Different Evidentiary Rules for New Jersey DCP&P Cases

Families in New Jersey face incredible challenges when suspicions of child abuse or neglect arise. New Jersey's Division of Child Protection and Permanency, or DCPP, has offices all over the state with officials ready to intervene to protect the child or children. Child protection is a good thing. But DCPP's extraordinary powers to remove children temporarily without court action and then to obtain swift and sure court approval in a child protection and permanency case to continue the removal can either save or crush family members, depending on who gets the child or children. You need skilled and experienced DCPP defense attorney representation in any DCPP case. But you can help your case if you understand how New Jersey evidentiary rules for DCPP cases affect case outcomes.

New Jersey Evidence Law for DCPP Cases

The New Jersey legislature decided to change the evidence rules for DCPP cases, relaxing evidentiary standards and the burden of proof. Those changes mean that the hearing judge can consider more evidence more efficiently and swiftly and continue the child or children's removal with less evidence than a criminal court would require. New Jersey's courts follow suit under New Jersey Court Rules carrying out the legislature's statutory authority. Together, the statute and court rules treat DCPP evidence very differently. Evidentiary rules in DCPP cases admit much more evidence of a generally less trustworthy kind than evidentiary rules in criminal court cases. That difference means that you and your retained DCPP defense attorney will need to be more prepared than ever to present evidence that you were not responsible for any abuse or neglect of your child or children, who should therefore remain in your care and custody.

New Jersey Statutory Authority for DCP&P Cases

The New Jersey legislation that modifies the evidentiary standards for DCPP cases is codified in New Jersey Statute 9:6-8.46. Subsection a.(1) of the statute first allows the hearing judge in a DCPP case to use evidence of the abuse or neglect of one child to prove abuse or neglect of other children. That presumption generally means that if you lose one child, you'll lose all your children. Subsection a.(1) states simply that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the responsibility of, the parent or guardian….” That presumption is virtually the opposite of what happens in a criminal court charge of abuse or neglect, where the prosecutor must prove each act of abuse or neglect as to each child on its own evidence.

The next section of New Jersey Statute 9:6-8.46 permits the hearing judge in a DCPP case to construe evidence of the child's injury as evidence that the parent or guardian responsible for the child committed abuse or neglect causing that injury. Injuries alone are not ordinarily evidence that a parent or guardian abused or neglected the child, except that the statute permits the hearing judge to construe them as such. Subsection a.(2) admits “proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian [as] prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child….” The prosecutor in a criminal court case would ordinarily have to present evidence of the parent or guardian's abuse or neglect, except that the statute allows the hearing judge to presume that evidence in a DCPP case.

New Jersey Statute 9:6-8.46‘s next section permits the hearing judge in a DCPP case to consider hearsay staff reports, consultant reports, and hospital records. In a criminal case, hearsay is ordinarily inadmissible, meaning the court cannot consider out-of-court statements contained within those records. The prosecutor must instead call a witness to testify in court to those out-of-court statements that are hearsay within the records. But for DCPP cases, if the hearing judge finds that the hospital, agency staff member, or consultant made the record in the ordinary course of business, the statute's subsection a.(3) admits “any writing, record, or photograph, … made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency [as] evidence in proof of that condition, act, transaction, occurrence or event….”

The next section of New Jersey Statute 9:6-8.46 admits as evidence in DCPP cases prior out-of-court hearsay statements of children about abuse or neglect. In a criminal court case, hearsay rules would generally bar those out-of-court statements, especially insofar as they can be the most damaging but also the least reliable kind of evidence. But in DCPP cases, the statute's subsection a.(4) admits as evidence “previous statements made by the child relating to any allegations of abuse or neglect…, provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect.”

The next section of New Jersey Statute 9:6-8.46, subsection b., lowers the DCPP's burden of proof far below the beyond-a-reasonable-doubt burden a prosecutor must meet in a criminal charge of abuse or neglect. The DCPP's burden is a mere preponderance of the evidence, meaning just enough evidence to make abuse or neglect more probable than not. Subsection b. states that any determination of child abuse or neglect in a DCPP case need only “be based on a preponderance of the evidence.” The hearing judge in a DCPP case can remove the child or children on much less evidence, and in much more hotly contested cases, than the evidence on which a criminal court could convict a defendant of criminal abuse or neglect.

New Jersey Court Rules for DCP&P Cases

New Jersey Court Rules and New Jersey Evidence Rules carry forward the New Jersey legislature's statutory intention. A first New Jersey Court Rule for DCPP cases, Court Rule 5:12-1, encourages DCPP hearing judges to remove children on only record evidence rather than testimonial evidence. Prosecutors in criminal cases must routinely call live witnesses to testify under cross-examination in open court for criminal abuse or neglect convictions. By contrast, DCPP officials can simply present staff reports, consultant reports, and hospital records to gain removal, without calling the report authors or others as witnesses. Rule 5:12-1 states in the relevant part: “In deciding whether to require oral testimony, the court shall determine whether there are material facts in dispute and whether the required findings can be made by a preponderance of the evidence based on reliable and relevant documents that all parties have had a full and fair opportunity to challenge.”

Another court rule suspends hearsay rules in DCPP cases to ensure that hospital records, staff reports, and consultant reports get in as evidence without the necessity of calling live witnesses. New Jersey Court Rule 5:12-4 provides: “The Division of Child Protection and Permanency … shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants.” New Jersey Court Rule 5:12-4 further provides that “[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.” That provision means that the reports alone are enough to support removal. A criminal court charge would require the prosecutor to call the live witnesses to testify under cross-examination.

New Jersey Evidence Rules for DCP&P Cases

The above New Jersey Court Rule 5:12-4 expressly refers to New Jersey Rule of Evidence 801(d) and New Jersey Rule of Evidence 803(c)(6) as authorizing hearsay records as evidence in DCPP cases. New Jersey Rule of Evidence 801(d) defines the institutions, occupations, and agencies the records from which the DCPP hearing judge may, under New Jersey Court Rule 5:12-4, consider despite their hearsay content. New Jersey Rule of Evidence 803(c)(6) then provides, under New Jersey Court Rule 5:12-4's incorporation, that statements in those hospital, staff, and consultant reports and records of regularly conducted activities are not hearsay and are thus admissible. The courts have, in other words, clearly carried out the New Jersey legislature's intent to allow much more evidence into DCPP hearings than in criminal court cases. DCPP officials have a much easier time gaining removal of children on much less evidence than a prosecutor would need to prove a criminal charge of abuse or neglect. The ease with which DCPP officials can present evidence for removal doesn't mean they win every case. The above authority simultaneously makes clear that the parent or guardian objecting to removal may rebut the DCPP's removal evidence. But rebutting a case can be much harder than preventing an official from making a case in the first place. Chances are good that DCPP officials can make a case for removal. The question is what the objecting parents or guardians can do, with skilled DCPP defense attorney representation, to prevent it.

Inadmissible Evidence in New Jersey DCP&P Cases

Some evidence remains inadmissible in New Jersey DCPP cases, despite the relative ease with which DCPP officials can make a case for removal. The above statutory authority, rules of evidence, and court rules do not eliminate other fundamental evidence rules and principles as to relevance, undue prejudice, waste of time, needless duplication, and similar restrictions. Indeed, to the contrary, New Jersey Statute 9:6-8.46b.(2) expressly provides that in DCPP cases, “only competent, material and relevant evidence may be admitted.” Relevant evidence is evidence that makes a material fact more or less likely. The testimony and exhibits that the DCPP presents at a hearing to continue the removal must make it more or less likely that the parents, guardians, or others did or did not abuse or neglect children. Your retained DCPP defense attorney can still object to evidence that appears to distract the court or unduly prejudice you in your interests to retain custody and otherwise care for and protect your child or children. Your retained DCPP defense attorney may also object to evidence of your embarrassing financial, employment, reputational, and relational issues, the unduly prejudicial weight of which substantially outweighs any slight relevance. DCPP hearings are not mud-slinging contests. The hearing judge should control the proceedings, even if not quite so tightly as in a criminal court case.

Resolving DCP&P Evidentiary Disputes

You have every right to fight for your child or children, including your right to their care and custody and their protection from the custody or control of others who might abuse or neglect them. Your DCPP hearing judge understands your rights and interests. While the hearing judge has the legislature's authority, and the authority of the above court rules and rules of evidence, to admit more evidence and less-reliable evidence than a judge in a criminal court case could admit, the DCPP hearing judge should still listen to your retained attorney's skilled objections to reject inadmissible evidence. Your DCPP hearing judge must also listen to your own case rebutting any allegation or inference that you were responsible for abuse or neglect. The lower evidentiary standard and proof burden in DCPP cases just means that you have more incentive than ever to assist your retained DCPP defense attorney in making your own case for custody of your children. Rely on the skilled representation of your experienced DCPP defense attorney to help you build your best case, even if it comes down to presenting more evidence and weightier evidence to rebut the DCPP official's evidence.

Premier New Jersey DCP&P Representation

Your best move to protect your children in a disputed DCPP case is to retain a premier New Jersey criminal defense attorney who has extensive experience in DCPP cases. New Jersey DCPP defense attorney Joseph D. Lento has helped many clients successfully navigate DCPP protection cases for their best possible outcome. Trust attorney Lento to fight passionately for you and your relationship with your child or children. Call 888.535.3686 or go online now.

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Attorney Joseph D. Lento has more than a decade of experience practicing Family Law in New Jersey. If you are having any uncertainties about what the future may hold for you and your family, contact our offices today. Family Law Attorney Joseph Lento will go above and beyond the needs for any client and fight for what is fair.

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