DCPP attorneys are now starting to grapple with the new rules governing DCPP investigation findings. The new rules govern how DCPP will make findings after conducting an investigation. For each allegation, DCPP now must make a finding that is either “substantiated”, “established”, “not established,” or “unfounded.”
N.J.A.C. 10:129-7.3(c) defines the four different findings. Two of those findings, “substantiated” and “established” involve situations in which DCPP determines that a child is an “abused or neglected child” under New Jersey law. In essence, the new rules have divided the former definition of “substantiated” into two new findings. The distinction between “substantiated” and “established” is very important.
The distinction is is very important for at least two reasons. The first reason is that “substantiated” allegations are accessible for any authorized legal use of the Central Registry whereas “established” allegations are not. (See Part Two of this series for the legal uses of the Central Registry) The second important distinction is that the code allows an administrative or judicial appeal of a “substantiated” allegations, whereas it is not clear whether or how a parent may appeal a finding of “established.”
According to the code, 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 one of the two following conditions exists. (a) If any of the six very serious enumerated acts or conditions exist; or (b) substantiation is warranted based on a consideration of the enumerated legal factors. (See Part Three of this series for the conditions which call for a finding of “substantiated”.)
According to the code, an allegation shall be “established” 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 BUT the act or acts committed or omitted do not warrant a finding of “substantiated”.
The one thing that is clear about the distinction is that the more serious acts or omissions should be “substantiated” whereas less serious instances of abuse or neglect should be “established”. There is no clear border between the two outcomes. These definitions leave plenty of room for interpretation. While there are certainly distinctions between the two findings, each case will be determined on its own facts. No two cases are identical. No one, regardless of how educated or articulate, should confront these situations without consulting an experienced DCPP attorney.
