NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent,
February 26, 2018
appeal from the Department of Children and Families, Division
of Child Protection and Permanency, Case ID No. 16866253.
Elizabeth D. Burke argued the cause for appellant (Ziegler
& Zemsky, LLC, attorneys; Melissa B. Zemsky and Elizabeth
M. Foster-Fernandez, on the briefs).
Y. Bergman, Deputy Attorney General, argued the cause for
respondent (Gurbir S. Grewal, Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney General, of counsel;
Alicia Y. Bergman, on the brief).
Judges Sabatino,  Ostrer and Rose.
R.R. appeals from the finding of the Division of Child
Protection and Permanency that allegations he abused or
neglected his then seven-year-old daughter E.R. were
"not established." N.J.A.C. 3A:10-7.3(c)(3). One
might wonder why a person would appeal such an apparently
favorable finding, but the meaning of "not
established" is not what it seems. As we discuss, it
still permanently tars a parent with a finding that there was
something to the allegation.
allegations pertained to an incident in which R.R. tried to
stop his daughter from throwing a tantrum. He grabbed her by
the arms. She broke free, struck a bed or a wall, and fell to
the floor, without injury. The finding was set forth in a
letter signed by the Division's intake worker, who
conducted the field investigation, and the worker's field
office supervisor. Having considered defendant's
arguments in light of the factual record and the governing
legal standard, we reverse.
first review the legal nature of a "not
established" finding. The finding is one of four
outcomes the Division may reach after investigating an abuse
or neglect allegation. See N.J.A.C. 3A:10-7.3(c)(1)-(4);
Dep't of Children & Families v. D.B., 443
N.J.Super. 431, 441-42 (App. Div. 2015) (discussing four-tier
framework of "substantiated",
"established", "not established", and
"unfounded" allegations); see also 44 N.J.R. 357(a)
(Feb. 21, 2012) (initial rule proposal); 44 N.J.R. 2437(a)
(Nov. 5, 2012) (notice of substantial change); 45 N.J.R.
738(a) (Apr. 1, 2013) (final rule adoption).
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." N.J.A.C. 3A:10-7.3(c)(3) (emphasis added). A
parent is completely cleared of wrongdoing only if the
allegation is "unfounded, " that is, "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). The Division must
indefinitely retain on file the record of "not
established" findings. N.J.A.C. 3A:10-8.1(b). But,
records related to "unfounded" findings are
generally expunged. See N.J.A.C. 3A:10-8.1(a), -8.3.
contrast, both "substantiated" and
"established" allegations involve findings by
"the preponderance of the evidence . . . that a child is
an 'abused or neglected child'" under the
statute. N.J.A.C. 3A:10-7.3(c)(1), -7.3(c)(2).
"not established" finding may differ from an
"established" or "substantiated" finding
of abuse or neglect two ways: first, relating to the quantum
of evidence, and second, the nature of the finding. To defeat
a preponderance-of-the-evidence finding, the evidence that a
child was not abused or neglected must be at least equal to
or greater than the evidence the child was abused or
neglected. See N.J. Div. of Youth & Family Servs. v.
N.S., 412 N.J.Super. 593, 615 (App. Div. 2010) (stating,
under a preponderance-of-the-evidence standard, a litigant
must establish that the "desired inference is more
probable than not, " and evidence "in
equipoise" does not satisfy the litigant's burden
(quoting Liberty Mut. Ins. Co. v. Land, 186 N.J 163,
169 (2006)). As the Department of Children and Families
explained in adopting the regulation, "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." 45 N.J.R. 738(a) (response to Comment
in a "not established" finding, that lesser quantum
of evidence "indicates" only a child "was
harmed or was placed at risk of harm, " and does not
establish the child was an "abused or neglected
child" under N.J.S.A. 9:6-8.21(c). N.J.A.C.
3A:10-7.3(c)(3). In particular, placing a child "at
risk of harm" may involve a lesser risk than the
"substantial risk of harm" or "imminent
danger" required to establish abuse or neglect under the
statute. As the Department explained, "Where utilized,
'evidence indicates' refers to a child having been
harmed or placed at risk of harm. This is a lesser standard
than satisfaction of the statutory requirement in N.J.S.A.
9:6-8.21." 45 N.J.R. 738(a) (response to Comment 45). A
"not established" ...