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New Jersey Department of Children and Families v. R.R.

Superior Court of New Jersey, Appellate Division

March 19, 2018

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent,
v.
R.R., Respondent-Appellant.

          Argued February 26, 2018

         On 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).

          Alicia 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).

          Before Judges Sabatino, [1] Ostrer and Rose.

          OPINION

          OSTRER, J.A.D.

         Defendant 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.

         The 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.[2] Having considered defendant's arguments in light of the factual record and the governing legal standard, we reverse.

         I.

         We 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).

         "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." 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).[3] 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.

         By 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).[4]

         Thus, a "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 86).

         Second, 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).[5] 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" ...


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