some evidence” description
advanced by the Department must be understood to be “credible evidence.”
Beyond that one cannot know what the Department intends by its standard and
how it is to be evaluated.
be heard by the Department on a proposed “not established” finding and rebut
or supplement the record before the Department finalizes its conclusion.
44
We leave to the Department the responsibility to reexamine and clarify
its standard. No facial challenge is presented in this matter and we will not
reach the issue without that. 10
10
Our dissenting colleague concludes that the evidence in this matter should
compel a finding of “unfounded.” He could have ended his dissent there but
instead flouts conventional principles of appellate jurisdiction by addressing an
issue not raised by the appellant. He would declare the creation of a “not
established” category of investigatory finding to be an ultra vires act by the
Department.
S.C., who brought this appeal, first to the Appellate Division and then,
by way of petition, to this Court, conceded she did not raise the issue. The
Appellate Division decision flagged that the issue was not raised, first in the
majority opinion that identified the only two issues before that court, and then
in the concurring opinion of Judge Messano, which explicitly stated that no
facial challenge to the Department’s regulation was presented and pointedly
declined to address an unraised facial challenge to the regulatory category of a
“not established” finding.
Appellate review is not unbounded. Appellate jurisdiction must be
invoked, and the court rules require precise identification of the issues raised.
See R. 2:6-2(a)(6) (“For every point, the appellant shall include in parentheses
at the end of the point heading the place in the record where the opinion or
ruling in question is located or if the issue was not raised below a statement
indicating that the issue was not raised below.”). After certification is granted,
an appellant may not supplement the issues before this Court. See, e.g., State
v. Cabbell, 207 N.J. 311, 327 n.10 (2011) (declining to consider an argument
raised by the defendant through a supplemental brief); Hirsh v. State Bd. of
Med. Exam’rs, 128 N.J. 160, 161-62 (1992) (declining to rule on claims first
presented by appellant after the petition for certification had been granted).
The dissent asserts it is not bound by those reins of normal appellate
practice because amici referred to the issue, and because a question was posed
from the bench on the subject. Both explanations fall short. An amicus must
accept the case as presented by the parties. See State v. Lazo, 209 N.J. 9, 25
(2012); Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91 N.J.
45As for S.C., we remand for her to have the opportunity to rebut or
supplement the Department’s record, after the Department provides greater
clarity for its conclusion. The remand will allow development of a proper
record that can be reviewed on appeal for abuse of discretion.
V.
The judgment of the Appellate Division is reversed and the matter is
remanded for further action consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.
JUSTICE ALBIN filed a separate opinion, concurring in part and dissenting in
part.
38, 48-49 (1982). And, to suggest that the normal rules governing appellate
jurisdiction could be evaded by a question from the bench would endorse a
roving standard in place of the longstanding, sensible controls that have
brought order to appellate practice.
46
S.C.,
Appellant,
v.
New Jersey Department of Children and Families,
Respondent.
JUSTICE ALBIN, concurring in part and dissenting in part.
The Legislature has empowered the Department of Children and
Families (Department) to investigate child abuse allegations and determine
whether those allegations are either “substantiated” or “unfounded.” The
statutory framework requires the expungement of “unfounded” complaints.
The legislative purpose is to ensure that “unfounded” allegations do not tar the
reputations and employment prospects of innocent parents.
In an end-run around the statutory expungement requirement, the
Department exercised its rulemaking authority to create a new category called
“not established.” Under this regulatory regime, the Department does not have
to expunge “not established” child abuse complaints -- only “unfounded”
complaints. “Not established” complaints are complaints that are not sustained
by a preponderance of the evidence, yet contain “some evidence” supporting
the abuse allegation, even though that evidence may lack credibility or
1
corroboration. That definition of “not established” is the ultimate misnomer
because, in the Department’s lexicon, “not established” actually establishes a
basis for not expunging a record.
The Department’s staff workers now categorize most unproveable child
abuse complaints as “not established,” rendering the expungement remedy
illusory, as in the present case of S.C., a mother whose good name is sullied by
uncorroborated and unsustained charges of child abuse.
Undoubtedly, the Department is well intentioned in not wanting to
expunge records that it believes may be useful in the future. But the
Department must act within the purview of the law rather than overthrow a
legislative mandate. The amorphous “some evidence” standard to support “not
established” determinations does not comport with elemental due process
guarantees. Even more fundamentally, the “not established” category is at
odds with the Legislature’s enabling statute. I therefore would strike down the
regulatory category of “not established.” The Department can appeal to the
Legislature for any ameliorative amendments that it thinks are in the best
interests of the child welfare system.
I believe that the majority’s decision clearly leads to a better system of
justice by imposing due process requirements and calling for a new evidentiary
standard for “not established” findings, and I applaud that effort.
2
Nevertheless, I believe that the Department’s “not established” standard is so
fundamentally flawed that it defies even this Court’s remedial measures to
save it. I would address the defect at the heart of the regulatory scheme -- the
Department’s exercise of a power not delegated to it by the Legislature.
Addressing that issue would come as no surprise to the Department, which has
defended the legality of its regulatory scheme before the Appellate Division
and this Court. Based on the record before us, the complaint against S.C. falls
within the “unfounded” category, and therefore I would end this matter
without a remand or any further burdens or costs imposed on this innocent
mother.
I therefore respectfully concur in part and dissent in part.
I.
In May 2016, the Department began an investigation of S.C. after her
seven-year-old son Luke told a school official that his mother hits him with an
open hand and a spatula on parts of his body. No bruises or marks were
observed on Luke’s body. Luke, a triplet, is classified as an emotionally
disturbed, special needs student. He had exhibited behavioral problems in the
past in school. Although the school official “hated to call [the Department] on
this family because they [had] no other concerns,” the official indicated that
3
Luke’s “disclosure” mandated that the Department be notified. No one can
quarrel with the school’s fulfillment of its statutory duty.
The Department learned from school officials that S.C. and her husband
were attentive and caring parents, who attended child study team meetings and
were very involved in their children’s lives. School officials expressed no
concern about the family and believed that Luke was having a difficult week
when he made the allegations. A Department investigator spoke with S.C., her
husband, Luke’s two sisters, and Luke. Luke’s father and siblings told the
investigator that they never observed S.C. strike Luke with a spatula, and S.C.
denied doing so. S.C. stated that, at times, she disciplined the children with an
open hand, and her husband admitted to lightly spanking the children on
occasion. Beyond this parental discipline, the investigation uncovered nothing
that even remotely established that these parents engaged in excessive corporal
punishment. See N.J.S.A. 9:6-8.21(c)(4)(b) (stating that a child is abused or
neglected if a parent inflicts excessive corporal punishment on a child).
At the conclusion of the investigation, S.C. received a letter from the
Department stating it determined that Luke’s allegations were “not
established.” Yet, S.C. could not take heart from what she read. The letter
stated that “not established” meant that “some evidence indicates that a child
was harmed or placed at some risk of harm, but there is not a preponderance of
4
evidence that the child has been abused or neglected per N.J.S.A. 9:6-8.21.”
(emphasis added).
S.C. was advised that her family would not require the services of the
Department and that she had no right to an administrative appeal. She was
also told that the Department would retain the records of the investigation,
which could be disclosed pursuant to N.J.S.A. 9:6-8.10a.
That statute sets forth more than twenty categories for the release of
“not established” complaint records. See N.J.S.A. 9:6-8.10a(b). For example,
records may be released to authorities who are in a position to determine a
parent’s fitness to have custody of her children, provide kinship care for a
relative’s children, or offer a foster home for other children. See ibid. Release
of “not established” records to service providers may permanently impair a
parent’s reputational interest based on nothing more than a “some evidence”
finding. See N.J.S.A. 9:6-8.10a; Dep’t of Children & Families v. R.R., 454
N.J. Super. 37, 41-42 (App. Div. 2018).
That is the factual and legal landscape that brings this case before us.
II.
Whether the Department has the statutory authority to promulgate a
regulation that allows “not established” child abuse records to be maintained
and released to certain entities is an issue that was sufficiently raised and
5
argued before this Court. Its resolution would cause no surprise or unfairness
to the parties.
Admittedly, S.C. did not raise this issue in her petition, although she did
advert to this issue in her Appellate Division papers. The Department,
moreover, defended the legality of the regulatory system not only before the
Appellate Division but also before this Court, particularly in response to the
challenge by amicus curiae Legal Services of New Jersey. 1 Indeed, over the
Department’s objection, we granted amicus status to Legal Services with full
knowledge that it was raising this specific issue. 2 Nearly twenty-seven pages
of the Department’s supplement brief was dedicated to the argument that the
“not established” category was not ultra vires. It would come as no surprise to
the parties if this Court were to address an argument that it invited. We also
granted amicus status to the New Jersey State Bar Association, which argued
1
Point I of the Department’s brief to this Court is entitled: “THE
DEPARTMENT OF CHILDREN AND FAMILIES’ CREATION OF AN
INVESTIGATIVE CATEGORY OF ‘NOT ESTABLISHED’ IS
CONSISTENT WITH THE BROAD DELEGATION OF AUTHORITY SET
FORTH IN N.J.S.A. 9:6-1 ET SEQ.”
2
In its initial brief in support of its motion to participate as amicus curiae,
Legal Services presented a challenge to a deeply flawed legal framework
“involving agency regulatory and administrative actions that exceed and
conflict with statutory authority.” Legal Services concluded that brief by
stating that the “Department’s arrogation of authority in contradicting the
binary legislative framework, creating two new very problematic categories,
suggests ultra vires activity by the agency.”
6
that the “not established” category should be struck down on due process
grounds and that “[t]he standard for arriving at a ‘not established’
determination is not supported by statute.” Additionally, the legislative
authority for the regulatory scheme was explored during oral argument before
this Court.
I will therefore address the foundational issue -- whether the Department
acted within the proper ambit of its regulatory authority by creating a category
of “not established” claims.
III.
One of the paramount responsibilities of the State is to protect children
from the infliction of harm, even from their parents and guardians. To that
end, the Legislature has enacted a statutory scheme -- Title Nine -- that
provides for the investigation of child abuse and neglect accusations. N.J.S.A.
9:6-8.8 to -8.114. Under that scheme, a child who is subjected by his parents
to “physical injury by other than accidental means which causes or creates a
substantial risk of . . . protracted impairment of physical or emotional health”
is an abused or neglected child. N.J.S.A. 9:6-8.21(c)(1). For example, the
statutory scheme prohibits the “infliction of excessive corporal punishment .”
Id. at (4)(b).
7
The Legislature delegated to the Department the power to investigate all
allegations of child abuse or neglect. See N.J.S.A. 9:6-8.11. At the conclusion
of the investigation, Title Nine confers on the Department the authority to
determine whether the claim of abuse or neglect is “substantiated” or
“unfounded.”3 See N.J.S.A. 9:6-8.10a; N.J.S.A. 9:6-8.40a. Under this two-
tiered system, substantiated allegations are retained and subject to disclosure
pursuant to N.J.S.A. 9:6-8.10a and unfounded allegations are subject to
expungement pursuant to N.J.S.A. 9:6-8.40a (expungement statute). In
particular, N.J.S.A. 9:6-8.40a(a) provides that the Department “shall expunge
from its records all information relating to a report . . . of child abuse or
neglect” if the Department determines that the “allegation of the incident was
unfounded.” Before 2004, N.J.S.A. 9:6-8.40a defined “unfounded” as a
complaint that raises “no concern on the part of the [D]ivision that the safety
or welfare of the child is at risk.” N.J.S.A. 9:6-8.40a(b) (2003). In 2004, the
Legislature amended N.J.S.A. 9:6-8.40a, authorizing the Department to
promulgate rules setting forth “[t]he definition of, and process for, making a
determination of an unfounded report.” N.J.S.A. 9:6-8.40a; L. 2004, c. 130, §
32.
3
When the Department finds an allegation to be “substantiated,” the
regulations permit the parent or guardian to seek an administrative hearing.
See N.J.A.C. 3A:5-4.3.
8
In the wake of the amendment to N.J.S.A. 9:6-8.40a, the Department
adopted two categories of investigative findings -- “substantiated and
unfounded” -- and made the standard for those determinations “consistent with
the legal standard for fact finding hearings as expressed in [N.J.S.A. 9:6-
8.46],” which provides for determinations based on the preponderance of the
“competent, material and relevant evidence.” See 36 N.J.R. 4617(a) (Oct. 18,
2004); see also 37 N.J.R. 282(a) (Jan. 18, 2005).
Significantly, before 2004, the Department had a three-tiered regulatory
scheme -- “substantiated,” “not substantiated,” and “unfounded.” See 36
N.J.R. 4617(a). The new regulatory scheme eliminating the “not substantiated
category” was adopted, in part, in response to complaints that the
Department’s investigators “tended to classify their findings in [that] category”
to avoid expunging records, and that the evidentiary standard for “not
substantiated” determinations was deficient. See ibid.
Under the new regulation, an allegation of abuse or neglect not
supported by a preponderance of the credible evidence in the record was
deemed “unfounded” and therefore subject to expungement. See 37 N.J.R.
282(a). The two-tiered system, in the words of the Department, would “result
in more definitive decisions about children’s safety and clarify outcomes for
families and child welfare professionals.” See 36 N.J.R. 4617(a). The two-
9
tiered system fully complied with the structure of Title Nine and the
expungement statute, N.J.S.A. 9:6-8.40a.
In 2011, the Governor vetoed a bill that would have brought back the
“not substantiated” determination. See A. 4109 (2011)/S. 1570 (2010). Under
the rejected legislation, a “not substantiated” determination would be satisfied
when “the available information . . . provides some indication of a finding that
a child has been harmed or placed at substantial risk of harm by a parent or
guardian.” See ibid. The legislation would not have provided for
expungement of records related to a “not substantiated” determination. See
ibid.
From 2004 to 2012, the Department conducted abuse and neglect
investigations, making one of two possible determinations, consistent with its
statutory mandate: “substantiated” or “unfounded.” See N.J.S.A. 9:6-8.10a;
N.J.S.A. 9:6-8.40a; 45 N.J.R. 738(a) (Apr. 1, 2013); 36 N.J.R. 4617(a). For
the year 2012, the Department reported 9148 “substantiated” determinations
and 79,558 “unfounded” determinations that required expungement of
records.4
4
The 2012 data referenced here and later in this opinion can be found at
Division of Child Protection & Permanency, Child Abuse and Neglect Reports
and Substantiations (2012), https://www.nj.gov/dcf/childdata/referrals/2012-
AnnualAbuseNeglectReport.pdf, by subtracting the institutional numbers from
the total numbers.
10
In 2013, apparently in reaction to the high number of records being
expunged under the two-tier system, the Department used its rulemaking
authority to create a four-tier system -- “substantiated,” “established,” “not
established,” and “unfounded” -- for resolving abuse and neglect complaints.
See N.J.A.C. 3A:10-7.3. Of the four categories, only “unfounded” allegations
are subject to expungement. N.J.A.C. 3A:10-7.7(b). An allegation is
“‘unfounded’ if there is not a preponderance of the evidence indicating that a
child is an abused or neglected child . . . , and the evidence indicates that a
child was not harmed or placed at risk of harm.” N.J.A.C. 3A:10-7.3(c)(4). In
contrast, an allegation is “‘not established’ if there is not a preponderance of
the evidence that a child is an abused or neglected child . . . , but evidence
indicates that the child was harmed or was placed at risk of harm.” N.J.A.C.
3A:10-7.3(c)(3) (emphasis added). The Department takes the position that the
“evidence” referred to in the “not established” category is merely “some
evidence.” 45 N.J.R. 738(a).
In its brief to this Court, the Department explained that in determining
whether there is “‘some evidence’ of harm or risk of harm” under N.J.A.C.
3A:10-7.3(c)(3), “[t]he credibility and veracity of the statements are not at
issue -- only their existence.” Under that elastic definition, almost all abuse
allegations on their face would fit within the “some evidence” standard, with
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certain illustrative exceptions, as noted by the Department at oral argument.
The “some evidence” test would not be met, according to the Department,
when a child states that a parent “brought a Martian in to beat me up” or when
a video shows that a parent was in another state at the time of the alleged
abuse. Under that approach, almost any baseless allegation of abuse and
neglect could fall within that standardless definition for “not established,” thus
justifying the non-expungement of records. There is very little difference
between the “not established” category adopted by regulation by the
Department and the “not substantiated” category passed by the Legislature but
vetoed by the Governor.
In 2017, just three years after adopting the “not established”
determination, that category accounted for over seventy percent (70%) of all
determinations. Out of 87,574 allegations, the Department reported 62,514
“not established” determinations. In 2012, based on “unfounded”
determinations, the Department expunged records relating to approximately
ninety percent (90%) of abuse and neglect allegations. In 2017, with the new
“not established” category, the Department expunged records relating to just
over twenty percent (20%) of abuse and neglect allegations. Comparing the
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two-tiered system in 2012 to the four-tiered system in 2017, there were 60,835
fewer allegations subject to expungement under the four-tier system.5
The Department has promulgated regulations to successfully circumvent
the expungement statute by retaining records that are not supported by a
preponderance of the evidence. The Department has transformed the term “not
established” -- in Orwellian double-speak fashion -- to actually establish a
basis for not granting expungement relief to a parent, such as the mother here,
when allegations cannot be proven by the lowest evidential standard -- a
preponderance of the evidence.
The Legislature evidently intended “unfounded” abuse or neglect
allegations to be expunged because a parent cleared of such allegations should
not suffer collateral civil consequences. See N.J.S.A. 9:6-8.40a. Despite that
clear legislative objective, the disclosure of “not established” allegations to
some service providers under the Department’s “some evidence” standard has
the capacity to permanently and unfairly tar a parent’s reputation and deny that
parent meaningful opportunities.
5
The 2017 data can be found at Rutgers School of Social Work, Child
Abuse/Neglect Report, https://njchilddata.rutgers.edu/portal/child-abuse-
neglect-report (last visited May 12, 2020), by utilizing the filters for “Family
Reports” and “Findings.”
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IV.
The majority has made a commendable effort to mend a broken
regulatory scheme that denies parents such as S.C. -- cleared of wrongdoing
-- minimal standards of due process. I believe this regulatory scheme,
however, directly contravenes the legislation that it is intended to advance, and
therefore nothing short of eliminating the “not established” category is a fix.
An administrative agency possesses only those powers delegated to it by
the Legislature. See N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J.
544, 561-62 (1978). Although the grant of that authority “is to be liberally
construed in order to enable the agency to accomplish its statutory
responsibilities,” id. at 562, an agency cannot exercise powers that contravene
the statutory language or the Legislature’s intent, see A.A. Mastrangelo, Inc. v.
Comm’r of Dep’t of Envtl. Prot., 90 N.J. 666, 684 (1982). An administrative
regulation, moreover, “must be within the fair contemplation of the delegation
of the enabling statute.” S. Jersey Airways v. Nat’l Bank of Secaucus, 108
N.J. Super. 369, 383 (App. Div. 1970).
Title Nine directs the Department, when investigating allegations of
abuse and neglect, to determine whether those allegations are “substantiated”
or “unfounded.” See N.J.S.A. 9:6-8.10a; N.J.S.A. 9:6-8.40a. The Legislature
directed the Department to expunge the records of “unfounded” allegations ,
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delegating to the Department the authority to define the term “unfounded.”
See N.J.S.A. 9:6-8.40a. The Department accomplished that task by adopting a
regulation defining the term “unfounded” in accordance with the enabling
statute. Ibid.; 37 N.J.R. 282(a). By passing a bill that would have added a
category between substantiated and unfounded -- a bill ultimately vetoed by
the Governor -- the Legislature presumably expressed its understanding that
creating a new category was a legislative prerogative. See A. 4109/S. 1570
(vetoed by Governor Christie).
In express contravention of that legislative prerogative, as well as the
expungement statute, the Department promulgated the current four-tiered
system, adding the “not established” category that allows the Department to
maintain and share records despite a finding that a preponderance of the
evidence does not support an allegation against a parent. See N.J.A.C. 3A:10-
7.3(c); A.A. Mastrangelo, 90 N.J. at 684 (“[W]here the enabling legislation
cannot fairly be said to authorize the agency action in question, the power is
denied.”). The Department evidently was concerned that too many records
relating to abuse and neglect investigations were falling within the
“unfounded” category, resulting in the expungement of those records.
The Department’s position that abuse and neglect investigation records
should be maintained for the purpose of keeping track of potential repeat
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allegations, even if the investigated allegation does not meet the
preponderance of the evidence standard, is ultimately a policy decision. The
Legislature, however, has mandated that “unfounded” allegations, which the
Department has defined in N.J.A.C. 3A:10-7.3(c)(4), must be expunged. If the
Department believes that the expungement of all “unfounded” allegations is
not in the best interests of the State, it should present its case to the
Legislature. It bears mentioning that federal law permits the maintenance of
abuse and neglect records of “unsubstantiated” allegations for internal use
only, see 42 U.S.C. § 5106a(b)(2)(B)(xii), an approach that might mitigate the
due process concerns raised in this case.
V.
In summary, I agree with the majority that the Department’s “some
evidence” standard for making “not established” determinations is “vague,
amorphous, . . . incapable of any objective calibration,” and has led to
“shortcomings in fairness for parents and guardians involved in investigations
that lead to [‘not established’] findings.” Ante at ___ (slip op. at 4-5, 44). For
the reasons stated, however, I would go further and strike down the “not
established” category. I believe the Department, in creating a “not
established” category under N.J.A.C. 3A:10-7.3(c)(3), has exceeded the
authority delegated to it by the Legislature. The “not established” category has
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allowed the Department to elide making the determination that the Legislature
expects of it -- a determination whether the allegation is unfounded. The
Department’s good intentions cannot save a regulation that undermines the
Title Nine expungement statute. See A.A. Mastrangelo, 90 N.J. at 684.
I would end this case today and spare S.C. the hardship and expense of a
remand. The Department’s own investigative findings establish that the abuse
and neglect allegations in S.C.’s case are “unfounded,” as defined by the
Department’s own regulation. See N.J.A.C. 3A:10-7.3(c)(4) (“An allegation
shall be ‘unfounded’ if there is not a preponderance of the evidence indicating
that a child is an abused or neglected child . . . , and the evidence indicates that
a child was not harmed or placed at risk of harm.”).
I therefore respectfully concur in part and dissent in part from the
judgment of the Court.
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