Although the typical matrimonial practitioner may not undertake Division of Child Protection and Permanency (“Division”) on a regular basis, we oftentimes face situations wherein a trial court, in a related matrimonial proceedings, determines Division investigations to be relevant to determinations of custody and parenting time before it. The recent case of DCP&P v. R.R., — N.J. Super. — (Mar. 19, 2018)(slip. Op. at 13), is an interesting new opinion that offers some guidance as to whether these types of investigations may be rendered reliable and when they may be challenged.

There, the subject father appealed from a finding of the Division following an investigation initiated at the request of a Family Part judge in a related matrimonial proceeding, that allegations he abused or neglected his daughter, E.R., were “not established.” In assessing whether to accord deference to such finding, the Appellate Division noted several omissions in the Division’s screening summary, including that the court’s concerns were inaccurately conveyed to the Division; the screening summary inaccurately identified the child involved; and, inaccurate details were recorded.

The Appellate Division ultimately concluded that the Division’s finding was “arbitrary and unreasonable, because the Division failed to consider essential documents and relevant facts,” including failing to obtain and review submissions in the matrimonial matter; or,  any testimony presented at the hearing on the return date. In so finding, the Court stated:

Although the record does not include these documents, it was incumbent upon the Division in this case to consider them as part of a reliable investigation…We recognize that the Division’s regulation governing “requirements for an investigation,” N.J.A.C. 3A:10-3.1, does not require review of relevant court documents. See also N.J.A.C. 3A:10-2.4 (evidence needed to support a finding). However, we cannot have confidence in an investigation – nor are we obliged to defer to the resulting finding – where the Division overlooked such relevant information under the circumstances of this case. Cf. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 386 (2013) (“failure to consider all evidence in a record would perforce lead to arbitrary decision making” and a “decision based on a complete misperception of the facts . . . would render the agency’s conclusion unreasonable”); see also Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001) (stating that an appellate court’s deference to an agency decision “is premised on our confidence that there has been a careful consideration of the facts in issue”).

Where to use this type of case: If a trial court determines a Division investigation to be of import to its underlying findings as to custody and parenting time without examining the quality of the investigation done, particularly where the Division’s finding lacks fair support in the investigatory record that the Division compiled.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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