NJSBA amicus participation in DCF challenge raises concerns in Supreme Court opinion

The New Jersey Supreme Court issued an opinion last week signaling concerns with the Department of Children and Families' use of the "not established" finding, agreeing with the New Jersey State Bar Association's (NJSBA) amicus curiae arguments. In the matter of S.C. v. New Jersey Department of Children and Families, Docket No. A-57-18, the Supreme Court held that the standard for a finding of "not established" is "vague, amorphous, and incapable of any objective calibration," because it requires less than a preponderance of the evidence and only requires "some" evidence.

In a majority opinion by Justice Jaynee LaVecchia, the Court said, "All we know is that [the "not established" finding] 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 underlying matter up on appeal challenged the finding of "not established" after a child reported to his school that S.C. hit him with an open hand and a spatula. The department investigated the claim, and determined there was not a preponderance of the evidence to show abuse or neglect. The investigation, though, which was not shared with S.C., resulted in a finding of "not established," which was conveyed to S.C. in a form letter containing no facts to support the finding and no opportunity to appeal the decision.

The Court reversed the finding and remanded the decision for clarification of the finding. With respect to the abolition of the "not established" finding, the Court held that because S.C. conceded she did not raise the issue below, the Court had no jurisdiction to decide the issue. This drew a sharp criticism of the majority's decision on the issue of abolishing the "not established" finding by Justice Barry Albin.

Concurring in part and dissenting in part, Justice Albin said, "I believe 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. 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."

"This is a very important decision as it highlights that, notwithstanding the basis of the appeal, the NJSBA was a driving force in impacting change in the underlying regulatory and statutory deficiencies," said NJSBA First Vice President Jeralyn L. Lawrence, who argued the case for the NJSBA.

"The majority opinion agreed with our arguments and added levels of protection on the standard and specifically said it would be 'well worth the effort' of the state Department of Children and Families to revisit that regulatory language concerning the standard 'as well as its processes related to such findings.' However, Justice Albin in his dissent did agree with the NJSBA position, saying the standard should be abolished," Lawrence said. "Even though the finding didn't abolish the category, the NJSBA moved the needle significantly and in doing so, helped many, many families," she said.

The NJSBA's brief was written by Daniel A. Burton, Thomas J. DeCataldo Jr., Jeralyn L. Lawrence and Ronald G. Lieberman. Lawrence argued the matter on behalf of the NJSBA. Joining as amicus were Legal Services of New Jersey, the New Jersey American Civil Liberties Union and the Public Defender's Office of Parental Representation.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.