United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter is before the Court on a motion for summary judgment
brought by Plaintiffs Erasmo Carmona, Patricia Laudati,
Albert Ray (ECF No. 62) and a cross-motion for summary
judgment brought by Defendant, Allison Blake, Commissioner of
the State of New Jersey's Department of Children and
Families ("DCF") (ECF No. 63).
are elementary and middle school teachers who complain that
Defendant DCF investigated an alleged child abuse
claim and that, as a result of the
investigation, DCF made a "not established"
finding. This means that no child abuse was found, but the
teacher was found to have harmed or placed a child at a risk
of harm (herein referred to as "harm provision").
According to the Code of Ethics of the Education Profession,
an educator "believes in the worth and dignity of each
human being" and "shall make reasonable effort to
protect the student from conditions harmful to learning or to
health and safety." Here, to accuse a teacher with
creating a risk of harm to a student is a serious accusation
which Plaintiffs allege injures their reputation. Each
teacher seeks a due process hearing under the Fourteenth
Amendment in order to defend their name. Each teacher asserts
that DCF acted arbitrarily in determining the child abuse
claim were "not established;" and that DCF
permanently keeps a record(s) which contains a "not
established" finding. Such reports can be disclosed to
certain categories of persons. At this time, there is no
protocol established by regulation to prevent disclosure of
such a findings report from occurring.
the eighties, there have been federal and state laws as well
as government programs to monitor and combat child abuse and
neglect. 42 U.S.C.A. § 5104. This includes federal
grants to the states for child abuse and neglect prevention
programs. 42 U.S.C.A. § 5106a. Such grants were awarded
to implement risk and safety assessment protocols in order to
protect children and to conduct investigations. 42 U.S.C.A.
§5106a(a)(4)(14). In order to manage the child abuse
issue, the prevalence of child abuse occurrences had to be
determined. As such, the federal government requires that
each state account for the number of children reported to it
as victims of child abuse and neglect; and the state must
also note the number of those claims that, after
investigation of the claim, were substantiated,
unsubstantiated or determined to be false. 42 U.S.C.A. §
order to accomplish the accounting as well as to oversee
regulatory operations in New Jersey, DCF is authorized to
investigate complaints about child abuse "for the
protection of children under 18 . . . who have had serious
injury inflicted upon them by other than accidental
means." N.J.S.A. 9:6-8.8(a). Under this law, the
"safety of the children served shall be of paramount
concern." Id. It "is the intent of this
legislation to assure that the lives of innocent children are
immediately safeguarded from further injury and possible
death and that the legal rights of such children are fully
protected." Id. See also DYFS v. A.L., 213 N.J.
1 (2013); DYFS v. IS., 214 N.J 8, cert, denied, 134
S.Ct. 529 (2013).
statutory scheme defines a child as abused or neglected where
a parent or guardian (a) inflicts physical injury that
creates a substantial risk of death, disfigurement or
impairment of physical or emotional health; (b) creates a
substantial or ongoing risk of physical injury to a child
other than accidental means; (c) sexually abuses a child; and
(d) places a child in imminent dangers of becoming impaired
due to failure to exercise a minimum degree of care. N.J.S.A.
9:6-8.9. The statutory scheme also provides that when the
investigator finds there is a substantiated finding of child
abuse, a hearing will be held and thereafter, if
substantiated, the accused will be entered on the child abuse
registry. N.J.S.A. 9:6-8.10. Lastly, the statute indicates
that the records of the investigation shall be kept
confidential, but thereafter itemizes 23 categories of
agencies and private entities to whom disclosure may be made
under certain circumstances. N.J.S.A. 9:6-8.10(a).
to those statutory mandates, DCF promulgated regulations
setting forth the process for undertaking a child protection
investigation. N.J.A.C. 3A: 10-4.1. More specifically, the
regulations detail what steps an investigator must employ in
conducting an investigation, such as interviewing the alleged
child victim, the caregiver, the reporter of the conduct,
etc. Id. The investigator may seize evidence such as
clothing, and may photograph the scene during the
investigation. N.J.A.C. 3A: 10-43. The investigator may refer
the case to the prosecutor or seek law enforcement
assistance. N.J.A.C. 3A:10-5.1, 5.4. And finally, the
investigator may seek emergency placement of an abused child.
N.J.A.C. 3A: 10-6.2.
the role of the investigator is very specific in the
regulatory scheme, often the facts ascertained during an
investigation do not clearly support a finding that child
abuse occurred. As such, federal and state law provide for
the expungement of records of an individual accused of child
abuse, where the child abuse claim was determined to be
unfounded. 42 U.S.C.A. § 5106a(b)(2)(A)(xii); N.J.S.A.
DCF investigators would classify the conduct of alleged child
abuse or neglect as either substantiated or unfounded. If the
conduct was substantiated, the accused was subject to a
hearing, and the identity of that person was placed on the
child abuse registry. If the conduct was unfounded, the
identity of the accused would not be placed on the child
abuse registry, and, generally, the record could be expunged
within three years. Over years of experience, DCF
investigators found that the categories of
"substantiated" and "unfounded" did not
adequately address the range of conduct investigated.
Obviously there is a "large gap between abuse and proper
behavior, " that was not addressed by the categories
previously set in place. See In re A.I., 393
N.J.Super. 114, 124, 922 A.2d 817, 823, fn. 3 (App. Div.
2007). The new regulation adopted by DCF appear to have
sought bridging this gap by amending the types of findings
that an investigator may use to categorize allegations of
child abuse. That is, DCF adopted a four-tier framework.
N.J.A.C. 3A: 10-7.3(c). DCF explained in its rule proposal
that "redefining the current investigative findings of
'substantiated' and 'unfounded' and adding
two intermediary investigative findings of
'established' and 'not established'"
allow the investigative findings and records to better
reflect the circumstances of an investigation. The inclusion
of the "established" finding in addition to the
existing "substantiated" finding will allow the
Division to distinguish incidents of abuse and neglect that
are of sufficient concern that the incidents would
necessitate a Child Abuse Record Information [CARI]
disclosure. Lastly, when a finding is determined to be
"unfounded" such records are expunged from the
Division's records; the inclusion of the "not
established" finding will allow the Division to retain
records where a child is found to have been harmed or placed
at risk of harm. This will allow the Division to have a
better and more comprehensive understanding of a family
should additional referrals be received by the Division in
[44 N.J.R. 357(a) (Feb. 21, 2012).]
definition of the four categories of incidents including the
two new intermediary investigative findings were adopted by
regulation (N.J.A.C. 3A: 10-7.3(c)):
(c) 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:
2. An allegation shall be "established" 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, but the act or acts committed or omitted do not
warrant a finding of "substantiated" as defined in
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.
completion of an investigation, the investigator categorizes
the conduct into one of the four. A finding of
"established" or "substantiated"
constitutes a determination that a child was abused or
neglected. N.J.A.C. 3A;10-7.3(d). After a hearing which
affirms the investigator's category, such a finding may
be entered on the Child Abuse Registry. N.J.A.C.
3A:10-7.6(c)(27). The Registry is a "report of all
information regarding child abuse or neglect accessible to
the public." N.J.S.A. 9:6-8.11. A DCF employee may
disclose the identity of such an individual who is set forth
in the registry under certain circumstances. N.J.A.C. 3A:
10-7.7(a). The disclosure is limited. "The legislature
requires the Department to forward all reports of
substantiated findings to the Child Abuse Registry."
N.J.S.A. 9:6-8.10a. Such records are "to be kept
confidential, " except if disclosure is "authorized
under subsections (B), (C), (D), (E), (F) and (G) of the
statute." N.J.S.A. 9:6-8.10a. These subsections permit
disclosure under certain circumstances. Subsection (B) lists
23 types of governmental bodies, individuals and
organizations to whom DCF may release child abuse
information. Of the 23, one exception (13) allows "any
person or entity mandated to consider child abuse or neglect
information when conducting a background check or employment
related screening to access the report."
N.J.S.A.9;6-8.10a(b) (13). So if a teacher wishes to
volunteer as a little league coach or as a Girl Scout leader,
arguably, his or her record may be subject to disclosure
under this exception. In addition, if a teacher sought a new
teaching position in a different school district, the report
may also be disclosed to any prospective employer
investigating the teacher's background. Moreover, another
exception, (14), provides that "any person conducting a
disciplinary, administrative or judicial proceeding to
determine the terms of employment or continued employment,
" may access the record. So, exception (14) may also
subject a teacher to ongoing disclosure to any school
administrator, school board, licensing board, or others who
may have some control over terms of employment. On the other
hand, the statute also authorizes the Department to deny
access to authorized persons if such access would
"compromise the integrity of the Department
investigation, " or would "likely endanger"
the well-being of any child once the teacher is listed on the
Child Abuse Registry. There is no mechanism to prevent
disclosure. N.J.S.A.9;6-8.10a(e). In its brief, DCF suggests
that the identity on the Child Abuse Registry is not as broad
as described above, but it may be disclosed in response to a
Child Abuse Registry Investigation Check (CARI check); and
DCF acknowledges that a CARI check is authorized:
under limited circumstances. N.J.S.A. 9:6-8.11; N.J.A.C.
3A:10-7.6(c)(2) and -7.7. The following persons are subject
to CARI checks: Child Care Center Employees - N.J.S.A.
30:5B-6.2; Resource Parent applications -N.J.S.A. 30:4C-27.7;
Kinship Legal Guardians - N.J.S.A. 30:4C-86; DCF/Division of
Developmental Disabilities (DDD) Residential Center Employees
-N.J.S.A. 30:4C-27.22; Registered Family Child Care providers
- N.J.S.A. 30:5B-25.3; Division of Family Development (DFD)
Approved Homes -N.J.S.A. 30:5B-32; Professional Guardians for
the Elderly -N.J.S.A. 9:6-8. 1Oe; Persons assuming care for
children of incarcerated parents - N.J.S.A. 9:6-8-10c;
Adoption Agency Employees - N.J.S.A. - 9:3-40.8; Prospective
Court-Appointed Special Advocate (CASA) volunteers - N.J.S.A.
- 2A:4A-92(d)(2); Adoptive parents (private or DCF) -
N.J.S.A. 9:3-54.2; DCF employees; and Juvenile Justice
Commission employees - Prison Rape Elimination Act (PREA)-42
U.S.C. 15601; 28 CFR 115.317; N.J.S.A. 9:6-8.10a(b)(20).
(ECF 63-1 at 9, n.2). The problem which arises is that for
substantiated or established cases, the accused has a right
to a hearing in order to dispute such a finding; and if the
claim is unfounded, the accused is not placed on the Child
Abuse Registry, and the record is usually expunged after
three years (N.J.A.C. 3A;10-7.7(b); N.J.A.C. 3A:10-8).
However, if an investigator finds certain conduct to be
"not established, " DCF maintains a record for an
unlimited period of time, and there are no established means
or procedures for an accused teacher to dispute the findings.
reviewing the category of "not established, "
Plaintiff teachers complain that the Findings Report of the
investigator are arbitrary; and they should have a right to a
hearing or have some method to defend themselves against such
a finding that a "child was harmed or was placed at risk
of harm." (ECF 62-8 at 6). To the contrary, DCF argues
that a "not established" finding is insignificant,
since the record is not placed on the Child Abuse Registry,
and is not readily available to the general public.
Therefore, DCF concludes that the "not established"
finding does not rise to the level where due process rights
must be afforded to a teacher. N.J.A.C. 3A:10-7.6(c)(2). (ECF
63-1 at 30-32).
parties submitted Statements of Undisputed Facts in support
of their motions, which included the Findings Report of DCF
on each Plaintiff teacher for each investigation. Those
Findings Reports are part of the record which DCF maintains.
Each of the Plaintiff teachers were investigated by a DCF
investigator as a result of an incident with a child, and
each received a "not established" finding as a
result of the investigation. That is, the DCF investigator
could not find by a preponderance of the evidence that the
teachers abused or neglected a child, however, there is an
implication that the child was harmed or placed at a risk of
harm by the teacher's actions. DCF then memorialized its
findings in a Findings Report which was communicated to the
school district, and DCF maintained a permanent record of the
findings. DCF's submitted statement of undisputed facts
does not include any facts about the procedure and safeguards
it maintains for "not established" Findings
Reports. Each teacher is discussed below:
about January 30, 2014, the DCF commenced an investigation
into allegations of child abuse and neglect against Plaintiff
Patricia Laudati, an elementary school teacher at the Walter
C. Black Elementary School in East Windsor, New Jersey.
(Second Amended Complaint at ¶20; ECF 37). She had been
teaching for approximately 40 years when the incident
occurred. (ECF 62-6 at 46:1 -24; 49:2-8). According to the
Findings Report from DCF, Ms. Laudati "knocked on the
top of a [child's] head three times, " and her
conduct was categorized as "not established." (ECF
62-3 at 1). The Findings Report dated February 25, 2014 is a
letter to Ms. Laudati from the DCF investigator. This letter
was also forwarded to the superintendent of the school
district. (ECF 62-3). The Findings Report has several major
Findings Report sets forth the DCF's authority to
investigate allegations of child abuse and neglect (ECF 62-3
DCF investigator found the "Physical Abuse/Substantial
Risk of Physical Injury Environment Injurious to Health and
Welfare [of a child] is not established" (Id.);
Findings Report notes that "no adjudicative findings
have been made, " and DCF's role is "solely
investigatory"; and "not established" findings
are not disclosed in a child abuse registry check (CARI) but
are maintained in agency records (Id.);
Findings Report incorrectly defines "not
established" as one where "there is no
preponderance of evidence that the child was abused or
neglected as defined in N.J.S.A. 9:6-8.21" but it fails
to complete the regulatory definition of not established with
the clause - "the evidence indicates the child was
harmed or placed at risk of harm." (Id.).
"investigative observation" section of the Findings
Report consisted of interviews of students, one of which
corroborated the alleged victims account while others did not
(ECF 62-3 at 1-2). This section also mentions that Ms.
Laudati "denied that this incident occurred" during
her interview. Ultimately the investigator found that
"[b]ased upon the interviews and physical observations
of [the child] she was not abused."
report notes that "appropriate licensing or supervisory
authority may take additional action as a result of the
investigation"; and the confidentiality statement
indicates limited disclosure may be made. (ECF 62-3 at 2).
The confidentiality statement reads:
Please be advised that the results of the Department's
investigation, including identifying Information, are
maintained in the Department's files and can only be
disclosed as set forth in N.J.SA 9:6-8.10a. In accordance
with the statute, however, we can release the findings report
to administration to help ensure that proper care, treatment
or supervision is provided, not only to the specific child or
children involved here but to all children under the care and
supervision of the above referenced facility. These reports
may be used by any person or entity conducting a
disciplinary, administrative or judicial proceeding to
determine terms of employment of an officer, employee or
volunteer with an agency or organization providing services
Also be advised that pursuant to this statute, the Department
is required to forward to the police or law enforcement
agency certain identifying information regarding all
substantiated incidents of child abuse and neglect, including
the identity of persons alleged to have committed child abuse
or neglect and of victims of child abuse or neglect.
(Id.). The above confidentiality statement refers to
a statute (N.J.S.A. 9:6-8.10a), which allows the disclosure
of information about an accuser who is placed on the Child
Abuse Registry (see discussion on p. 5-7). Since only
substantiated or established reports are placed on the said
registry, this statement infers that that DCF may disclose a
"not established" finding on a CARI check.
Similarly, in the last paragraph, it infers that DCF may
disclose the report to law enforcement regarding "all
substantiated claims, " but here there is not such
finding. The content of the confidentiality statement raises
concerns that DCF may disclose such information to the 23
categories of recipients under N.J.S.A. 9:6-8.10a, despite
statutes to the contrary. Obviously, the Findings Report must
be disclosed to the teacher's present school district and
to the police, if they were contacted previously, but the
confidentiality statement does not limit disclosure in that
Findings Report is also troubling because only a portion of
the definition of "not established" is set forth in
the Findings Report. Without the full definition, one is
uncertain whether the investigator considered the harm
provision as a whole. There is also no reason articulated in
the Findings Report why or how Ms. Laudati harmed or placed a
child at a risk of harm. Similarly the Findings Report does
not set forth any standards or factors to determine what type
of conduct constitutes "not established." For
example, the regulations list a host of factors to be
considered in determining a finding of
"substantiated" or "established."
(N.J.A.C. 3A: 10-7.5); but there is no such guideline
concerning the harm provision. Due to the lack of the full
definition of "not established" and the failure to