New Jersey Supreme Court Rules in “Not Established” Case

On November 18, 2019, on behalf of the New Jersey State Bar Association, Jeralyn Lawrence argued before the New Jersey Supreme Court. The case examined the “not established” standard under New Jersey’s child welfare laws and whether or not a parent/caregiver is entitled to appeal when the Division of Child Protection and Permanency concludes “not established” following an investigation of abuse or neglect. The New Jersey State Bar Association took the position that the “not established” finding should be abolished altogether. “The potential for misuse, the likelihood of interference with an individual’s right to parent, and the consequences of a damaged reputation with no real course of remediation is clear and harmful,” argued the association.

Last week, the Supreme Court issued their decision. In their ruling, the New Jersey Supreme Court held that the Department of Children and Families’ use of the “not established” standard, agreeing with the New Jersey State Bar Association’s amicus curiae arguments. The 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. The Court did not address the abolition of the “not established” finding because the plaintiff in the case did not raise it as an issue in the underlying case.

“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.” Justice Albin, in his dissent, did agree with the NJSBA position, opining that 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 Lawrence, Daniel A. Burton, Thomas J. DeCataldo, Jr. and Family Law Section Chair Ronald G. Lieberman. Joining as amicus were Legal Services of New Jersey, the New Jersey American Civil Liberties Union and the state Public Defender’s Office of Parental Representation.