Privacy in a DCPP Case
Confidentiality and its Limits if the Division of Child Protection and Permanency Opens a Case
If the Division of Child Protection and Permanency receives a report concerning child abuse or neglect, the agency is legally mandated to open up an investigation. To that end, the Division will create and maintain a large number of documents associated with the case. Moreover, the contents of the material will contain personal information about the child, the parents, the conditions of the family’s home, the extent of any injuries suffered by the child, and the nature of the investigation. On top of that, the Division file may also contain other reports such as police reports, criminal background checks, driver’s abstract, past DCP&P cases, medical records, photographs, and videos. In sum, the Division’s records will contain very personal information about a person’s family.
Is Information from a Child Protection Investigation Confidential in NJ?
The purpose of generating and keeping these documents is to aid the Division and potentially other agencies in the investigation. Furthermore, the material may also assist with counseling and other forms of treatment for the family. However, unlike a criminal case and even most civil matters, the documents produced by the state’s child protection agency must be kept private. Pursuant to New Jersey statute, N.J.S. 9:6-8.10a, DCP&P is legally required to keep all of its records confidential. Consequently, the public is not permitted to view any complaints, reports, findings, or any other similar documents about your case. As such, any employers, prying ex-spouses, probing neighbors, or the like, are prohibited from obtaining any information about your child abuse and neglect matter. Moreover, DCP&P matters are deemed so private that interested onlookers are prohibited from entering the courtroom. Under NJ Rules of Court, only the parties and their representatives can appear in court. For everyone else, the courtroom doors are closed.
The policy behind this blanket of privacy is mainly to promote two aims: (1) to protect children’s personal information from being disclosed and (2), to encourage citizens to notify DCPP if they believe there is a child abuse or neglect concern. Furthermore, New Jersey deems this privacy and confidentiality interest so compelling that it criminalizes the disclosure of any such information. Pursuant to the confidentiality statute, any person who willfully permits or encourages the release of such records may be found guilty of a misdemeanor offense and subject to a fine of not more than $1,000.00, and may also be sentenced to prison for up to three years.
Expectation of Privacy in NJ DCPP Matters
Under New Jersey law, parents are granted and should expect that their private affairs with the Division of Child Protection and Permanency will remain private. This is in contrast to other areas of the law. For instance, if you are arrested and subsequently charged with a criminal offense, the records associated with that case are open to the public. The complaint, which states the nature of the charges, can be viewed by the community. An individual’s judgment of conviction and sentencing report can be reviewed. Also, the public can usually visit the court and watch the proceedings. Likewise, in civil cases, the public is permitted to read any complaints or motion filed and may also attend court to personally see and hear the case. For major cases that attract local or even national attention, it is common for news sources to attend court and report about the case in newspapers and on television. Their reporting and publications are completely lawful and can be done without the parties’ consent.
However, with respect to DCP&P cases, the same access to information is prohibited. The State’s interest in protecting the privacy of children and encouraging citizens to report abuse outweighs the public’s interest in accessibility to such information. Thus, if you are under investigation or involved in a court matter with child protective services, you should expect a very high level of privacy.
When Child Abuse & Neglect Information is not Private in New Jersey
Child Abuse Treatment and Prevention Act Exception
Nevertheless, the laws and rules surrounding confidentially in child abuse cases are not absolute. There are a few instances where the public’s interest in certain private information is paramount and therefore, it outweighs any other interests promoted by the state’s privacy laws. One major exception is the Child Abuse Treatment and Prevention Act, which is a federal law that requires child welfare agencies like DCP&P, to release information regarding the fatality or near fatality of a child to the public. Under those circumstances, the Division will publish a report that can be viewed on their website discussing the cause of the death or near death of a child. Other public agencies can likewise request further information about the incident.
Under the Child Abuse Treatment and Prevention Act, parents do not have the same rights and protections concerning their privacy. Unlike a more common abuse or neglect case, the public has a more compelling and stronger interest in knowing the details of the case. Generally, most investigations do not rise to such an extreme level and any harm suffered by the child can be somewhat cured. If a child dies, on the other hand, there is obviously nothing that can be done. As a result, the importance of disclosure surpasses the family’s privacy interests because the State has an overwhelming interest in ensuring that such conduct does not happen again, and minor children are not exposed to the parents.
Limited Exception for Substantiated Case Decisions
Another major exception to the prohibition on disclosing DCP&P records is a substantiated finding. When DCP&P concludes its investigation, it renders a decision or “finding” whether the parents committed an act of child abuse or neglect. A substantiated finding means that the Division not only determined that the parents did commit an act of abuse or neglect, but there was also an aggravating factor present such as death, sexual assault, a serious injury, or repeated conduct. Since the conduct was deemed severe, the findings are registered in the Child Abuse Record Information (CARI) database and certain agencies can view the database.
Similar to the Child Abuse Treatment and Prevention Act, the public has a very strong and compelling interest in ensuring that children are protected against abusive parents. Therefore, the private information listed in the database can be viewed by others. However, unlike the Act, the disclosure is not completely open to the public and in fact, the substantiated finding can only be viewed by a specific set of agencies that are granted access. With that in mind, a substantiated finding can be viewed by others but broadly speaking, the public cannot see it.
Need a Court Order to Release Records
Another exception to viewing confidential records is through a court order. Again, the Division’s files are deemed confidential. This classification is made to pursuant to statute, N.J.S.A. 9:6-8.10a, which expressly states: “all child abuse reports, all information obtained by the Department of Children and Families in investigating a claim, and all reports of findings forwarded to the central registry, shall be kept confidential.” However, the statute further reads that such records may be disclosed to the court or the Office of Administrative Law if access to such findings may be necessary to determine an issue before the court.
Typically, this situation arises when an individual is involved in a court proceeding, while also being investigated by DCF. For example, if a criminal defendant is being accused of endangering the welfare of a child and he or she is also under investigation by the Division. The records contained in the DCPP file may contain very important information about the criminal case and therefore, the defendant may be able to review the material. However, the records are not automatically turned over. The statute does not say it can be viewed by defendants or their attorneys. The defendant must first file a motion. Next, the file is released to the Judge for his or her review. Thereafter, if the Court determines that the Division’s file contains important information, it may be disclosed to the parties.
A court ordered release of the records is different from the statutory releases because the principal interest is not safety but rather, due process and fundamental fairness to the accused. If the Division’s file contains exculpatory evidence that could exonerate a person, access to such information outweighs the child’s interests in privacy and State’s interest in encouraging reporting.
Have Privacy Concerns Related to a DCPP Case? Contact Us for Immediate Assistance
If you are someone you love is being contacted, investigated, pursued, or prosecuted and you have concerns about your privacy in a DCF related case, please contact our office at (908)-356-6900 for immediate assistance. Our lawyers are available to answer your questions and address your concerns about confidentiality and what we can do to preserve and protect your best interests. We represent all manner of defendants facing probes by DCP&P in Bergen, Passaic, Hudson, Middlesex, and Ocean Counties, and across New Jersey. Just call or send us a message to get a free consultation with an attorney.