New Jersey Supreme Court Issues Decision Impacting Child Abuse and Neglect Investigations in Public
For anyone who works in a public school, an allegation of child abuse leading to an investigation by the Department of Children and Families (“DCF”) is an occupational hazard. For decades, the law regarding the prevention of child abuse and neglect (N.J.S.A. 9:6-8.10) has provided for a report and investigation of any “reasonable cause” to believe conduct potentially injurious to a child has occurred. Those investigations in a school setting are conducted by the Institutional Abuse Investigation Unit (“IAIU”) of the DCF. Specifically, the IAIU is responsible for conducting investigations into allegations of child abuse or neglect in public schools, among other settings.
Litigation related to the finding reports of the IAIU has been occurring for decades. For example, on multiple occasions, the Courts have required the IAIU to rewrite its reports to exclude groundless negative commentary. Most recently, in S.C. v. Department of Children and Families, decided on May 27, 2020, the New Jersey Supreme Court issued a decision impacting investigations carried out by the IAIU, although the IAIU was not the investigating agency in that case.
When the IAIU completes its investigation, one of four possible findings are made. Those findings are Unfounded, Not Established, Established, and Substantiated. The IAIU then provides a copy of the findings report to the school district. In S.C., the Court’s decision was limited to the “Not Established” finding category. First, some background is in order regarding this finding. As one Appellate Court described it, “One might wonder why a person would appeal such an apparently favorable finding, but the meaning of "not established" is not what it seems. … it still permanently tars [the alleged perpetrator] with a finding that there was something to the allegation.” That is because a Not Established finding is defined by the law to mean that although no child abuse or neglect was proven, there was some evidence that indicated that the child was “harmed or was placed at risk of harm.” Against this backdrop, the appellant in S.C. challenged the Not Established finding.
The court made two significant holdings: 1) that due process and fundamental fairness requires the agency to provide the alleged perpetrator with a summary of the support for the finding and an opportunity to rebut or supplement the record before the agency finalizes it’s finding (what the Court calls an informal opportunity to be heard); and, 2) the Not Established finding must be supported by “credible,” as opposed to simply “some” evidence as the governing regulation says. The Court stopped short of mandating formal due process hearings to challenge the finding. The Court did not go as far as invalidating the Not Established finding category because that issue was not raised on appeal.
One of the drawbacks of this decision is that where a person receives a Not Established finding, a more detailed and thorough explanation of how he or she caused harm or risk of harm may very well lead employers to impose discipline for workplace misconduct even though no finding of child abuse or neglect was made. Be that as it may, this decision may be a slight victory because the person being investigated will have access to at least some of the investigatory record which was previously not available unless an appeal was filed after the findings report was issued.
In light of these changes in the law, school employees must not make the mistake of talking to an IAIU investigator on their own, no matter how much he or she attempts to tell them that it is a minor matter. No such allegation is minor until it is dismissed. The Zazzali firm will continue to monitor the developments in this area of the law.