The New Jersey Supreme Court issued an opinion last week signaling concerns with the Department of Children and Families’ use of the “not established” finding, agreeing with the New Jersey State Bar Association’s (NJSBA) amicus curiae arguments. In the matter of S.C. v. New Jersey Department of Children and Families, Docket No. A-57-18, the Supreme Court held that the standard for a finding of “not established” is “vague, amorphous, and incapable of any objective calibration,” because it requires less than a preponderance of the evidence and only requires “some” evidence.
In a majority opinion by Justice Jaynee LaVecchia, the Court said, “All we know is that [the “not established” finding] requires less than a preponderance of the evidence and involves ‘some’ evidence. At the very least, the ‘some evidence’ description advanced by the Department must be understood to be ‘credible evidence.’ Beyond that one cannot know what the Department intends by its standard and how it is to be evaluated.”
