NJSBA Family Law Section

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  • 1.  Finding of Not Established

    Posted 01-06-2015 03:26 PM
    This message has been cross posted to the following Discussions: Child Welfare Law and Family Law .
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    This is an out of court DCPP matter (complaint was never filed and this case has never been before a Judge). My client received a letter from DCPP stating that after the investigation was completed, DCPP made a finding of Not Established. However, the Division is requesting that the family comply with services (particularly substance abuse treatment). Due to the fact that they decided this case was Not Established, what actions could the Division take should my client decide not to comply with services?

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    Marissa Hirsch Esq.
    (201) 798- 8000
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  • 2.  RE: Finding of Not Established

    Posted 01-06-2015 03:40 PM
    The short answer is "anything they want." Remember how powerful the Division is. If your clients are asked to do something they think is too time consuming or even ridiculous, and sensible discussion won't work, you can ask to talk to their attorney. They still have an attorney even in un-litigated cases. They can file a complaint asking for care and supervision of the children to drag it into court to get orders for your clients to comply with the recommended services. I usually tell my clients in un-litigated cases not to submit to psychological or parenting capacity evaluations. There will always be issues per the Division's "experts" and you will end up in court anyway after one of these evaluations. Better to go in and argue why they should not be evaluated, most times, IMHO.

    More than half of my practice is this stuff. Be happy to talk to you. What your clients should/should not do is fact sensitive.





    Carol A. Weil, RN, JD
    Attorney at Law
    1405 Chews Landing Rd., Ste. 8
    Laurel Springs, NJ 08021
    (856) 352-0050
    Fax: (856) 352-0276


    Original Message


  • 3.  RE: Finding of Not Established

    Posted 01-06-2015 04:38 PM
    Under the DCPP regs (N.J.A.C. 10:129-7.3 et seq.) a finding of not
    established merely means that DCPP determined it cannot prove by a
    preponderance of the evidence that the child(ren) involved were abused or
    neglected as that phrase is defined in NJSA 9:8.21. However, the finding
    also means that DCPP determined that there is evidence that the children
    were harmed or placed at a risk of harm. Although the administrative
    finding (which btw is not administratively appealable) precludes DCPP from
    instituting abuse or neglect (Title 9) litigation, it does not preclude the
    agency from filing an action seeking an order to investigate under NJSA
    30:4C-12 the result of which would very likely be an order directing your
    client to complete the substance abuse evaluation. Further, the same
    statute also authorizes DCPP to file a complaint seeking custody care and
    supervision of the child if it can prove the parents are unfit or otherwise
    unable to provide a safe home for the child. The Title 30 authority is
    separate and apart from the Title 9 authority. So, the not established
    finding really doesn't affect it. Hope this is helpful.
    Jim Colaprico


    Original Message


  • 4.  RE: Finding of Not Established

    Posted 01-06-2015 05:09 PM

    Be very careful with the new "tiers."  As you note, a finding of "established" is a finding that a child has been harmed or placed at imminent risk of substantial harm.  Further, an "established" finding does NOT mean the Division won't institute title 9 litigation.  I am Designated Counsel for OPR and I have a client that was "established" for educational neglect, the Division filed a complaint under Title 9, despite numerous efforts by trial counsel to proceed under Title 30, the Division insisted on moving forward for a fact finding, discovery was exchanged, and on the very day of the fact finding the Division moved to dismiss the complaint.  The trial court granted that motion and denied reconsideration reasoning that there was no provision for a fact finding in the statute or regs (I don't agree, under the statute, a finding that you have abused or neglected your child entitles you to a fact finding) and that the client wasn't facing a consequence of magnitude because her name wasn't on the CARI list.  But an "established" finding can be used to bump up a future referral to a substantiated.  So that is a consequence.  And we all know that once your client is involved with the Division, it is likely there are going to be future involvements.
    And in my case, my client litigated this matter for months and then never gets her day in court with a fact finding.  My client was represented by the public defenders office, but there are clients paying private attorneys to litigate in court and being denied fact findings.  There is another appeal coming down the pike on this issue with private counsel.

    There is law to support that a client who is "established" should still get her day in court or should still be entitled to an administrative hearing to challenge it.  If this is an issue for anyone, I'll be happy to share my brief.  Unless I lose . . . :(

     

    Clara

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    Law Office of
    Clara S. Licata, Esq.
    55 Harristown Rd.
    Suite 302
    Glen Rock, NJ 07452
    201-612-1170
    Fax 201-612-1179
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    Original Message