NJ Supreme Court Flags ‘Problems’ in Standards Used for Child Abuse Investigations

June 17, 2020 – Press Releases

A Fox Rothschild litigation team’s work on behalf of the ACLU of New Jersey has prompted the New Jersey Supreme Court to order the state’s Department of Children and Families to reexamine allegations of child abuse in a case that highlighted a structural flaw in the system.

Partner Jacob S. Perskie and associate Victoria T. Salami drafted an amicus brief last year in S.C. v. NJ Department of Children and Families, that argued the agency’s current system of handling child abuse cases causes some people to suffer lasting damage to their reputations without providing them a chance to clear their names. ACLU attorney Katherine Haas joined the brief and later argued the case.

In the brief, Perskie and Salami argued that the case illustrated an unfairness in DCF’s process because, despite a finding that the child abuse accusations were “not established,” the mother’s name was nonetheless added to a widely disseminated list, making it impossible for her to seek certain jobs.

DCF investigations lead to one of four possible findings: “substantiated,” “established,” “not established” or “unfounded.” But the accused is entitled to a hearing only in cases where the allegations were “substantiated” or “established.”

Perskie and Salami argued that even in cases where the allegations are deemed “not established,” serious consequences can result due to a “parallel determination” by the Division that there was evidence to indicate that a child was harmed or placed at risk.

“The term ‘not established’ is regulatory double-speak,” they wrote in the brief.

In a 68-page opinion handed down on May 27, Justice Jaynee LaVecchia, said the court “recognizes problems with the standard as presently articulated and notes that it would be well worth the effort of the Department to revisit its regulatory language concerning the standard for making a ‘not established’ finding as well as its processes related to such findings.”

Writing for six of the court’s seven justices, LaVecchia said S.C.’s case must be reopened “for the Department to provide improved notice of the basis on which its investigation has found some evidence – which the Court stresses must be some credible evidence – to support the allegation of harm.”

The Supreme Court ordered that the mother’s case be reopened and instructed DCF “to provide improved notice of the basis” for its findings as well as an opportunity for the mother to respond.

In a powerfully worded dissent Justice Barry T. Albin said he would have gone further because it was clear that the DCF process was flawed.

Albin adopted arguments that Perskie and Salami advanced in the ACLU’s brief, noting that statistics show DCF staff workers now categorize most unproveable child abuse complaints as “not established” – a finding that leaves the accused ineligible for expungement.

“The Department has promulgated regulations to successfully circumvent the expungement statute by retaining records that are not supported by a preponderance of the evidence,” Justice Albin wrote.

In doing so, Justice Albin wrote, the Department “has transformed the term ‘not established’ – in Orwellian double-speak fashion – to actually establish a basis for not granting expungement relief to a parent, such as the mother here, when allegations cannot be proven by the lowest evidential standard.”

Perskie said the ruling “is a hugely important first step in repairing this structural flaw. Now it’s incumbent upon DCF to rectify this not only in S.C.’s case but in a way that ensures fairness in all cases.”