S.C. v. New Jersey Department of Children and Families (081870) (Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

S.C. v. New Jersey Department of Children and Families (A-57-18) (081870)

Argued November 18, 2019 -- Decided May 27, 2020

LaVECCHIA, J., writing for the Court.

This appeal involves the investigation into a claim that a mother, S.C., abused her
seven-year-old son by engaging in corporal punishment. The Department of Children
and Families (Department) concluded, after its investigation, that the claim of abuse was
“not established.” Because the abuse allegation was deemed “not established” rather than
“unfounded,” it is not eligible to be expunged. S.C. appealed the Department’s action,
claiming (1) a deprivation of her due process rights because she was not afforded a
hearing and (2) that the Department’s “not established” finding was arbitrary and
capricious because the record was insufficient to support a finding that her son was
harmed. S.C. has not raised a direct challenge to the validity of having a “not
established” finding category in the Department’s regulations, although some amici have
urged that the category be declared illegitimate and eliminated.

In May 2016, the Department received a report of suspected child abuse from an
education official in a school district. The abuse allegedly concerned one of S.C.’s
triplets, “Luke,” who refused to make a Mother’s Day card for S.C. and said, among
other things, that his mother hits him with an open hand and with a spatula. A
Department investigator interviewed Luke, his sisters, S.C., and her husband (“Martin”).
The investigator also visited the children’s school. The children’s principal said that on
the day that Luke made the allegation the boy was having a bad week, which was unusual
for him. Although he had behavioral problems in the past, she said that Luke had
“significantly improved.” She also stated that she was surprised when Luke reported that
his mother hit him, adding that the parents are “very involved” and that, prior to this,
school personnel had not had other concerns with the family.

When the investigator interviewed Luke, he said that his mother “smacks” him,
and that she has “hit him on his butt with [a] spatula[,]” but he could not remember the
last time either happened. He said that his father also hits him with his hand. Luke’s
sisters told the investigator that sometimes their parents hit them with an open hand, but
each denied having been hit with a spatula. The investigator observed no marks or
bruises on any of the children.

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 The investigator interviewed S.C. and Martin during an unannounced home visit.
S.C. admitted that she has hit the children with an open hand. She denied that she has
used a spatula to strike the children but “admitted that she smacks the spatula on the
counter to get their attention.” Martin admitted to “lightly” spanking his children on
occasion. He denied using objects and denied having seen his wife hit the children with a
spatula. However, he said he has seen his wife hit a spatula on the counter to get the
children’s attention. The investigator added that the home was “fully furnished, clean
and well organized.” Each child had appropriate sleeping arrangements and sufficient
food. The utilities were on and the investigator did not observe any hazards.

The above information in the investigator’s report resulted in the Department’s
classifying the allegations of physical abuse against S.C. as “not established.” That
designation signifies that “there is not a preponderance of the evidence that a child is an
abused or neglected child as defined in N.J.S.A. 9:6-8.21, but evidence indicates that the
child was harmed or was placed at risk of harm.” N.J.A.C. 3A:10-7.3(c)(3).

The Department sent a letter to the children’s school stating that the investigation
was complete and that it had determined no need to provide services to the children. The
Department also sent a letter to S.C., informing her that its investigation into the
allegations was complete and that it had determined that the allegations were “Not
Established.” S.C. was not allowed an administrative appeal opportunity and, apparently,
had no opportunity to review, supplement, or discuss the Department’s investigatory
materials before the decision issued. Thereafter she filed an appeal in the Appellate
Division from the agency action finding the allegations of abuse to be “not established.”

The Appellate Division was unpersuaded that an adjudicatory hearing had to be
provided when an investigation results in a “not established” finding, which it regarded as
“purely investigatory in nature” and which is not disseminated. The Appellate Division
also held that the Department’s “not established” finding in this matter was not arbitrary,
capricious, and unreasonable, pointing to facts that provided “‘some evidence’ indicating
that S.C. hit the children, even without a spatula, when she was upset with their behavior,
leading to the possibility that she could misgauge how much force she was using and put
them at risk of harm.” In a concurring opinion, Judge Messano, P.J.A.D., agreed that the
denial of an administrative hearing to challenge a “not established” finding did not
violate S.C.’s due process rights but wrote separately to express two concerns. First, the
letter the Department sent to S.C. “did nothing but parrot the regulatory language and
advise S.C. of the consequences of the findings”; “the letter fail[ed] to state, even in
conclusory terms, what evidence supported the finding.” Second, the letter’s lack of
information was pertinent because, although due process rights are not violated, a “not
established” finding may have negative consequences in the future because the record is
not subject to expunction.

The Court granted S.C.’s petition for certification. 237 N.J. 165 (2019).
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HELD: The Court reverses and remands (a) 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; and (b) for
S.C. to have an informal opportunity before the Department to rebut and/or supplement
the record before the Department finalizes its finding. The Court does not address the
amici’s challenge to the validity of the “not established” category but 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.

1. When the Department receives an allegation of child abuse or neglect, it must
investigate and determine “whether abuse or neglect has occurred.” N.J.A.C. 3A:10-
7.3(a) to (b). “[T]he Department representative shall make a finding that an allegation is
‘substantiated,’ ‘established,’ ‘not established,’ or ‘unfounded.’” N.J.A.C. 3A:10-7.3(c).
The differentiation among those four categories creates two general classes of findings.
“A finding of either established or substantiated shall constitute a determination . . . that a
child is an abused or neglected child,” while “[a] finding of either not established or
unfounded shall constitute a determination . . . that a child is not an abused or neglected
child.” N.J.A.C. 3A:10-7.3(d). A finding that an allegation is “unfounded” is subject to
expunction. A record containing a “substantiated,” “established,” or “not established”
finding is required to be retained. (pp. 21-25)

2. Prior to 2013, Department investigations could result in one of two findings:
“substantiated” or “unfounded.” The current four-category system took effect in 2013
following robust public input. The Department explained its intent in differentiating
between “not established” and “unfounded” when rejecting a comment that “not
established” findings should be eligible for expunction: “The critical distinction . . . is
that not established findings are based on some evidence, though not necessarily a
preponderance of evidence, that a child was harmed or placed at risk of harm.” And to
prepare for “the investigation of future allegations,” the Department determined that the
“information contained in records of not established cases must be maintained.” For
records the Department retains, confidentiality is the presumptive starting point, but
N.J.S.A. 9:6-8.10a(a) provides for the release of information regarding reports of child
abuse in twenty-two enumerated circumstances, and the Department may consider a “not
established” finding in its child protection and welfare work. (pp. 25-31)

3. When determining the protections due process demands in a given situation, the Court
applies the balancing test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Mathews
recognizes that an evidentiary hearing “is neither a required, nor even the most effective,
method of decisionmaking in all circumstances,” so long as the person whose rights are
affected is given an opportunity to assert his or her claim prior to any administrative
action. Id. at 348-49. Thus, minimally, notice and opportunity to be heard are the
essentials of due process. (pp. 31-33)
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4. Here, S.C. underwent a Department investigation based on an alleged claim that she
engaged in child abuse. An investigation is distinct from an adjudication of facts and
gives rise to a different set of expectations. When a general fact-finding investigation is
being conducted, it is not necessary that the full panoply of judicial procedures be used.
Here, the Appellate Division rightly viewed S.C.’s claimed right to an adjudicatory
hearing through the prism of the Department’s investigatory finding. The Department
has not adjudicated facts or reached any sort of conclusion about what actually occurred
when it applies a “not established” finding; rather, it merely ascribes what functions as a
working label to the evidence collected through investigation. That distinction
substantially lessens any private interest impact that S.C. can claim, and any claimed
private interest is far outweighed by the Department’s legitimate reasons for acting
knowledgeably in future investigations. The Court separately considers S.C.’s interest in
the investigatory finding in connection with the exceptions and disclosures enumerated in
N.J.S.A. 9:6-8.10a. The Court concludes that due process does not compel imposition of
a formalized adversarial trial-type process in the setting of a “not established” finding --
where no child abuse conclusion has been reached. (pp. 33-42)

5. S.C.’s reputational interest can be properly respected without the requirement of a
full-fledged adjudicatory hearing. The essential elements of notice and opportunity to be
heard are what due process protects. In keeping with those essentials, when the
Department is concluding an investigation into suspected child abuse or neglect and
expects to issue a finding of “not established,” notice -- meaningful for due process
considerations -- of that investigatory finding should be provided to the individual. The
notice should include a summary of the support for the finding, and the Department’s
reasoning should be transparently disclosed. Moreover, the individual must be informed
of his or her opportunity to rebut the Department’s conclusion or supplement the record
so that the informal opportunity to be heard before the agency is not illusory. The current
process of not making a record available unless and until an appeal is filed is no
substitute. (pp. 42-44)

6. Here, the conclusory letter that the Department sent to S.C. failed to inform her of the
basis for the Department’s “not established” finding. And there does not appear to be an
adequate means of formally making known to a parent or guardian under investigation
the opportunity to be heard informally and rebut or supplement the record. Corrective
action by the Department in the future can solve that. (p. 44)

7. With respect to the Department’s standard for making a finding of “not established,”
the Court agrees with the criticism that the standard for that finding, as written now, is
vague, amorphous, and incapable of any objective calibration. All that is known is that it
requires less than a preponderance of the evidence and involves “some” evidence. At the
very least, the “some evidence” description advanced by the Department must be
understood to be “credible evidence.” Beyond that one cannot know what the
Department intends by its standard and how it is to be evaluated. The Court leaves to the
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Department the responsibility to reexamine and clarify its standard. No facial challenge
is presented in this matter and the Court will not reach the issue without that. (pp. 44-46)

REVERSED and REMANDED.

JUSTICE ALBIN, concurring in part and dissenting in part, agrees with the
majority that the Department’s “some evidence” standard for making “not established”
determinations is vague and amorphous and has led to shortcomings in fairness for
parents and guardians. However, Justice Albin would go further and strike down the “not
established” category. Justice Albin writes that the Department, in creating a “not
established” category, has exceeded the authority delegated to it by the Legislature. The
“not established” category, in Justice Albin’s view, has allowed the Department to elide
making the determination that the Legislature expects of it -- a determination whether the
allegation is unfounded -- and the Department’s good intentions cannot save a regulation
that undermines the Title Nine expungement statute. Justice Albin would end this case
today and spare S.C. the hardship and expense of a remand because the Department’s
own findings establish that the abuse and neglect allegations in S.C.’s case are
“unfounded,” as defined by the Department’s own regulation.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a separate opinion, concurring in part and dissenting in part.

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 SUPREME COURT OF NEW JERSEY
A-57 September Term 2018
081870

S.C.,

Plaintiff-Appellant,

v.

New Jersey Department of Children and Families,

Defendant-Respondent.

On certification to the Superior Court,
Appellate Division.

Argued Decided
November 18, 2019 May 27, 2020

Victoria D. Miranda argued the cause for appellant
(Williams Law Group, attorneys; Allison Williams, of
counsel and on the brief, and Victoria D. Miranda on
the briefs).

Peter Alvino, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General and Jason W. Rockwell, Assistant
Attorney General, of counsel, and Peter Alvino and
Julie B. Colonna, Deputy Attorney General, on the
briefs).

Melville D. Miller Jr. argued the cause for amicus
curiae Legal Services of New Jersey (Legal Services
of New Jersey, attorneys; Melville D. Miller Jr., Mary
1
 M. McManus-Smith, Jeyanthi C. Rajaraman, Chiori
Kaneko, and Sylvia L. Thomas, on the briefs).

Katherine Haas argued the cause for amicus curiae
American Civil Liberties Union on New Jersey
(American Civil Liberties Union Foundation and Fox
Rothschild, attorneys; Jacob S. Perskie and Victoria T.
Salami, of counsel and on the brief, and Jeanne
LoCicero and Alexander Shalom, on the brief).

Deric Wu Assistant Deputy Public Defender, argued
the cause for amicus curiae Office of Parental
Representation (Joseph E. Krakora, Public Defender,
Office of Parental Representation, attorney; T. Gary
Mitchell, Deputy Public Defender, and Robyn A.
Veasey, Deputy Public Defender, of counsel, and
Deric Wu, of counsel and on the brief).

Jeralyn L. Lawrence argued the cause for amicus
curiae New Jersey State Bar Association (Evelyn
Padin, President, New Jersey State Bar Association,
attorneys; Jeralyn L. Lawrence, Daniel A. Burton,
Thomas J. DeCataldo, Jr., and Ronald G. Lieberman,
on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

The Department of Children and Families (Department) is charged with

the responsibility to investigate all allegations of child abuse or neglect. 1

Pursuant to its operational regulations, the Department’s investigation into

1
Although the Division of Child Protection and Permanency within the
Department performs this responsibility, see N.J.S.A. 9:6-8.11, we refer
throughout to the Department, which is the named defendant-respondent.
2
such allegations can result in one of four possible determinations. An

allegation can be “substantiated,” “established,” “not established,” or

“unfounded.” N.J.A.C. 3A:10-7.3(c). Different consequences flow from those

designations.

This appeal involves the Department’s investigation into a claim that a

mother, S.C., abused her seven-year-old son by engaging in corporal

punishment. The investigation concluded that the claim of abuse was “not

established.” The Department sent a letter informing S.C. of that finding, but

the letter provided little detail and no explanation for that determination.

Because the abuse allegation was deemed “not established,” it is not eligible to

be expunged. The Legislature requires expunction only for child abuse or

neglect allegations determined to be “unfounded,” see N.J.S.A. 9:6-8.40a, and

no statutory or regulatory provision authorizes expunging allegations of the

other three possible determinations. Although the record and report involving

S.C.’s “not established” finding is statutorily confidential, the information can

be made available under circumstances identified by the Legislature in

N.J.S.A. 9:6-8.10a.

S.C. appealed the Department’s action, claiming (1) a deprivation of her

due process rights because she was not afforded a hearing and (2) that the

Department’s “not established” finding was arbitrary and capricious because

3
the record was insufficient to support a finding that her son was harmed. The

Appellate Division’s decision affirmed the Department’s action, with a

concurrence expressing a need for revision in the Department’s processes.

We now reverse and require further action. We remand (a) for the

Department to provide improved notice of the basis on which its investigation

has found some evidence -- which we here stress must be some credible

evidence -- to support the allegation of harm; and (b) for S.C. to have an

informal opportunity before the Department to rebut and/or supplement the

record before the Department finalizes its finding. We reject that due process

considerations require the Department to conduct an adjudicative contested

case proceeding either internally or at the Office of Administrative Law for a

“not established” finding. That said, on the basis of the present record, we

cannot assess whether the “not established” finding in this instance was

arbitrary or capricious.

S.C. has not raised a direct challenge to the validity of having a “not

established” finding category in the Department’s regulations, although some

amici have urged that the category be declared illegitimate and eliminated.

We will not address an argument not raised by appellant, particularly when the

Department advances a facially legitimate basis for such findings’ use and an

argument that the regulation’s promulgation was reasonably within its

4
statutory delegation of authority. However, we recognize problems with the

standard as presently articulated. 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. Our review of this matter brings to light shortcomings in fairness for

parents and guardians involved in investigations that lead to such findings and

which may require appellate review.

I.

A.

The facts are gleaned from the Department’s investigatory file in this

matter. The file, redacted to protect identities and other information required

by law to be kept confidential, was not made available to S.C. until this matter

was appealed to the Appellate Division. 2

2
This is the procedure presently used by the Department. The Department
stated at oral argument that the investigative summary report is first revealed
to the family on appeal, at the latest, when the statement of items comprising
the record on appeal is filed. The only source of information concerning a
Department investigation a parent has prior to an appeal is through discussion
with a case worker during the investigation itself when information is collected
or through a discussion with the Department, if the parents so choose, under
N.J.S.A. 9:6-8.10a(b)(19) (allowing release of information “only to the extent
necessary” for parents to discuss Department “services,” to participate in “case
plan” development or implementation, or “to understand the basis for the
[D]epartment’s involvement”). After parents receive a letter from the
Department reporting the agency’s findings, their recourse is appellate review.

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 On May 4, 2016, the Department received a report of suspected child

abuse from an education official in a school district. The abuse allegedly

concerned one of S.C.’s triplets. The reporting source informed the

Department that S.C.’s son, Luke, 3 “disclosed that his mother hits him.”

According to the reporter, the information was revealed when Luke “refused to

make his mother a Mother’s Day card and stated that he hated her.” Luke then

said a number of other things: that his mother hits his “face, stomach, and

buttocks,” and that “one time his buttocks was as red as a fire truck”; that his

mother hits him with an open hand and with a spatula; and that the last time

S.C. hit him was two days prior, when he refused to shower. He also “stated

that one time he said that it didn’t hurt when he was hit so he got hit again.”

When Luke’s noncompliant behavior in school was noted by a school

official, and a report of alleged abuse was relayed to the Department, Luke and

his sisters were within days of turning eight years old. Luke was a special

needs student, classified as emotionally disturbed. Although Luke had been

challenged by behavioral issues in the past (while in kindergarten, he had

ripped down a shelf holding a TV monitor), according to his education case

manager, he was doing much better.

3
Pseudonyms are used to protect the family’s confidentiality.

6
 The day after the alleged abuse was reported, a Department investigator

interviewed Luke, his sisters, S.C., and her husband (Martin). The investigator

also visited the children’s school.

The education case manager reiterated the allegations detailed in the

report from the previous day and added that S.C. and her husband “always

attend child study team meetings” and that “[t]he school had no other concerns

regarding the family.” Similarly, the children’s principal told the investigator

that on the day that Luke made the allegation the boy was having a bad week,

which was unusual for him. Although he had behavioral problems in the past,

she said that Luke had “significantly improved.” She also stated that she was

surprised when Luke reported that his mother hit him, adding that the parents

are “very involved” and that, prior to this, school personnel had not had other

concerns with the family.

When the investigator interviewed Luke, he told the investigator that he

understood the difference between a truth and a lie. With respect to his

mother, Luke stated that she counts “1, 2, 3” “a lot.” When asked what

happens when his mother gets to three, he responded, “It’s inappropriate.” In

particular, he told the investigator that his mother “smacks” him, and that she

has “hit him on his butt with [a] spatula[,]” but he could not remember the last

time either happened. Luke said that the smacks “kind of hurt[]” but he also

7
thinks it is funny. He said that his father also hits him with his hand. During

the interview, he reported that he has been hit on the leg and butt but denied

ever being hit in the face. According to the investigator, Luke “appeared to be

clean and well kept,” and the investigator did not observe any marks or bruises

on the boy.

Luke’s sisters told the investigator that sometimes their parents hit them

with an open hand, but each denied having been hit with a spatula. Both

denied being fearful of either parent, and the investigator observed no marks or

bruises on either girl.

The investigator interviewed Luke’s parents in an unannounced home

visit. According to the investigator, Martin was initially “hesitant” to let her

inside their home. When told by the investigator why she was there, “he

responded that it is legal to hit children.” Each parent was interviewed

separately.

S.C. admitted to the investigator that she has hit the children with an

open hand. When having to correct the triplets’ behavior, she said that “she

threatens the children and then does not follow through.” She explained that

the children were getting too old for timeouts to be meaningful to correct poor

behavior. She denied that she has used a spatula to strike the children but

“admitted that she smacks the spatula on the counter to get their attention.”

8
S.C. also said that her husband hits the children occasionally. Finally, she

reported that it is “challenging at times” to discipline the triplets but that “she

will stick to sending the children to their rooms and removing privileges.” She

also told the investigator that she was endeavoring to have Luke’s classified

status removed.

Martin admitted to “lightly” spanking his children on occasion. He

denied using objects and denied having seen his wife hit the children with a

spatula. However, he said he has seen his wife hit a spatula on the counter to

get the children’s attention.

The investigator added that the home was “fully furnished, clean and

well organized.” Each child had appropriate sleeping arrangements and

sufficient food. The utilities were on and the investigator did not observe any

hazards.

The above information in the investigator’s report resulted in the

Department’s classifying the allegations of physical abuse against S.C. as “not

established.” That designation signifies that “there is not a preponderance of

the evidence that a child is an abused or neglected child as defined in N.J.S.A.

9:6-8.21, but evidence indicates that the child was harmed or was placed at

risk of harm.” N.J.A.C. 3A:10-7.3(c)(3). The allegations against S.C. were

9
not reported to the prosecutor’s office. Cf. N.J.S.A. 9:6-8.10a(e)

(“substantiated” findings must be forwarded to law enforcement).

On May 25, 2016, the Department sent a letter to the children’s school

stating that the investigation was complete and that it had determined no need

to provide services to the children. The same day, the Department sent a letter

to S.C., informing her that its investigation into the allegations was complete

and that it had determined that the allegations were “Not Established.”4 The

letter stated in full:

New Jersey law, as set forth in N.J.S.A. 9:6-8.11,
requires the Department of Children and Families
(DCF) Division of Child Protection and Permanency
(CP&P) to investigate all allegations of child abuse and
neglect. On May 4, 2016 the Division’s Bergen Central
Local Office received an allegation that [Luke and his
sisters] were abused.

CP&P conducted its required investigation and
determined that the allegation was Not Established. A
record of the incident will be maintained in CP&P files.
Current law provides that this information may not be
disclosed by the Division except as permitted by
N.J.S.A. 9:6-8.10a. A finding of Not Established is not
subject to an administrative appeal.

Pursuant to N.J.A.C. 10:129-7.3c(3), the Division
enters a finding of “Not Established” when some
evidence indicates that a child was harmed or placed at

4
The Department sent another letter, as required by N.J.A.C. 3A:10-7.8(a),
notifying S.C. that it would not be providing services to the children.
10
 some risk of harm, but there is not a preponderance of
evidence that the child has been abused or neglected per
N.J.S.A. 9:6-8.21.

The Division will not be providing further services to
[the children] and your family.

S.C. was not allowed an administrative appeal opportunity and,

apparently, had no opportunity to review, supplement, or discuss the

Department’s investigatory materials before the decision issued. Thereafter,

on July 8, 2016, she filed an appeal in the Appellate Division from the agency

action finding the allegations of abuse to be “not established.”

B.

On appeal, S.C. argued that the finding of “not established” was

arbitrary, capricious, and unreasonable because the record was insufficient to

find the child was harmed and that her inability to challenge the Department’s

“investigatory finding through the administrative process” violated her due

process rights. The Appellate Division rejected both arguments and affirmed

the Department’s determination.

The Appellate Division acknowledged that the Department’s rules grant

an administrative hearing only when finding that an abuse or neglect allegation

is “substantiated” and was unpersuaded that an adjudicatory hearing had to be

provided when an investigation results in a “not established” finding. The

11
Appellate Division regarded the “not established” finding as “purely

investigatory in nature,” explaining that “[a]n investigator simply interviews

witnesses and examines other available evidence, reviews and analyzes this

information and makes a recommendation as to whether any action should be

taken against the subject of the investigation,” adding, “[t]here is no definitive

finding as to the truth of the allegations by a disinterested, impartial third

party.”

Further, because a record of a “not established” finding is not

disseminated, the court determined that the finding “does not impugn S.C.’s

reputational or privacy interests to an extent that would trigger the need for an

adjudicatory hearing.” The court reviewed how “not established” findings are

“not made public, the accused’s name is not included in the Central Registry[,]

and the finding is not disclosed in connection with a Child Abuse Record

Information (CARI) check.” (citing N.J.A.C. 3A:10-7.7). Although the

Department retains and uses records from an incident deemed “not

established,” the court did not find a protectible due process interest violated

when the “information [was] kept for the use of the agency and entities

involved in the protection of children.” The Appellate Division distinguished

this case from the facts in Department of Children & Families v. R.R., 454 N.J.

Super. 37, 43 (App. Div. 2018), and rejected dictum in that case about how “a

12
‘not established’ finding ‘is not what it seems’ and ‘still permanently tars a

parent with a finding that there was something to the allegation.’”

The Appellate Division also held that the Department’s “not established”

finding in this matter was not arbitrary, capricious, and unreasonable. The

Appellate Division pointed to the following facts: “Luke told school officials

his mother hit him with a spatula as well as with an open hand”; Luke

“repeated those allegations the following day to the [Department]

investigator”; Luke’s allegation that S.C. struck him with an open hand on his

buttocks and legs was corroborated by Luke’s father, sisters, and even S.C.;

even though Luke was classified as emotionally disturbed, “neither school

officials nor Luke’s family suggested Luke was prone to making things up”;

although Luke “had significant behavioral problems in kindergarten,” his

behavior had improved; S.C. “acknowledged she hit Luke and his sisters with

an open hand” and “admitted to slapping the spatula on her kitchen counter to

get the triplets’ attention and ‘threatening them’ but ‘not following through’”;

S.C. “admitted she found [the children’s] behavior ‘challenging at times’” and

“expressed her frustration at the ineffectiveness of timeouts and the

withholding of privileges in moderating their behavior”; and “Luke’s principal

reported that Luke claimed that once when he got hit, he said it did not hurt, so

he got hit again.” The Appellate Division concluded that “those facts provide

13
‘some evidence’ indicating that S.C. hit the children, even without a spatula,

when she was upset with their behavior, leading to the possibility that she

could misgauge how much force she was using and put them at risk of harm.”

In a concurring opinion, Judge Messano, P.J.A.D., agreed that the denial

of an administrative hearing to challenge a “not established” finding did not

violate S.C.’s due process rights but wrote separately to express two concerns.

First, Judge Messano noted that he was “only convinced there is ‘some

evidence’ to support the finding in this case because of [the court’s] extensive

review of the record.” The letter sent to S.C. “did nothing but parrot the

regulatory language and advise S.C. of the consequences of the findings”; “the

letter fail[ed] to state, even in conclusory terms, what evidence supported the

finding.”

The concurrence faulted the letter for another reason. Quoting from the

Department’s own statement when creating a four-tier system of possible

findings, having four categories was intended to “allow[] the investigative

findings and records to better reflect the circumstances of an investigation.”

(internal quotation marks omitted) (quoting 44 N.J.R. 357(a) (Feb. 21, 2012)).

According to the concurrence, here the letter reporting the Department’s

findings “hardly reflected ‘the circumstances of the investigation,’ nor did it

‘reflect the nature’ of the investigator’s’ ‘conclusions’ about S.C.’s conduct.”

14
 That lack of information was pertinent, said the concurring judge,

because although due process rights are not violated, a “not established”

finding may have negative consequences in the future because the record is not

subject to expunction. A “not established” finding allows the Department to

retain the record, which in turn “allow[s] the [Department] to have a better and

more comprehensive understanding of a family should additional referrals be

received by the [Department] in the future.” Notably, the record is also

“subject to disclosure in a host of situations,” and “the records of ‘not

established’ referrals live on forever within the [Department].” (quoting 44

N.J.R. 357(a)). The concurrence stressed the need for the Department to

accurately express “findings and conclusions in sufficient detail.” According

to the concurring judge, a remand for a more specific letter explanation of the

results of the investigation was not necessary because here there was “no

required dissemination to third parties” of the Department’s finding.

We granted S.C.’s petition for certification. 237 N.J. 165 (2019).

Thereafter, we granted amicus curiae status to the American Civil Liberties

Union (ACLU), Legal Services of New Jersey (LSNJ), the Office of Parental

Representation of the Office of the Public Defender (OPR), and the New

Jersey State Bar Association (NJSBA).

15
 II.

A.

1.

S.C. argues that the Appellate Division erred in affirming the

investigative finding of “not established” because there was no evidence that

the children were injured or suffered impairment. S.C.’s admission that she

occasionally spanked the children with an open hand in the past, she contends,

cannot provide evidence of harm or risk of harm. A finding that children are

placed at risk of harm from an open-handed spank “permits the [Department]

to find that any time a parent exercises their constitutional right to parent a

child and use autonomy in determining discipline, they have to be concerned

that they will be branded as a parent who places their children at risk of harm.”

She further contends that Luke’s statement that S.C. hit him with a spatula was

uncorroborated. None of the children had marks or bruises on their bodies or

reported experiencing any lasting pain. Therefore, she asserts that the

Department’s finding that the children were placed at harm or risk of harm was

arbitrary and capricious.

As she argued below, S.C. also contends that her due process rights were

violated when the Department entered an administrative finding of “not

established” with no opportunity to challenge the evidence that was relied

16
upon. S.C. argues that the Department “impugns a parent permanently with a

finding that they have harmed or placed their child at risk of harm,” which

should trigger a due process right to a hearing. She emphasizes that records of

a “not established” finding are retained by the Department and argues that it

may be used against her in several other settings, including as an aggravating

factor to demonstrate a pattern of abuse or neglect if ever there were a later

investigation of the family.

Finally, S.C. argues that the Department’s letter itself failed due process

requirements. It failed to provide any meaningful explanation of the evidence

relied upon by the Department when making its finding. The lack of factual

findings also inhibits judicial review to which she is entitled as of right.

2.

The Department argues that the creation of an investigatory finding

category of “not established” is consistent with its broad statutory authority

and responsibility under Title Nine. The Department points to its obligation to

investigate every incident and prepare a report on its findings. The “not

established” finding enables investigators “to accurately reflect the nature of

their conclusions” even when it finds no statutory abuse, but finds harm caused

to the child. It maintains that “retention of Department records where some

evidence indicates a child has been harmed or placed at risk of harm” is

17
important to the fulfillment of its mission. The “not established” finding and

the record retained as a result of that finding assist the Department in the

performance of its investigatory task by recording the concern raised by the

investigation and, thus, allowing the Department to better assess future alleged

incidents.

The Department disagrees that the records may be released in many

circumstances. It asserts that “investigations are confidential and may only be

disclosed for limited purposes specified by statute,” which the Department

reviewed and explained. Moreover, it contends that the rules of evidence

further limit the ability of a “not established” finding to be admitted or given

weight in any subsequent action without opportunity to be heard at that time.

The Department disputes that under a due process analysis S.C. is

entitled to an administrative hearing for the “not established” finding. It notes

that the Appellate Division has never required an administrative hearing for

other such investigatory findings. The Department emphasizes that “no

conclusion has been drawn that S.C. did anything harmful to her children, the

information at issue has not been publicly disseminated, and she has been

given the opportunity to explain her position in the course of the

[Department’s] investigation.” The Department adds that its “not established”

18
finding is ill suited to resolution in a disputed trial-type hearing because it is

not based on adjudicated facts.

Finally, the Department argues that were a trial-type hearing to be

required for every “not established” finding, the number of proceedings to be

transmitted to the Office of Administrative Law would be overwhelming. Out

of 87,574 investigations, 62,514 resulted in “not established” findings. The

Department claims the State’s interest in not having over 60,000 new

administrative hearings is significant.

B.

The amici support S.C. on the outcome in this matter. They add to her

arguments in favor of reversing the Appellate Division’s affirmance of the

Department’s action.

1.

The ACLU contends that a person enjoys a right to due process

protection of reputation without having to show tangible loss. It asserts that

because a “not established” finding may be disclosed to government agencies,

individuals, employers, as well as others during a background check, such a

finding implicates a person’s reputation and, thus, her liberty interests. The

Department may also use the finding as evidence in subsequent investigations

involving the family. Thus, the ACLU notes that although people have a right

19
to appeal agency decisions to the Appellate Division, the resulting decision is

subject to the factual and credibility determinations of the agency, which a

person has no ability to refute. Regarding the present matter, the ACLU

asserts that it is unclear which, if any, of Luke’s claims the Department found

credible and that an administrative hearing would clarify the basis for the

Department’s finding.

2.

OPR agrees with S.C. that a “not established” finding is an adjudicatory

finding that requires a hearing. OPR adds that “not established” findings are

maintained in the child abuse registry records in perpetuity and may be

disclosed or relied upon in a variety of circumstances and, therefore, require

due process protection. Because of the reputational interest at stake in this

case, OPR contends that an administrative hearing is required.

3.

NJSBA’s position is that the standard for “not established” findings is

“amorphous,” leads to arbitrary and capricious results, and should be

eliminated as a possible outcome to a Department investigation.

It argues that it is not clear what burden of proof a “not established”

finding requires, other than that it is less than a preponderance of the evidence.

Thus, “there is no objective or measurable standard to differentiate between

20
findings of ‘not established,’ and findings of ‘unfounded.’” NJSBA also

asserts that a “not established” finding, based on a mere investigation, may

interfere with parental rights and tarnish a parent’s reputation in many

potential settings, including, for example, in custody litigation where

Department findings may be improperly used “as a sword” to affect a spouse’s

parental rights.

4.

LSNJ argues that, in addition to the statutory means for disclosing “not

established” findings, other disclosures are possible, and, therefore, the subject

of an investigation resulting in such a finding must receive due process

protections. LSNJ further argues that state statutes, legislative and regulatory

history, prior litigation, and federal law “combine to invalidate the current

regulatory” framework that uses a four-tier scheme and “compel a binary

system” of possible investigatory conclusions.

III.

A.

Declaring the safety of children to be of paramount concern, the

Legislature enacted an extensive set of laws designed to protect children under

the age of eighteen from “serious injury inflicted upon them by other than

accidental means.” N.J.S.A. 9:6-8.8(a). Codified as Title Nine, the legislation

21
imposes on the Department the broad responsibility to investigate allegations

of child abuse and neglect and to take immediate action as “necessary to insure

the safety of the child.” N.J.S.A. 9:6-8.11.

Complementing regulations govern the Department’s investigations into

allegations of abuse and neglect. See N.J.A.C. 3A:10-1.1 to -8.5. The

regulations detail how the Department will conduct its evaluative investigatory

task. Whenever the Department receives an allegation, complaint, or report of

child abuse or neglect, it must investigate and determine within a set

timeframe “whether abuse or neglect has occurred.” N.J.A.C. 3A:10-7.3(a) to

(b). Pertinent to this appeal, N.J.A.C. 3A:10-7.3(c) requires the Department to

render one of four possible findings at the conclusion of each investigation .

For each allegation, the Department representative
shall make a finding that an allegation is
“substantiated,” “established,” “not established,” or
“unfounded.”

1. An allegation shall be “substantiated” if the
preponderance of the evidence indicates that a child is
an “abused or neglected child” as defined in N.J.S.A.
9:6-8.21 and either the investigation indicates the
existence of any of the circumstances in N.J.A.C.
3A:10-7.4 or substantiation is warranted based on
consideration of the aggravating and mitigating factors
listed in N.J.A.C. 3A:10-7.5.

2. An allegation shall be “established” if the
preponderance of the evidence indicates that a child is

22
 an “abused or neglected child” as defined in N.J.S.A.
9:6-8.21, but the act or acts committed or omitted do
not warrant a finding of “substantiated” as defined in
(c)1 above.

3. An allegation shall be “not established” if there is
not a preponderance of the evidence that a child is an
abused or neglected child as defined in N.J.S.A. 9:6-
8.21, but evidence indicates that the child was harmed
or was placed at risk of harm.

4. An allegation shall be “unfounded” if there is not a
preponderance of the evidence indicating that a child is
an abused or neglected child as defined in N.J.S.A. 9:6-
8.21, and the evidence indicates that a child was not
harmed or placed at risk of harm.

[N.J.A.C. 3A:10-7.3(c).]

That differentiation creates two general classes of findings, which break

down on the basis of whether a finding that a child is an “abused or neglected

child,” under the statutory definition of that term,5 can be made based on a

5
The definition of an abused or neglected child in pertinent part includes

a child . . . whose parent or guardian . . . (1) inflicts or
allows to be inflicted upon such child physical injury
by other than accidental means which causes or creates
a substantial risk of death, or serious or protracted
disfigurement . . . ; (2) creates or allows to be created a
substantial or ongoing risk of physical injury to such
child by other than accidental means . . . (4) or a child
whose physical, mental, or emotional condition has
been impaired or is in imminent danger of becoming
impaired as the result of the failure of his parent or
23
preponderance of the evidence. That basic schematic design is captured in the

regulation itself:

(d) A finding of either established or substantiated shall
constitute a determination by the Department that a
child is an abused or neglected child pursuant to
N.J.S.A. 9:6–8.21. A finding of either not established
or unfounded shall constitute a determination by the
Department that a child is not an abused or neglected
child pursuant to N.J.S.A. 9:6–8.21.

[N.J.A.C. 3A:10-7.3(d).]

The regulations further provide that a finding that a report, complaint, or

allegation of an incident of child abuse or neglect is “unfounded” is subject to

expunction, as dictated by N.J.SA. 9:6-8.40a(a). See N.J.A.C. 3A:10-7.7(b).

The Department has defined what “unfounded” means in the context of an

investigation and has established a process for determining when such report,

complaint, or allegation is deemed “unfounded,” again as it was required to do

under N.J.S.A. 9:6-8.40a(b). The administrative regulations codified at

N.J.A.C. 3A:10-8.1 to -8.4 lay out the standards and procedure for expunction

guardian, . . . by unreasonably inflicting or allowing to
be inflicted harm, or substantial risk thereof, including
the infliction of excessive corporal punishment; or by
any other acts of a similarly serious nature requiring the
aid of the court.

[N.J.S.A. 9:6-8.21(c).]

24
of records. Notably, a record containing a “substantiated,” “established,” or

“not established” finding is required to be retained, as specified in N.J.A.C.

3A:10-8.1(b).

Those are the basic provisions of the statutory and administrative

scheme in which the present appeal arises.

B.

In order to fully appreciate the parties’ positions on the due process

challenge raised in this matter, it is helpful to know a little about the

regulatory background to the current “not established” finding that is possible

under the present four-tier system of potential investigatory findings.

Briefly, we note that, although Department regulations providing for

categories of findings in child abuse investigations have changed over time,

immediately prior to 2013, Department investigations could result in one of

two findings: “substantiated” or “unfounded.” See 45 N.J.R. 738(a) (Apr. 1,

2013); 44 N.J.R. 357(a). The current four-category system took effect in 2013

following robust public input through rule comment and adoption proceedings,

as the Department and others have set forth in their briefing.6 The Department

6
See 45 N.J.R. 738(a); 44 N.J.R. 2437(a) (Nov. 5, 2012). Some commenters
urged return to a framework similar to the three-category system, which
between 1995 and 2005 had included the additional category of
“unsubstantiated”; some others strenuously argued for retaining the two -
25
asserted that adopting the present four categories of investigatory findings

would “assist in fulfilling [its] commitment” to “protecting children from

harm,” while clearly differentiating “between what is abuse and neglect and

what is not abuse and neglect.” See 45 N.J.R. 738(a), responses to comments

46, 47, 48, 81, and 82. In the regulatory record for the current regulations, the

Department explained that its new scheme avoided shortcomings perceived in

a former “not substantiated” category eliminated in 2005.

An inherent failing of the three tier findings structure
utilized by the Department . . . was that the “not
substantiated” finding provided a means by which a
determination of the occurrence of abuse or neglect’s
occurrence could be avoided. . . . Findings of
“substantiated” and “established” require that a
preponderance of evidence supports a finding that
abuse or neglect did occur; findings of “not
established” and “unfounded” require determination
that there is insufficient or no evidence that abuse or
neglect occurred. This is consistent with the
Department’s prior rationale for the elimination of the
“not substantiated” finding.

[Id. at response to comment 77.]

finding framework. See 45 N.J.R. 738(a), comments 9, 27, 45, 46, 47, 48, 49,
77, 81, and 82.

S.C. acknowledges that she did not advance a facial challenge to the
regulatory category of “not established” applied in her investigation, unlike
some amici who now argue that the category is invalid and should be
eliminated. We will not be addressing that issue, which appellant has not
raised. That said, we include reference to the Department’s explanation of the
purpose of the “not established” finding in the four-category system it adopted.
26
 Further, the Department explained its intent in differentiating between

“not established” and “unfounded” when responding to, and rejecting, a

comment that “not established” findings should be eligible for expunction

under N.J.A.C. 10:129-7.7(b), presently codified at N.J.A.C. 3A:10-8.1.

The critical distinction between findings of not
established and unfounded is that not established
findings are based on some evidence, though not
necessarily a preponderance of evidence, that a child
was harmed or placed at risk of harm. Because the
investigation of future allegations must include
consideration of past incidents in which an involved
child was harmed or placed at risk of harm, the critical
information contained in records of not established
cases must be maintained.

[Id. at response to comment 86. 7]

7
According to the Department in its argument to this Court, its choice to
retain and, for child protection purposes, use records from investigations
resulting in “not established” findings is permissible under federal law, citing
the Child Abuse Prevention and Treatment Act (CAPTA). CAPTA requires a
state child protective services system that receives federal monies under 42
U.S.C. § 5106a(a) to include procedures to

facilitate the prompt expungement of any records that
are accessible to the general public or are used for
purposes of employment or other background checks in
cases determined to be unsubstantiated or false, except
that nothing in this section shall prevent State child
protective services agencies from keeping information
on unsubstantiated reports in their casework files to
assist in future risk and safety assessment.

[42 U.S.C. § 5106a(b)(2)(B)(xii).]
27
 C.

For records the Department retains, confidentiality is the presumptive

starting point, but the same provision of Title Nine also provides for the

release of information regarding reports of child abuse in certain

circumstances. N.J.S.A. 9:6-8.10a(a) provides in pertinent part:

All records of child abuse reports made pursuant to
[N.J.S.A. 9:6-8.10], all information obtained by the
Department of Children and Families in investigating
such reports including reports received pursuant to
[N.J.S.A. 9:6-8.40], and all reports of findings
forwarded to the child abuse registry pursuant to
[N.J.S.A. 9:6-8.11] shall be kept confidential and may
be disclosed only under the circumstances expressly
authorized under subsections b., c., d., e., f., and g.
herein. The department shall disclose information only
as authorized under subsections b., c., d., e., f., and g.
of this section that is relevant to the purpose for which

See also Children’s Bureau, U.S. Dep’t of Health & Human Servs. (DHHS),
Disclosure of Confidential Child Abuse and Neglect Records (June 2017),
https://www.childwelfare.gov/pubPDFs/confide.pdf. That 2017 Report,
published through DHHS’s website, states,

[s]tate child protective services agencies are required to
maintain records of the reports of suspected child abuse
and neglect that they receive. These reports include
identifying information about the child, the child’s
family, conditions in the child’s home environment, the
nature and extent of the child’s injuries, and
information about other children in the same
environment

[Id. at 1 (emphasis added).]

28
 the information is required, provided, however, that
nothing may be disclosed which would likely endanger
the life, safety, or physical or emotional well-being of
a child or the life or safety of any other person or which
may compromise the integrity of a department
investigation or a civil or criminal investigation or
judicial proceeding.

[N.J.S.A. 9:6-8.10a(a).]

Further details in Department regulations specify that in a CARI check,

only “substantiated” findings are released. N.J.A.C. 3A:10-7.7(a).

“Unfounded” findings are expunged, generally within three years, see N.J.A.C.

3A:10-8.2; and, as noted, the Department retains the findings and record for

investigations leading to any other conclusion, N.J.A.C. 3A:10-8.1(b), subject

to the statutory direction that it be “kept confidential and may be disclosed

only [as authorized] under” the statutory enumerated circumstances, N.J.S.A.

9:6-8.10a(a). The list is extensive, twenty-two in number, but in this matter

the Department categorized the types of exceptions or allowed disclosure as

follows:

• Seven of the disclosures address a government agency’s need to
access the information urgently. N.J.S.A. 9:6-8.10a(b)(1), (b)(2),
(b)(3), (b)(4), (b)(7), (b)(15), and (b)(20).

• Two exceptions concern the release of information to a court or
other tribunal, wherein the fact finder reviews the information in
camera to determine its admissibility in a proceeding. N.J.S.A.
9:6-8.10a(b)(6) and (b)(14).

29
 • Two exceptions concern CARI checks and the release of
information to day care organizations and other entities required
by statute to consider child abuse investigations. N.J.S.A. 9:6-
8.10a(b)(10) and (b)(13). Those two exceptions apply only when a
finding of abuse or neglect is “substantiated.”

• Three exceptions concern the release of information to parents
themselves, or their legal counsel, during a discussion with the
Department about the investigation or during an appeal of the
Department’s actions. N.J.S.A. 9:6-8.10a(b)(12), (b)(17), and
(b)(19). Under N.J.S.A. 9:6-8.10a(b)(19), the Department can
discuss with a parent the reasons for its involvement with the
family.

• Three exceptions concern the Department’s ability to release
information to service providers or proposed caretakers that need
to know details about a child’s history. N.J.S.A. 9:6-8.10a(b)(5),
(b)(11), (b)(16), and (b)(23).

• Three exceptions concern the release of information to government
agencies that study child protection issues and make policy
recommendations. N.J.S.A. 9:6-8.10a(b)(8), (b)(21), and (b)(22).
In such contexts, identifying information is concealed.

• One exception allows release of information about the disposition
of the investigation to the person that made the referral. N.J.S.A.
9:6-8.10a(b)(18).

In addition to the enumerated exceptions in N.J.S.A. 9:6-8.10a, a “not

established” finding also may be considered by the Department in its child

protection and welfare work. For example, it may be considered in the

analysis of a person’s suitability for providing “kinship care.” N.J.A.C.

3A:51-2.1(e); see also N.J.A.C. 3A:10-7.5(a)(6) (factors to be considered when

determining a finding of “substantiated” or “established” include “[e]vidence

30
suggesting a repetition or pattern of abuse or neglect,” thus allowing use of

information from a “not established” finding). According to the Department

when promulgating its current regulations, a “not established” finding is not

used by the Department as an aggravating factor for a subsequent finding of

“substantiated” child abuse or neglect. 45 N.J.R. 738(a) (response to comment

31); see N.J.A.C. 3A:10-7.4(a) (listing required findings for “substantiated”).

IV.

A.

The Fourteenth Amendment of the United States Constitution ensures

that “no State shall ‘deprive any person of life, liberty, or property without due

process of law.’” Jamgochian v. State Parole Bd., 196 N.J. 222, 239 (2008)

(quoting U.S. Const. amend. XIV, § 1). The New Jersey Constitution does not

use the same language, but Article I, Paragraph 1’s language -- providing that

every person possesses the “unalienable rights” to enjoy life, liberty, and

property, and to pursue happiness -- is construed as a “fundamental guarantee

of due process.” Ibid.; Lewis v. Harris, 188 N.J. 415, 442 (2006)).

Due process rights are implicated “whenever an individual risks

governmental exposure to a ‘grievous loss.’” State in Interest of D.G.W., 70

N.J. 488, 501 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)

(quoting, in turn, Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.

31
123, 168 (1951) (Frankfurter, J., concurring))). Such an analysis requires first

a determination that due process applies and then what process is due. Ibid.

(citing Morrissey, 408 U.S. at 481; Avant v. Clifford, 67 N.J. 496, 518-22

(1975)). It long ago became a recognized truism to declare that due process is

flexible. See Morrissey, 408 U.S. at 481. But,

[t]o say that the concept of due process is flexible does
not mean that judges are at large to apply it to any and
all relationships. Its flexibility is in its scope once it
has been determined that some process is due; it is a
recognition that not all situations calling for procedural
safeguards call for the same kind of procedure.

[Ibid.]

When determining the protections due process demands in a given

situation, there must occur an identification and then balancing of the “nature

of the government function involved as well as . . . the private interest . . .

affected by governmental action.” D.G.W., 70 N.J. at 502 (first ellipsis in

original) (quoting Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886,

895 (1961)). We apply the balancing test from Mathews v. Eldridge, 424 U.S.

319 (1976), to do that. Jamgochian, 196 N.J. at 240. That test examines,

[f]irst, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute safeguards; and finally, the Government’s
interest, including the function involved and the fiscal

32
 and administrative burdens that the additional or
substitute procedural requirement would entail.

[Ibid. (quoting Mathews, 424 U.S. at 335).]

Mathews recognizes that an evidentiary hearing “is neither a required, nor

even the most effective, method of decisionmaking in all circumstances,” so

long as the person whose rights are affected is given an opportunity to assert

his or her claim prior to any administrative action. 424 U.S. at 348-49. Thus,

minimally, notice and opportunity to be heard are the essentials of due process.

B.

S.C. claims a violation of her due process rights because she was not

afforded an adjudicatory hearing on the “not established” determination from

her investigation. And she claims that the letter notifying her of the

Department’s findings separately failed due process considerations. We

examine first the precise interest asserted.

1.

S.C. underwent a Department investigation based on an alleged claim

that she engaged in child abuse. An investigation is distinct from an

adjudication of facts and gives rise to a different set of expectations. That is a

distinction well recognized as a general concept, see Hannah v. Larche, 363

U.S. 420, 440-41 (1960), and in the specific context of a Department

investigation.
33
 In Hannah, the Supreme Court held that the requirements of due process

are different for adjudications of facts versus an investigation. As the United

States Supreme Court explained,

when governmental agencies adjudicate or make
binding determinations which directly affect the legal
rights of individuals, it is imperative that those agencies
use the procedures which have traditionally been
associated with the judicial process. On the other hand,
when governmental action does not partake of an
adjudication, as for example, when a general fact-
finding investigation is being conducted, it is not
necessary that the full panoply of judicial procedures
be used.

[Id. at 442.]

See also Jenkins v. McKeithen, 395 U.S. 411, 427 (1969) (reaffirming

Hannah’s distinction between adjudicatory and investigative action by a public

entity).

With respect to the context of the present matter, in New Jersey, courts

have recognized a finding by the Department of “not established” -- like the

earlier finding of “unsubstantiated” -- to be an investigatory action and not an

adjudication.

Twenty years ago, in In re R.P., the Appellate Division held that “[a]

finding by [the Department] that child abuse charges have not been

substantiated, but that there is some indication a child was harmed or placed at

34
risk of harm, is purely investigatory in nature.” 333 N.J. Super. 105, 117

(App. Div. 2000). The R.P. court explained that “there has been no

determination of the accuracy” of the findings, ibid., rather, the investigation

consists of interviews and “other available evidence” followed by a review and

analysis of the information, id. at 116-17. The investigator concludes with a

“recommendation as to whether any action should be taken against the subject

of the investigation.” Ibid. The issue in R.P. concerned the transmittal of a

finding of “unsubstantiated” to an educational entity, and in that context, the

court required the Department to correct its practice, cautioning that “parties to

whom the finding is disseminated” should be informed that there has “not been

any adjudication of those allegations.” Ibid.

The Department’s role as the statutory investigator of allegations of

child abuse and neglect cannot be disputed and has been acknowledged in a

variety of settings. See, e.g., G.S. v. DYFS, 157 N.J. 161, 169-70 (1999)

(referring to DYFS’s “investigative responsibilities”); In re A.I., 393 N.J.

Super. 114, 119, 123 (App. Div. 2007) (analyzing “the issuance of letters

embodying findings by the Institutional Abuse Investigation Unit of the

Department of Human Services”); In re L.R., 321 N.J. Super. 444, 452 (App.

Div. 1999) (“DYFS has been granted broad authority to investigate child abuse

allegations, including specific authority to investigate any child abuse

35
allegation against a public school teacher and to report its findings to the

teacher’s employer.” (emphases added) (citing N.J.S.A. 18A:6-7a)).

More recently, the Appellate Division specifically recognized a

Department finding that a report of child abuse was “not established” to be

merely an investigatory determination when analyzing a due process argument.

In Department of Children & Families v. D.B., two teachers were

accused of harming two different students. 443 N.J. Super. 431, 433-34 (App.

Div. 2015). Subsequent investigations led the Institutional Abuse

Investigation Unit (IAIU) of the Department to enter “not established”

findings. Id. at 434. The teachers each received a letter memorializing those

findings. Ibid. The teachers subsequently sought “to have the Department’s

findings letter changed from ‘not established’ to ‘unfounded.’” Ibid. The

teachers also contended that the Department’s finding that the child in each

case “‘was harmed or placed at risk of harm’ constitute[d] an adjudication an d

not a mere investigatory finding,” such that the appellants were entitled to an

adjudicatory hearing. Id. at 440.

In a consolidated opinion, the Appellate Division affirmed the “not

established” finding and rejected the argument that an adjudicatory hearing

was required for that investigatory finding, but reversed and remanded for the

Department to issue new letters that revealed more information about the

36
investigation. Id. at 434, 446-47. The Appellate Division held that the

“notification-of-findings process” itself did not constitute a violation of due

process and further held that the teachers were not entitled to an adjudicatory

hearing to challenge the “not established” finding because such finding is

purely investigatory. Id. at 443-44 (relying on Dep’t of Children & Families v.

S.P., 402 N.J. Super. 255, 270 (App. Div. 2008) (holding that a teacher was

“not entitled to an adjudicatory hearing to challenge a finding that child abuse

allegations are not substantiated”)).8

2.

In the appeal before us, the Appellate Division rightly viewed S.C.’s

claimed right to an adjudicatory hearing through the prism of the Department’s

“investigatory finding.” The Department’s use of the word “finding” cannot

be allowed to obscure what the classification of “not established” actually

signifies here: the Department has not adjudicated facts or reached any sort of

conclusion about what actually occurred when it applies a “not established”

finding; rather, it merely ascribes what functions as a working label to the

8
The Appellate Division reached a different conclusion with respect to an
investigation that resulted in an “established” finding of the reported child
abuse. See DCPP v. V.E., 448 N.J. Super. 374, 402 (App. Div. 2017) (holding
that the Department’s finding that reported child abuse meeting that statutory
definition of the term had been “established” by a preponderance of the
evidence constituted a conclusion that child abuse occurred, entitling the
person against whom the finding is made to an administrative hearing).
37
evidence collected through investigation. That distinction substantially lessens

any private interest impact that S.C. can claim.

And, when investigatory findings of “not established” (leaving aside for

the moment the standard for that designation), as opposed to “unfounded”

(which results when no evidence of harm or risk of harm to a child is found in

an investigation), are retained and used by the Department in furtherance of its

future child protection and welfare activities in connection with the individual

investigated, it is difficult in this context to see an impacted private interest of

any appreciable weight.

But assuming there is a private interest in that intra-agency retention and

use of its investigatory work product -- based on S.C.’s assertion of a liberty

interest in reputation for which she argues she need not show any tangible loss

-- the claimed private interest is far outweighed by the Department’s legitimate

reasons for acting knowledgeably in future investigations with respect to its

prior interactions with an individual, suspected of child abuse or neglect,

whose investigation did not conclude with an “unfounded” finding. We see no

basis to support S.C.’s insistence on an adjudicatory, trial-type hearing in order

for the Department to retain and internally use its own investigatory work

product when called on to investigate the individual or family again in the

future. Due process does not require an adjudicatory proceeding under such

38
circumstances. These are only investigatory findings. We will not require an

adjudicatory hearing, to convert them into adjudicative facts, in order for the

Department to use them in their future child protective work involving the

subject of the investigation.

S.C.’s interest in the investigatory finding warrants separate

consideration when that finding is made available in connection with the

exceptions and disclosures enumerated in N.J.S.A. 9:6-8.10a, however. With

respect to those, we also assess the governmental action against which the

claimed private interest must be balanced.

The Department rightly counters that the information collected in

connection with the investigation is, by statute, kept confidential and disclosed

under limited circumstances, and further that action cannot be taken on the

information without additional process. Indeed, several of the disclosures

relate to the family or its legal representative, N.J.S.A. 9:6-8.10a(b)(12),

(b)(17), and (b)(19), or to service providers or caretakers who will be working

with the child or family and need the information, N.J.S.A. 9:6-8.10a(b)(5),

(b)(11), (b)(16), and (b)(23). We fail to perceive any private protectible due

process interest concerning the investigatory findings in those settings.

Nor is there a private due process interest that outweighs the importance

of the governmental need in the instances where the Legislature has decreed

39
that other governmental agencies have an urgent need for Department

investigatory records and findings other than those that are deemed

“unfounded.” N.J.S.A. 9:6-8.10a(b)(1), (b)(2), (b)(3), (b)(4), (b)(7), (b)(15),

and (b)(20). The balancing of interests favors the sharing of the mere

investigatory finding, notwithstanding the claim of reputational harm, with out

imposing the pre-condition of an adjudicatory hearing before such information

may pass from the Department to the other governmental entities. In so

holding, it again must be noted that the “not established” finding does not

reach any conclusion that child abuse occurred, unlike an “established”

finding.

To the extent that two exceptions involve the release of information to a

court or other tribunal, N.J.S.A. 9:6-8.10a(b)(6) and (b)(14), the fact finder in

those settings will review the information in camera to determine its

admissibility. That process provides the subject adequate opportunity to be

heard on the threshold issue of admissibility and thereafter to cross-examine

and offer contrary proofs, see, e.g., L.A. v. Bd. of Educ. of Trenton, 221 N.J.

192, 204-05 (2015), obviating any present due process requirement for an

adjudicatory hearing.

Finally, to the extent that two other exceptions concern CARI checks

and the release of information to day care organizations and other entities

40
required by statute to consider child abuse investigations, N.J.S.A. 9:6 -

8.10a(b)(10) and (b)(13), the Department represents that those exceptions are

implemented in concert with N.J.A.C. 3A:10-7.7(a), which directs the

Department to “disclose only substantiated” findings in response to CARI

checks and thus cabins similarly all these related information release requests.

We take the Department at its word and regard these two exceptions to

confidentiality as carrying the caveat that they apply when a finding of abuse

or neglect is “substantiated.”

3.

Upon consideration, we reject the argument that the above-reviewed

statutory scheme, which permits potential release or disclosure of “not

established” findings in the enumerated settings, raises a due process concern

that can only be met by requiring a right to a full adjudicatory hearing. S.C.

expressly asks for, essentially, a contested case proceeding to be transmitted

and heard before the Office of Administrative Law, along the lines of what is

provided for “substantiated” findings.

“Substantiated” findings in child abuse and neglect investigations that

are subject to claims of disputed material facts receive such formal judicialized

treatment. See N.J.A.C. 3A:5-4.3(a)(2). But no such right is afforded to “not

established” findings by statute or regulation. We conclude due process does

41
not compel imposition of a formalized adversarial trial-type process in the

setting of a “not established” finding -- where no child abuse conclusion has

been reached. It is the result of an investigation, and the record and finding

from that investigation are kept by the Department and used only as set forth

by statute. Although the amici posit anecdotal settings where “not

established” findings may also be made available, we consider here only the

extant statutory uses facing S.C. as a result of a “not established” finding, and

we do not address speculative settings that are not presented in this record.

C.

Having rejected the obligation to provide an adjudicatory hearing when

rendering an investigatory finding that an allegation of child abuse or neglect

is “not established,” we consider further S.C.’s reputational concern.

To the extent that S.C. claims a reputational interest deserving of the

basics of due process protection and simple fundamental fairness, concepts to

be recognized and preserved, see Doe v. Poritz, 142 N.J. 1, 104-05, 108-09

(1995), that interest can be properly respected without the requirement of a

full-fledged adjudicatory hearing. S.C.’s reputational interest, as well as the

interests of the Department in satisfying its child protection mission now and

into the future in an effective manner, are recognized, respected, and balanced

through (1) meaningful notice of the Department’s planned investigatory

42
conclusion of a “not established” finding and (2) affording the investigated

subject an informal opportunity to be heard by the agency before the

investigatory finding is finalized.

Procedural flexibility is a hallmark of due process, as well as

administrative law. Adherence to formal trial procedures is not the default

process. The essential elements of notice and opportunity to be heard are what

due process protects.

In keeping with those essentials, when the Department is concluding an

investigation into suspected child abuse or neglect and expects to issue a

finding of “not established,” notice -- meaningful for due process

considerations -- of that investigatory finding should be provided to the

individual. The notice should include a summary of the support for the

finding, and the Department’s reasoning should be transparently disclosed. No

doubt, confidentiality concerns and the need to protect the child from potential

future risk of harm must also be respected. Moreover, the individual must be

informed of his or her opportunity to rebut the Department’s conclusion or

supplement the record so that the informal opportunity to be heard before the

agency is not illusory.9 The current process of not making a record available

9
The Department’s citation to us of N.J.S.A. 9:6-8.10a(b)(19) does not satisfy
the Department’s responsibility in this regard. The regulation provides no
assurance that a parent or guardian is informed of an informal opportunity to
43
unless and until an appeal is filed is no substitute for the basic notice and

opportunity to be heard considerations that we recognize here.

As we have been informed about the current process through this appeal,

meaningful notice and an informal opportunity to be heard on the agency’s

investigatory finding did not occur. The conclusory letter that the Department

sent to S.C. failed to inform her of the basis for the Department’s “not

established” finding. And there does not appear to be an adequate means of

formally making known to a parent or guardian under investigation the

opportunity to be heard informally and rebut or supplement the record.

Corrective action by the Department in the future can solve that.

With respect to the Department’s standard for making a finding of “not

established,” we agree with the criticism that the standard for that finding, as

written now, is vague, amorphous, and incapable of any objective calibration.

All we know is that it requires less than a preponderance of the evidence and

involves “some” evidence. At the very least, the “some evidence” description

advanced by the Department must be understood to be “credible evidence.”

Beyond that one cannot know what the Department intends by its standard and

how it is to be evaluated.

be heard by the Department on a proposed “not established” finding and rebut
or supplement the record before the Department finalizes its conclusion.
44
 We leave to the Department the responsibility to reexamine and clarify

its standard. No facial challenge is presented in this matter and we will not

reach the issue without that. 10

10
Our dissenting colleague concludes that the evidence in this matter should
compel a finding of “unfounded.” He could have ended his dissent there but
instead flouts conventional principles of appellate jurisdiction by addressing an
issue not raised by the appellant. He would declare the creation of a “not
established” category of investigatory finding to be an ultra vires act by the
Department.

S.C., who brought this appeal, first to the Appellate Division and then,
by way of petition, to this Court, conceded she did not raise the issue. The
Appellate Division decision flagged that the issue was not raised, first in the
majority opinion that identified the only two issues before that court, and then
in the concurring opinion of Judge Messano, which explicitly stated that no
facial challenge to the Department’s regulation was presented and pointedly
declined to address an unraised facial challenge to the regulatory category of a
“not established” finding.

Appellate review is not unbounded. Appellate jurisdiction must be
invoked, and the court rules require precise identification of the issues raised.
See R. 2:6-2(a)(6) (“For every point, the appellant shall include in parentheses
at the end of the point heading the place in the record where the opinion or
ruling in question is located or if the issue was not raised below a statement
indicating that the issue was not raised below.”). After certification is granted,
an appellant may not supplement the issues before this Court. See, e.g., State
v. Cabbell, 207 N.J. 311, 327 n.10 (2011) (declining to consider an argument
raised by the defendant through a supplemental brief); Hirsh v. State Bd. of
Med. Exam’rs, 128 N.J. 160, 161-62 (1992) (declining to rule on claims first
presented by appellant after the petition for certification had been granted).

The dissent asserts it is not bound by those reins of normal appellate
practice because amici referred to the issue, and because a question was posed
from the bench on the subject. Both explanations fall short. An amicus must
accept the case as presented by the parties. See State v. Lazo, 209 N.J. 9, 25
(2012); Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91 N.J.
45
 As for S.C., we remand for her to have the opportunity to rebut or

supplement the Department’s record, after the Department provides greater

clarity for its conclusion. The remand will allow development of a proper

record that can be reviewed on appeal for abuse of discretion.

V.

The judgment of the Appellate Division is reversed and the matter is

remanded for further action consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.
JUSTICE ALBIN filed a separate opinion, concurring in part and dissenting in
part.

38, 48-49 (1982). And, to suggest that the normal rules governing appellate
jurisdiction could be evaded by a question from the bench would endorse a
roving standard in place of the longstanding, sensible controls that have
brought order to appellate practice.

46
 S.C.,

Appellant,

v.

New Jersey Department of Children and Families,

Respondent.

JUSTICE ALBIN, concurring in part and dissenting in part.

The Legislature has empowered the Department of Children and

Families (Department) to investigate child abuse allegations and determine

whether those allegations are either “substantiated” or “unfounded.” The

statutory framework requires the expungement of “unfounded” complaints.

The legislative purpose is to ensure that “unfounded” allegations do not tar the

reputations and employment prospects of innocent parents.

In an end-run around the statutory expungement requirement, the

Department exercised its rulemaking authority to create a new category called

“not established.” Under this regulatory regime, the Department does not have

to expunge “not established” child abuse complaints -- only “unfounded”

complaints. “Not established” complaints are complaints that are not sustained

by a preponderance of the evidence, yet contain “some evidence” supporting

the abuse allegation, even though that evidence may lack credibility or

1
corroboration. That definition of “not established” is the ultimate misnomer

because, in the Department’s lexicon, “not established” actually establishes a

basis for not expunging a record.

The Department’s staff workers now categorize most unproveable child

abuse complaints as “not established,” rendering the expungement remedy

illusory, as in the present case of S.C., a mother whose good name is sullied by

uncorroborated and unsustained charges of child abuse.

Undoubtedly, the Department is well intentioned in not wanting to

expunge records that it believes may be useful in the future. But the

Department must act within the purview of the law rather than overthrow a

legislative mandate. The amorphous “some evidence” standard to support “not

established” determinations does not comport with elemental due process

guarantees. Even more fundamentally, the “not established” category is at

odds with the Legislature’s enabling statute. I therefore would strike down the

regulatory category of “not established.” The Department can appeal to the

Legislature for any ameliorative amendments that it thinks are in the best

interests of the child welfare system.

I believe that the majority’s decision clearly leads to a better system of

justice by imposing due process requirements and calling for a new evidentiary

standard for “not established” findings, and I applaud that effort.

2
Nevertheless, I believe that the Department’s “not established” standard is so

fundamentally flawed that it defies even this Court’s remedial measures to

save it. I would address the defect at the heart of the regulatory scheme -- the

Department’s exercise of a power not delegated to it by the Legislature.

Addressing that issue would come as no surprise to the Department, which has

defended the legality of its regulatory scheme before the Appellate Division

and this Court. Based on the record before us, the complaint against S.C. falls

within the “unfounded” category, and therefore I would end this matter

without a remand or any further burdens or costs imposed on this innocent

mother.

I therefore respectfully concur in part and dissent in part.

I.

In May 2016, the Department began an investigation of S.C. after her

seven-year-old son Luke told a school official that his mother hits him with an

open hand and a spatula on parts of his body. No bruises or marks were

observed on Luke’s body. Luke, a triplet, is classified as an emotionally

disturbed, special needs student. He had exhibited behavioral problems in the

past in school. Although the school official “hated to call [the Department] on

this family because they [had] no other concerns,” the official indicated that

3
Luke’s “disclosure” mandated that the Department be notified. No one can

quarrel with the school’s fulfillment of its statutory duty.

The Department learned from school officials that S.C. and her husband

were attentive and caring parents, who attended child study team meetings and

were very involved in their children’s lives. School officials expressed no

concern about the family and believed that Luke was having a difficult week

when he made the allegations. A Department investigator spoke with S.C., her

husband, Luke’s two sisters, and Luke. Luke’s father and siblings told the

investigator that they never observed S.C. strike Luke with a spatula, and S.C.

denied doing so. S.C. stated that, at times, she disciplined the children with an

open hand, and her husband admitted to lightly spanking the children on

occasion. Beyond this parental discipline, the investigation uncovered nothing

that even remotely established that these parents engaged in excessive corporal

punishment. See N.J.S.A. 9:6-8.21(c)(4)(b) (stating that a child is abused or

neglected if a parent inflicts excessive corporal punishment on a child).

At the conclusion of the investigation, S.C. received a letter from the

Department stating it determined that Luke’s allegations were “not

established.” Yet, S.C. could not take heart from what she read. The letter

stated that “not established” meant that “some evidence indicates that a child

was harmed or placed at some risk of harm, but there is not a preponderance of

4
evidence that the child has been abused or neglected per N.J.S.A. 9:6-8.21.”

(emphasis added).

S.C. was advised that her family would not require the services of the

Department and that she had no right to an administrative appeal. She was

also told that the Department would retain the records of the investigation,

which could be disclosed pursuant to N.J.S.A. 9:6-8.10a.

That statute sets forth more than twenty categories for the release of

“not established” complaint records. See N.J.S.A. 9:6-8.10a(b). For example,

records may be released to authorities who are in a position to determine a

parent’s fitness to have custody of her children, provide kinship care for a

relative’s children, or offer a foster home for other children. See ibid. Release

of “not established” records to service providers may permanently impair a

parent’s reputational interest based on nothing more than a “some evidence”

finding. See N.J.S.A. 9:6-8.10a; Dep’t of Children & Families v. R.R., 454

N.J. Super. 37, 41-42 (App. Div. 2018).

That is the factual and legal landscape that brings this case before us.

II.

Whether the Department has the statutory authority to promulgate a

regulation that allows “not established” child abuse records to be maintained

and released to certain entities is an issue that was sufficiently raised and

5
argued before this Court. Its resolution would cause no surprise or unfairness

to the parties.

Admittedly, S.C. did not raise this issue in her petition, although she did

advert to this issue in her Appellate Division papers. The Department,

moreover, defended the legality of the regulatory system not only before the

Appellate Division but also before this Court, particularly in response to the

challenge by amicus curiae Legal Services of New Jersey. 1 Indeed, over the

Department’s objection, we granted amicus status to Legal Services with full

knowledge that it was raising this specific issue. 2 Nearly twenty-seven pages

of the Department’s supplement brief was dedicated to the argument that the

“not established” category was not ultra vires. It would come as no surprise to

the parties if this Court were to address an argument that it invited. We also

granted amicus status to the New Jersey State Bar Association, which argued

1
Point I of the Department’s brief to this Court is entitled: “THE
DEPARTMENT OF CHILDREN AND FAMILIES’ CREATION OF AN
INVESTIGATIVE CATEGORY OF ‘NOT ESTABLISHED’ IS
CONSISTENT WITH THE BROAD DELEGATION OF AUTHORITY SET
FORTH IN N.J.S.A. 9:6-1 ET SEQ.”
2
In its initial brief in support of its motion to participate as amicus curiae,
Legal Services presented a challenge to a deeply flawed legal framework
“involving agency regulatory and administrative actions that exceed and
conflict with statutory authority.” Legal Services concluded that brief by
stating that the “Department’s arrogation of authority in contradicting the
binary legislative framework, creating two new very problematic categories,
suggests ultra vires activity by the agency.”

6
that the “not established” category should be struck down on due process

grounds and that “[t]he standard for arriving at a ‘not established’

determination is not supported by statute.” Additionally, the legislative

authority for the regulatory scheme was explored during oral argument before

this Court.

I will therefore address the foundational issue -- whether the Department

acted within the proper ambit of its regulatory authority by creating a category

of “not established” claims.

III.

One of the paramount responsibilities of the State is to protect children

from the infliction of harm, even from their parents and guardians. To that

end, the Legislature has enacted a statutory scheme -- Title Nine -- that

provides for the investigation of child abuse and neglect accusations. N.J.S.A.

9:6-8.8 to -8.114. Under that scheme, a child who is subjected by his parents

to “physical injury by other than accidental means which causes or creates a

substantial risk of . . . protracted impairment of physical or emotional health”

is an abused or neglected child. N.J.S.A. 9:6-8.21(c)(1). For example, the

statutory scheme prohibits the “infliction of excessive corporal punishment .”

Id. at (4)(b).

7
 The Legislature delegated to the Department the power to investigate all

allegations of child abuse or neglect. See N.J.S.A. 9:6-8.11. At the conclusion

of the investigation, Title Nine confers on the Department the authority to

determine whether the claim of abuse or neglect is “substantiated” or

“unfounded.”3 See N.J.S.A. 9:6-8.10a; N.J.S.A. 9:6-8.40a. Under this two-

tiered system, substantiated allegations are retained and subject to disclosure

pursuant to N.J.S.A. 9:6-8.10a and unfounded allegations are subject to

expungement pursuant to N.J.S.A. 9:6-8.40a (expungement statute). In

particular, N.J.S.A. 9:6-8.40a(a) provides that the Department “shall expunge

from its records all information relating to a report . . . of child abuse or

neglect” if the Department determines that the “allegation of the incident was

unfounded.” Before 2004, N.J.S.A. 9:6-8.40a defined “unfounded” as a

complaint that raises “no concern on the part of the [D]ivision that the safety

or welfare of the child is at risk.” N.J.S.A. 9:6-8.40a(b) (2003). In 2004, the

Legislature amended N.J.S.A. 9:6-8.40a, authorizing the Department to

promulgate rules setting forth “[t]he definition of, and process for, making a

determination of an unfounded report.” N.J.S.A. 9:6-8.40a; L. 2004, c. 130, §

32.

3
When the Department finds an allegation to be “substantiated,” the
regulations permit the parent or guardian to seek an administrative hearing.
See N.J.A.C. 3A:5-4.3.

8
 In the wake of the amendment to N.J.S.A. 9:6-8.40a, the Department

adopted two categories of investigative findings -- “substantiated and

unfounded” -- and made the standard for those determinations “consistent with

the legal standard for fact finding hearings as expressed in [N.J.S.A. 9:6-

8.46],” which provides for determinations based on the preponderance of the

“competent, material and relevant evidence.” See 36 N.J.R. 4617(a) (Oct. 18,

2004); see also 37 N.J.R. 282(a) (Jan. 18, 2005).

Significantly, before 2004, the Department had a three-tiered regulatory

scheme -- “substantiated,” “not substantiated,” and “unfounded.” See 36

N.J.R. 4617(a). The new regulatory scheme eliminating the “not substantiated

category” was adopted, in part, in response to complaints that the

Department’s investigators “tended to classify their findings in [that] category”

to avoid expunging records, and that the evidentiary standard for “not

substantiated” determinations was deficient. See ibid.

Under the new regulation, an allegation of abuse or neglect not

supported by a preponderance of the credible evidence in the record was

deemed “unfounded” and therefore subject to expungement. See 37 N.J.R.

282(a). The two-tiered system, in the words of the Department, would “result

in more definitive decisions about children’s safety and clarify outcomes for

families and child welfare professionals.” See 36 N.J.R. 4617(a). The two-

9
tiered system fully complied with the structure of Title Nine and the

expungement statute, N.J.S.A. 9:6-8.40a.

In 2011, the Governor vetoed a bill that would have brought back the

“not substantiated” determination. See A. 4109 (2011)/S. 1570 (2010). Under

the rejected legislation, a “not substantiated” determination would be satisfied

when “the available information . . . provides some indication of a finding that

a child has been harmed or placed at substantial risk of harm by a parent or

guardian.” See ibid. The legislation would not have provided for

expungement of records related to a “not substantiated” determination. See

ibid.

From 2004 to 2012, the Department conducted abuse and neglect

investigations, making one of two possible determinations, consistent with its

statutory mandate: “substantiated” or “unfounded.” See N.J.S.A. 9:6-8.10a;

N.J.S.A. 9:6-8.40a; 45 N.J.R. 738(a) (Apr. 1, 2013); 36 N.J.R. 4617(a). For

the year 2012, the Department reported 9148 “substantiated” determinations

and 79,558 “unfounded” determinations that required expungement of

records.4

4
The 2012 data referenced here and later in this opinion can be found at
Division of Child Protection & Permanency, Child Abuse and Neglect Reports
and Substantiations (2012), https://www.nj.gov/dcf/childdata/referrals/2012-
AnnualAbuseNeglectReport.pdf, by subtracting the institutional numbers from
the total numbers.

10
 In 2013, apparently in reaction to the high number of records being

expunged under the two-tier system, the Department used its rulemaking

authority to create a four-tier system -- “substantiated,” “established,” “not

established,” and “unfounded” -- for resolving abuse and neglect complaints.

See N.J.A.C. 3A:10-7.3. Of the four categories, only “unfounded” allegations

are subject to expungement. N.J.A.C. 3A:10-7.7(b). An allegation is

“‘unfounded’ if there is not a preponderance of the evidence indicating that a

child is an abused or neglected child . . . , and the evidence indicates that a

child was not harmed or placed at risk of harm.” N.J.A.C. 3A:10-7.3(c)(4). In

contrast, an allegation is “‘not established’ if there is not a preponderance of

the evidence that a child is an abused or neglected child . . . , but evidence

indicates that the child was harmed or was placed at risk of harm.” N.J.A.C.

3A:10-7.3(c)(3) (emphasis added). The Department takes the position that the

“evidence” referred to in the “not established” category is merely “some

evidence.” 45 N.J.R. 738(a).

In its brief to this Court, the Department explained that in determining

whether there is “‘some evidence’ of harm or risk of harm” under N.J.A.C.

3A:10-7.3(c)(3), “[t]he credibility and veracity of the statements are not at

issue -- only their existence.” Under that elastic definition, almost all abuse

allegations on their face would fit within the “some evidence” standard, with

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certain illustrative exceptions, as noted by the Department at oral argument.

The “some evidence” test would not be met, according to the Department,

when a child states that a parent “brought a Martian in to beat me up” or when

a video shows that a parent was in another state at the time of the alleged

abuse. Under that approach, almost any baseless allegation of abuse and

neglect could fall within that standardless definition for “not established,” thus

justifying the non-expungement of records. There is very little difference

between the “not established” category adopted by regulation by the

Department and the “not substantiated” category passed by the Legislature but

vetoed by the Governor.

In 2017, just three years after adopting the “not established”

determination, that category accounted for over seventy percent (70%) of all

determinations. Out of 87,574 allegations, the Department reported 62,514

“not established” determinations. In 2012, based on “unfounded”

determinations, the Department expunged records relating to approximately

ninety percent (90%) of abuse and neglect allegations. In 2017, with the new

“not established” category, the Department expunged records relating to just

over twenty percent (20%) of abuse and neglect allegations. Comparing the

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two-tiered system in 2012 to the four-tiered system in 2017, there were 60,835

fewer allegations subject to expungement under the four-tier system.5

The Department has promulgated regulations to successfully circumvent

the expungement statute by retaining records that are not supported by a

preponderance of the evidence. 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 -- a

preponderance of the evidence.

The Legislature evidently intended “unfounded” abuse or neglect

allegations to be expunged because a parent cleared of such allegations should

not suffer collateral civil consequences. See N.J.S.A. 9:6-8.40a. Despite that

clear legislative objective, the disclosure of “not established” allegations to

some service providers under the Department’s “some evidence” standard has

the capacity to permanently and unfairly tar a parent’s reputation and deny that

parent meaningful opportunities.

5
The 2017 data can be found at Rutgers School of Social Work, Child
Abuse/Neglect Report, https://njchilddata.rutgers.edu/portal/child-abuse-
neglect-report (last visited May 12, 2020), by utilizing the filters for “Family
Reports” and “Findings.”

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 IV.

The majority has made a commendable effort to mend a broken

regulatory scheme that denies parents such as S.C. -- cleared of wrongdoing

-- minimal standards of due process. I believe this regulatory scheme,

however, directly contravenes the legislation that it is intended to advance, and

therefore nothing short of eliminating the “not established” category is a fix.

An administrative agency possesses only those powers delegated to it by

the Legislature. See N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J.

544, 561-62 (1978). Although the grant of that authority “is to be liberally

construed in order to enable the agency to accomplish its statutory

responsibilities,” id. at 562, an agency cannot exercise powers that contravene

the statutory language or the Legislature’s intent, see A.A. Mastrangelo, Inc. v.

Comm’r of Dep’t of Envtl. Prot., 90 N.J. 666, 684 (1982). An administrative

regulation, moreover, “must be within the fair contemplation of the delegation

of the enabling statute.” S. Jersey Airways v. Nat’l Bank of Secaucus, 108

N.J. Super. 369, 383 (App. Div. 1970).

Title Nine directs the Department, when investigating allegations of

abuse and neglect, to determine whether those allegations are “substantiated”

or “unfounded.” See N.J.S.A. 9:6-8.10a; N.J.S.A. 9:6-8.40a. The Legislature

directed the Department to expunge the records of “unfounded” allegations ,

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delegating to the Department the authority to define the term “unfounded.”

See N.J.S.A. 9:6-8.40a. The Department accomplished that task by adopting a

regulation defining the term “unfounded” in accordance with the enabling

statute. Ibid.; 37 N.J.R. 282(a). By passing a bill that would have added a

category between substantiated and unfounded -- a bill ultimately vetoed by

the Governor -- the Legislature presumably expressed its understanding that

creating a new category was a legislative prerogative. See A. 4109/S. 1570

(vetoed by Governor Christie).

In express contravention of that legislative prerogative, as well as the

expungement statute, the Department promulgated the current four-tiered

system, adding the “not established” category that allows the Department to

maintain and share records despite a finding that a preponderance of the

evidence does not support an allegation against a parent. See N.J.A.C. 3A:10-

7.3(c); A.A. Mastrangelo, 90 N.J. at 684 (“[W]here the enabling legislation

cannot fairly be said to authorize the agency action in question, the power is

denied.”). The Department evidently was concerned that too many records

relating to abuse and neglect investigations were falling within the

“unfounded” category, resulting in the expungement of those records.

The Department’s position that abuse and neglect investigation records

should be maintained for the purpose of keeping track of potential repeat

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allegations, even if the investigated allegation does not meet the

preponderance of the evidence standard, is ultimately a policy decision. The

Legislature, however, has mandated that “unfounded” allegations, which the

Department has defined in N.J.A.C. 3A:10-7.3(c)(4), must be expunged. If the

Department believes that the expungement of all “unfounded” allegations is

not in the best interests of the State, it should present its case to the

Legislature. It bears mentioning that federal law permits the maintenance of

abuse and neglect records of “unsubstantiated” allegations for internal use

only, see 42 U.S.C. § 5106a(b)(2)(B)(xii), an approach that might mitigate the

due process concerns raised in this case.

V.

In summary, I agree with the majority that the Department’s “some

evidence” standard for making “not established” determinations is “vague,

amorphous, . . . incapable of any objective calibration,” and has led to

“shortcomings in fairness for parents and guardians involved in investigations

that lead to [‘not established’] findings.” Ante at ___ (slip op. at 4-5, 44). For

the reasons stated, however, I would go further and strike down the “not

established” category. I believe the Department, in creating a “not

established” category under N.J.A.C. 3A:10-7.3(c)(3), has exceeded the

authority delegated to it by the Legislature. The “not established” category has

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allowed the Department to elide making the determination that the Legislature

expects of it -- a determination whether the allegation is unfounded. The

Department’s good intentions cannot save a regulation that undermines the

Title Nine expungement statute. See A.A. Mastrangelo, 90 N.J. at 684.

I would end this case today and spare S.C. the hardship and expense of a

remand. The Department’s own investigative findings establish that the abuse

and neglect allegations in S.C.’s case are “unfounded,” as defined by the

Department’s own regulation. See N.J.A.C. 3A:10-7.3(c)(4) (“An allegation

shall be ‘unfounded’ if there is not a preponderance of the evidence indicating

that a child is an abused or neglected child . . . , and the evidence indicates that

a child was not harmed or placed at risk of harm.”).

I therefore respectfully concur in part and dissent in part from the

judgment of the Court.

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