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Ray v. Blake

United States District Court, D. New Jersey

April 12, 2018

ALBERT RAY, PATRICIA LAUDATI, and ERASMO CARMONA, Plaintiffs,
v.
ALLISON BLAKE, in her official capacity as the Commissioner of the State of New Jersey, Department of Children and Families Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This 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).

         I.

         Plaintiffs are elementary and middle school teachers who complain that Defendant DCF investigated an alleged child abuse claim[1] 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.

         Since 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. § 5106a(d)(1)(2).

         In 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).

         The 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).

         Pursuant 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.

         Although 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. 9:6-8.40a.

         Previously, 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'" would

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 the future.

[44 N.J.R. 357(a) (Feb. 21, 2012).]

         The 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: 10-7.5.
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 (c)l 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.

         Upon 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.

         In 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).

         II.

         Both 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:

         Patricia Laudati

         On or 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 points.

         1) The Findings Report sets forth the DCF's authority to investigate allegations of child abuse and neglect (ECF 62-3 at 1);

         2) The DCF investigator found the "Physical Abuse/Substantial Risk of Physical Injury Environment Injurious to Health and Welfare [of a child] is not established" (Id.);

         3) The 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.);

         4) The 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.).

         5) The "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."

         6) The 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 to children.
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 fashion.

         The 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 ...


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