Hi all....I am also an OPR Pool Attorney and have been for 20 years. I stand corrected as we were told differently back when the new labels started. I don't want to be a pain, but will you please send me (or the whole group) a copy of the opinion when the case ends? The Division in Gloucester County has been offering clients a Title 30 "family in need of services" in lieu of a fact-finding in "established" cases but the catch is that they want a promise under oath that the client will not attempt to appeal the "established" finding. This list is great....always learning something. I also do appeals for OPR Appellate and have not seen this appealed. Thanks. Carol
Original Message------
I am a pool attorney for the Office of Parental Representation and I have this very issue on appeal in the Appellate Division. It has been fully briefed and is waiting for oral argument. Another staff attorney in OPR Appellate also has this issue in the App. Div. and that case may also be fully briefed at this point. Our position is that a finding that abuse and neglect has been "established" is, according to the Division's own regulations, a finding by a preponderance of the evidence, that abuse and/or neglect has occured. What differentiates it from a substantiated finding is the absence of some aggravating factors that are enumerated in the rules. Bear in mind that the "preponderance of the evidence" finding is made by an investigator who is not even an atttorney and the App. Div. has commented in dicta in cases that this, in and of itself, is concerning. Our position also is that the regs and the public comment and inquiry pursuant to the adoption of the new rules do not make it absolutely clear that an established finding does not place you on the child abuse registry. The App. Div. has noted that there are certain situations where the fact that an investigation occurred may be disclosed without disclosing the finding. This in itself can be harmful. Our position is that this is a consequence of magnitude entitling the parent to a hearing. In addition, we consider the "established" finding an agency determination that is entitled to direct appeal to the App. Div. under R. 2:2-3(a)(2). The problem with that is you don't have a record to appeal. But case law says that in that situation, the App. Div. remands back to court (usually the Law Div., but here it would be chancery) to develop a record. These are our arguments, we'll see where they go.
In your circumstances, I don't know where you want to go with this and how far you want to take it. I would definitely challenge the use of this finding in your divorce action, considering the lack of due process in the manner in which the determination was made. Your client had no opportunity to challenge that finding. If your client is concerned with being branded a perpetrator of child abuse (notwithstanding the Division's assurances that the finding is not discloseable, which as I said above I am not absolutely sure about), then he or she may want to try to challenge this further. So, the way I would approach this is I would file the appeal papers with DCPP. It will be rejected, of course. I would then make a motion for a hearing directly to the Director. That will be denied, too, but then you will have this denial to appeal to the App. Div., in addition to the initial agency investigation.
Feel free to call me. I can send you my brief off line so that you can understand the law and regs involved.
Clara
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Original Message:
Sent: 07-30-2015 14:24
From: Kathleen Stockton
Subject: Appeal of DCPP "Established" Finding
Does anyone know if and how you can appeal or challenge a DCPP finding of "Established" for abuse or neglect? I am aware that a finding of "Substantiated" can be administratively appealed to the Office of Administrative Law but I am assuming an "Established" finding is an easy way out for DCPP since it seems impossible to challenge or question their conclusions. No complaint has been filed by DCPP. I am concerned about this finding being used against my client in a pending custody/divorce matter.
Kathleen P. Stockton, Esq.
One Centennial Square
Haddonfield, NJ 08033
Direct Dial: 856-616-2604
Fax: 856-795-0574
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www.archerlaw.com<http://www.archerlaw.com>
[Archer & Greiner, P.C.]<http://www.archerlaw.com/>
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