In New Jersey, the state agency responsible for protecting children from abuse and neglect is the Division of Youth and Family Services (DYFS). People who suspect that a child is being abused or neglected report this to DYFS.
What happens after DYFS receives a report about abuse or neglect of a child?
A report of abuse and neglect to DYFS is called a referral. DYFS must investigate all referrals. That means that a DYFS investigator must gather as much information as possible about the report. Then the investigator must decide if the abuse or neglect did or did not happen. If DYFS finds no evidence that the abuse or neglect happened, the case is labeled unfounded. If the report is unfounded, DYFS will close the case and take no more action. If DYFS finds that there was clear evidence that the abuse or neglect happened, then the case is labeled substantiated. DYFS is said to have made a substantiated finding of abuse or neglect.
What happens if DYFS makes a substantiated finding of abuse or neglect?
If you are the person being accused of abusing or neglecting a child and DYFS makes a substantiated finding, that means that your name will be recorded in a database called the child abuse registry. The child abuse registry is a state database where the facts of the report and investigation of child abuse and neglect are kept. The names recorded in this database are kept there permanently. The only way to get your name removed from this database is to appeal the DYFS substantiated finding in the time the law allows and explain why DYFS should remove your name from the database.
Sometimes DYFS will still allow you to live with your children even after they substantiate a finding of abuse or neglect. Sometimes DYFS will remove your children from you. If your children are living with you, the appeal may be made to DYFS. If your children are removed from you, the case will be heard in the Superior Court.
NEGATIVE THINGS THAT MAY HAPPEN TO YOU AS A RESULT OF A SUBSTANTIATED FINDING OF ABUSE OR NEGLECT
You may be restricted from working with children, the disabled, or the elderly. New Jersey law requires employers who are hiring employees to work with children, the disabled, or the elderly to check the child abuse registry before hiring. For this reason, they may get names from the child abuse registry. Otherwise the names recorded in the registry are confidential, meaning that no one may see them without permission. If you are applying for a job where you will work with children, the disabled, or the elderly, and the employer finds out that your name is recorded in the child abuse registry, you may not get hired for the job.
You may get fired. If your current employer learns that your name is on the child abuse registry, you may get fired from your job. It is important to tell your employer if you are in the process of appealing the substantiated finding. Your employer may be willing to keep you employed until you get the results of the appeal.
You may be restricted from becoming a foster or adoptive parent. If your name is on the child abuse registry, you may be restricted from becoming a resource (foster) parent or adoptive parent. This is true even if the substantiated finding of abuse was made many years before you apply to become a foster or adoptive parent.
WHAT DYFS MUST TELL YOU ABOUT APPEALING A SUBSTANTIATED FINDING
After DYFS makes a substantiated finding of abuse or neglect and records your name in the child abuse registry, they must send you a notice informing you of the substantiation. This notice must be either in English or Spanish, depending on what language you speak. The notice should also contain:
- A statement that you have 20 calendar days in which to appeal the substantiation
- Your DYFS Case ID number
- Your DYFS Investigation number
- Instructions on how to appeal the substantiation.
If your DYFS case is being heard in the Superior Court. If your case is already being heard in Superior Court, you should have an attorney assigned to represent you. Give your attorney a copy of the DYFS substantiation and discuss with him or her how to appeal the substantiation.
If your DYFS case is not being heard in the Superior Court. If your case is not being heard in court and you receive a notice from DYFS, there are several steps you may take to begin the appeal process. The steps are outlined below. Remember that these are just general guidelines. Some cases may take more time or less time, depending on the schedule of the judge hearing your appeal and the facts of your case.
Step One: Write a Letter Requesting an Appeal
Within 20 calendar days of the date on which you receive the notice of substantiation from DYFS, you should write a letter to DYFS. That letter should state:
- That you want to appeal the substantiated finding of abuse or neglect made against you.
- That you are requesting an Office of Administrative Law Hearing before an Administrative Law Judge (ALJ).
- Your name, home address, home telephone number, DFYS Case ID number, and the DYFS Investigation number. (This information should appear in the DYFS notice that you receive.)
You may also attach a copy of the DYFS notice to your letter requesting an appeal. Your letter to DYFS does not have to be long. It may be a one-page letter where you are making a simple request for an appeal of the substantiation.
Once DYFS receives your letter, they will begin to conduct an internal review of your case.
If they find that the facts do not support the substantiation, they may rescind (undo) the substantiation without an appeal hearing . This means that your name will be removed from the child abuse registry.
Step Two: DYFS Letter to You About the OAL Hearing
After DYFS receives your letter requesting an appeal of the substantiation, they will send you a letter. The DYFS letter should:
- State that the matter has been referred to the Office of Administrative Law (OAL) for hearing the appeal.
- Give you important information about the OAL hearing, including:
- How the hearing will be conducted
- How to prepare for the hearing
- The name and telephone number of the Deputy Attorney General (DAG) who will represent DYFS at the hearing.
Read the DYFS letter carefully. It should help you better understand the appeal process and your legal rights. Save this letter for your records.
Step Three: First OAL Letter to You About The Schedule of Your Appeal
After you receive the DYFS letter, you will receive a letter from the Office of Administrative Law. That letter will state:
- That it has received your request for an appeal of the substantiated finding of abuse or neglect, and
- The timeline for your appeal.
Make sure to read this letter carefully. Save it so that you can follow the appeal process.
Step Four: Second OAL Letter to You About The Schedule of Your Appeal
After the first letter, you will receive a second letter from the Office of Administrative Law. The second letter will tell you:
- The date, time, and location of the pre-hearing conference. (This conference may be either in person or over the phone.)
- The name of the Administrative Law Judge (ALJ) assigned to your case.
The pre-hearing conference. At the pre-hearing:
- The ALJ will introduce him- or herself to you.
- You will meet the DAG assigned to represent DYFS.
- The ALJ will decide the timeline for discovery (exchange of information between you and the DAG about your DYFS case).
- The ALJ will set the date, time, and location for hearing your appeal of the substantiated finding in what is called a plenary hearing. A formal Notice of Plenary Hearing will be sent to you in the mail, stating this information.
You must appear in person for the plenary hearing. If you are unable to attend the plenary hearing, you must notify the OAL office and/or the ALJ in writing right away. You must have a very good reason for asking that the hearing date be rescheduled, such as an illness or a family emergency. You may have to document (show proof of) this emergency.
If you do not ask for a postponement or fail to come to the plenary hearing, the ALJ may affirm the substantiated finding, and your name will remain on the child abuse registry.
Step Five: Discovery (The Exchange of Information Between You and DYFS)
In the meantime, discovery will take place. Discovery is when you and DYFS ask for information from each other. Start by asking the DAG for a copy of your DYFS case file so that you can review it in preparation for the plenary hearing. Going through your DYFS case file will help you identify information relevant to your case and make more requests for the right documents and information to help you support your position.
Deadline for discovery. All discovery requests must be completed five days before the plenary hearing date. Both you and DYFS will have 15 days to provide the requested information after receiving the discovery request.
Objections to discovery requests. If you or DYFS do not want to provide the requested information, you have 10 days from receiving the discovery notice to object to the discovery request. All objections must be made by a telephone conference to the ALJ. We also suggest that you put the objections into writing in a letter to the DAG and the ALJ.
Compelling (forcing) responses to discovery requests. If you or DYFS want to compel (force) the other party to respond to a discovery request or object to a response you have received to your discovery request, you have 10 days from the notice due date or 10 days from the date you received the response without the information to request a telephone conference with the ALJ about the problem getting discovery. If you do not request this conference within those 10 days, the ALJ may refuse to compel your discovery request or deny your objection.
Keep in mind that the time line described above is only a general guideline for discovery due dates, and that the ALJ may order a different set of due dates. If the ALJ sets a schedule, you must make sure to follow the scheduling order for discovery signed by the ALJ.
Step Six: Prepare for the Plenary Hearing
Prepare documents. While you are requesting and receiving discovery materials, you should also start to prepare for the plenary hearing. Do this by gathering all important letters, notes, records, and any other documents related to your appeal.
Carefully review all of your documents. Organize them so that you have them ready for the plenary hearing. Remember that this will be your chance to present evidence that can help you win your appeal.
Keep copies of all documents that you wish to submit, one set for the ALJ and one set for the DAG. Make sure to keep a set of all the documents for yourself.
Prepare witnesses. You should also start to identify any witnesses you want to bring to the plenary hearing to testify in support of your position. Contact them well in advance of the hearing date to make sure that they are able to come and that they will come voluntarily.
Prepare each witness for the testimony that they will give at the hearing. Make sure that the testimony is related to your appeal of the substantiation.
Prepare your argument. It is a good idea to make a list for yourself of all the points you wish to make before the ALJ about why the substantiation should be reversed. Do this so that you do not forget to mention something that is important to your case. This is especially important if you are representing yourself at the hearing. Remember, this is your chance to tell the judge why he or she should reverse the substantiation and remove your name from the child abuse registry.
Step Seven: Attend the Plenary Hearing Before the OAL Judge
An OAL judge, a DAG, and you will be at the plenary hearing. You have a right to represent yourself. You may have an attorney represent you at the plenary hearing at your own cost, but you do not have an automatic right to an appointed attorney. You also have the right to bring:
- A non-lawyer to represent you at the hearing. (There are special laws about non-lawyers representing persons in the OAL.)
- A relative or friend to advise you.
- Any other people you want to call as your witnesses at the hearing.
At the hearing, the ALJ will give both you and DYFS the chance to present your case. You will have the chance to tell the judge why the substantiation should be reversed. You may also submit documents in support of your position and call witnesses to give testimony on your behalf. DYFS will do the same. Before making a decision, the ALJ will listen to witnesses, listen to the arguments of each side, ask questions, and review documents.
During the plenary hearing, be polite and respectful to the ALJ and DAG. Clearly explain what you want the ALJ to know about the reasons for the substantiation. In an organized manner, explain to the ALJ why he or she should reverse the substantiation and remove your name from the child abuse registry. Listen carefully to any questions the ALJ may ask about the appeal, and answer them thoughtfully. Offer witness testimony in support of your position.
Remember, the ALJ will decide the appeal based only on the record made before him or her at the hearing. This includes testimony and the evidence submitted at the hearing. It is very important to cover all relevant information about your appeal at the plenary hearing. In particular, emphasize to the ALJ that the substantiation does not rise to the level of abuse and neglect as defined by New Jersey law. Make sure that the ALJ has enough information to decide the appeal in your favor.
Step Eight: Receive the Initial Decision, Submit Comments, and Appeal the Final Decision
After the hearing, the ALJ will write a report called an Initial Decision. The ALJ will mail a copy of this Initial Decision to you and the DAG. This Decision should recite what was said at the plenary hearing. It should state the ALJ’s findings about the facts presented by each party and the laws and policies that apply to the appeal case. It should also contain instructions on how to send any comments you may have on the decision. It should recommend how the appeal should be decided.
Submit comments on the ALJ’s Initial Decision. Upon receiving the Initial Decision, both you and the DAG have 13 calendar days to submit comments on the report to the Administrative Hearing Coordinator. Comments may include objections to what was said or done at the hearing. Comments may also include objections to findings the ALJ made in his or her report. If you plan to submit a comment, you must clearly state in writing why the judge’s Initial Decision should be changed, accepted, or modified, and submit supporting documentation for your position.
Agency Head Issues a Final Decision. Before issuing a Final Decision, the Agency Head reviews the Initial Decision. The Agency Head also reviews all the comments it receives from you and the DAG. After reviewing the Initial Decision and comments, the Agency Head will issue a Final Decision. The Final Decision is sent to both you and the DAG.
Appealing the Final Decision. If you object to the Final Decision, you have a right to appeal to the Appellate Division of the Superior Court of New Jersey by filing a Notice of Appeal within 45 days of the date of the Final Decision.
LEGAL SERVICES OF NEW JERSEY’S FAMILY REPRESENTATION PROJECT
For more information, contact Legal Services of New Jersey’s Family Representation Project by calling LSNJ-LAW™, LSNJ’s statewide, toll-free legal hotline at 1-888-LSNJ-LAW (1-888-576-5529) Monday through Friday between 8:00 a.m. and 5:30 p.m.
This article originally appeared in the November 2011 issue of Looking Out for Your Legal Rights®.