Relaxed Evidentiary Requirements for New Jersey DCP&P Cases

Child protection and permanency cases in New Jersey have their own rules and procedures, including different evidentiary requirements than the usual criminal court case. New Jersey child protection cases also have their own enforcement authority making use of those rules. New Jersey's Division of Child Protection and Permanency, or DCPP, is the agency within the state's Department of Children and Families that investigates child abuse and neglect allegations, arranging for the child's protection in appropriate cases. The agency ostensibly protects the interests of both the child and the parents or family. But if you face child abuse or neglect allegations, DCPP is your effective opponent in the case. DCPP will gather abuse and neglect evidence, use it against you in your child protection case, and share it with prosecutors in the event of a related criminal case. The evidentiary rules for the DCP&P case, though, are much laxer than the evidentiary rules for a criminal court case. Prosecutors may have no admissible evidence that you abused or neglected your child, but DCPP officials could nonetheless remove your child on the basis of other evidence of abuse or neglect. Evidentiary rules thus make a big difference in the outcome of your DCP&P case.

Evidentiary Statute for New Jersey DCP&P Cases

A single New Jersey Statute 9:6-8.46 governing evidence in DCP&P cases opens a veritable floodgate of evidence in DCP&P cases that a criminal court would not admit under the usual evidence rules for criminal cases. This statute makes it much easier for you to lose your children in a DCP&P case than to suffer a criminal conviction in a related criminal court case in each of the following ways.

Evidence of Abuse or Neglect of One Child Can Prove Abuse of Other Children

New Jersey Statute 9:6-8.46 begins with a subsection a.(1) providing that "[i]n any hearing under this act, … 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…." Thus, in a DCP&P case, evidence that you abused or neglected one child would usually mean you will lose custody of and contact with all your children. Because of this evidence rule, DCP&P cases tend to be all-or-nothing fights. In a criminal court case, the prosecution would ordinarily have to prove abuse or neglect to each child, in each such case, beyond a reasonable doubt. New Jersey Statute 9:6-8:46a.(1) effectively reverses that presumption to favor DCPP removal of all children on a preponderance of the evidence of abuse of one child.

Evidence of Child Injury Can Prove Child Abuse or Neglect

New Jersey Statute 9:6-8.46 continues with subsection a.(2) admitting "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…." Injuries alone, of the type typical of abuse or neglect, are enough in a DCP&P case to prove the abuse and neglect without other corroborating evidence as to parents or guardians responsible for the child. In a criminal court case, the prosecution would need evidence to connect the injury to the parent or guardian beyond a reasonable doubt. New Jersey Statute 9:6-8.46a.(2) effectively reverses that requirement in DCP&P cases, connecting the parent or guardian without any evidence other than the injury alone.

Hospital and Other Records Can Prove Child Abuse or Neglect

New Jersey Statute 9:6-8.46 continues with subsection a.(3) admitting "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 hearing judge needs only to find that hospital or other agency staff made the record in the regular course of business. In a criminal court case, the trial judge would ordinarily bar, as hearsay, all kinds of statements in hospital and agency reports and records without having the person making those statements available in court for confrontation and cross-examination. New Jersey Statute 9:6-8.46a.(3) just lets the entire record in as evidence in DCP&P cases, hearsay and all.

Prior Statements of Children as Evidence of Present Abuse or Neglect

New Jersey Statute 9:6-8.46a.(4) next 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." In a criminal court case, a prior out-of-court statement made by a child or adult to prove the truth of what the statement said would ordinarily be hearsay. A child's prior out-of-court statement that "mommy or daddy hit me," for instance, would typically be inadmissible in a criminal court case. New Jersey Statute 9:6-8.46a.(4) effectively eliminates the hearsay rule in DCP&P cases for prior child statements, which could be the most damaging evidence.

A Lower Evidentiary Burden of Proof

New Jersey Statute 9:6-8.46b. also lowers the usual evidentiary burden of proof. In a criminal court case, the prosecution must prove each element of the charge beyond a reasonable doubt. Under New Jersey Statute 9:6-8.46b., the DCPP's burden is only a preponderance of the evidence: "In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted."

Court Rules in New Jersey DCP&P Cases

New Jersey Court Rules confirm and extend the above statutory relaxed treatment of evidence in DCP&P cases. Skilled and experienced attorney representation can definitely make a difference to your DCP&P case's outcome. You certainly stand a good chance of retaining custody with aggressive and effective representation. Skilled and experienced representation will be necessary to put in place an effective evidentiary defense from these court rules.

Proof on Record Rather than Testimonial Evidence

New Jersey Court Rule 5:12-1, applying to DCP&P civil court cases, also encourages the hearing judge to rely on record evidence rather than requiring oral testimony. Rule 5:12-1 provides in pertinent 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." A prosecutor in a criminal case would ordinarily have to use live, in-person testimony to prove each element of the criminal charge beyond a reasonable doubt. Under New Jersey Court Rule 5:12-1, DCP&P cases are often proven primarily or wholly on record evidence.

Suspension of Hearsay Rules

New Jersey Court Rule 5:12-4, titled "Case Management Conference, Hearings, Trial, and Termination of Parental Rights Proceedings," also confirms the effective suspension of the hearsay evidence rules for staff and consultant reports in DCP&P cases. Court Rule 5:12-4 provides: "The Division of Child Protection and Permanency … shall be permitted to submit into evidence, pursuant to NJRE 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal."

The two New Jersey hearsay evidence rules to which Court Rule 5:12-4 refers confirm the admissibility of DCPP staff reports. New Jersey Rule of Evidence 801(d) defines a business for which regularly kept records are admissible to include "every kind of business, institution, association, profession, occupation, and calling, whether or not conducted for profit, and also includes activities of governmental agencies." New Jersey Rule of Evidence 803(c)(6), titled "Records of a Regularly Conducted Activity," provides that these statements are admissible rather than excluded under the hearsay rule: "A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person if the writing or other record was made in the regular course of business and it was the regular practice of that business to make such writing or other record." These hearsay rules won't bar hospital records or staff and consultant reports in DCP&P cases.

Evidence Not Admissible in New Jersey DCP&P Cases

While the above New Jersey statutes, court rules, and evidence rules effectively open a floodgate of evidence in DCP&P cases and substantially lower the evidentiary burden, some evidence remains inadmissible in DCP&P cases. New Jersey Statute 9:6-8.46b.(2) provides that "only competent, material and relevant evidence may be admitted." The relaxed evidentiary rules and lower burden of proof don't mean that everything comes in. On the contrary, the basic tenets of evidence law restricting testimony and exhibits to relevant matters still apply. The hearing judge should exclude irrelevant evidence that might also be inflammatory and unduly prejudicial. Things having nothing to do with child abuse or neglect, like financial misconduct, bankruptcy, poor employment or social reputation, very old criminal convictions, or unsettled family relationships, should remain inadmissible. Witnesses must still have a factual basis for their testimony, meaning that the hearing judge should not permit them to guess, speculate, or conjecture. Your retained DCP&P defense attorney will still have substantial bases on which to object to evidence. The objections will just be on different grounds and against a lower bar.

Defense Attorney Services in DCP&P Evidentiary Disputes

The fact that more evidence and less reliable and trustworthy evidence will most likely get in for your DCP&P case just makes your skilled defense representation all the more important. Your retained DCP&P defense attorney should review with you all staff reports, consultant reports, and hospital records the DCCP officials pursuing your DCP&P case intend to offer as evidence so that you can identify what inaccurate information to challenge in those records. Hearing judges know how inaccurate records can be, but it is up to you and your retained attorney to point out the inaccuracies and correct them with stronger evidence. Your retained DCP&P defense attorney will help you build the strongest defense case to prove that whether your child or children show evidence of abuse or neglect or not, you were not involved in any such activities and were instead a good parent or guardian. Your defense case will need to show more than ever that the child or children are better off in your custody than in the removed, temporary care and custody of someone else.

Qualified DCP&P Defense Representation

The different evidentiary and court rules for DCP&P cases also mean that you need to retain a New Jersey criminal defense attorney who has substantial experience in DCP&P cases. Don't retain an attorney who only practices civil litigation or ordinary criminal defense. Instead, retain New Jersey DCP&P defense attorney Joseph D. Lento who has helped many clients successfully defend DCPP protection actions in these cases. Your care and custody of your child or children mean the world to you. Attorney Lento knows what you have at stake and is ready to fight for you. Call 888.535.3686 or go online now.

​​​Contact The Lento Law Firm Today

When it comes to criminal defense cases, you need the right person in your corner. To learn more about how Mr. Lento can help you, call the Lento Law Firm today at 888-535-3686. or contact him online.

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