New Jersey Division of Youth & Family Services v. M.R.

EICHEN, J.A.D.,

concurring.

I concur with my colleagues that appellant was entitled to a trial-type hearing before her name was included on the Central Registry as a “child abuser” and that the D.Y.F.S. determination must be reversed. I write separately because I disagree with both of my colleagues as to the appropriate basis for requiring such a hearing.

I conclude that appellant has not demonstrated a protectable liberty or property interest under the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. Although her interest in preserving her reputation is implicated by the inclusion of her name as a child abuser on the Central Registry, she has not demonstrated “any other tangible loss” to satisfy the “stigma plus” prong recognized in Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir.1994); see Doe v. Poritz, 142 N.J. 1, 102 , 662 A.2d 367 (1995). For example, she has not expressed either a present or future interest in adopting a child, acting as a foster parent, or obtaining employment in the child-care field. 1

Nonetheless, I conclude that under our State Constitution appellant has demonstrated a sufficient protectable interest in her reputation to justify a trial-type hearing. In Doe v. Poritz, supra, 142 N.J. at 104-05 , 662 A.2d 367 , our Supreme Court, in concluding that the New Jersey Constitution protects “the right of a *426 person to be secure in his reputation,” iterated the principle that, “where a person’s good name or reputation are at stake because of what the government is doing to that person, ... sufficient constitutional interests are at stake.” Ibid. It stated that:

Under the State Constitution, we find protectible interests in both privacy and reputation. Our analysis differs from that under the Federal Constitution only to the extent that we find a protectible interest in reputation without requiring any other tangible loss. In interpreting the State Constitution, we “look to both the federal courts and other state courts for assistance ... [but][t]he ultimate responsibility for interpreting the New Jersey Constitution ... is ours.” Greenberg [v. Kimmelman, 99 N.J. 552, 568 , 494 A.2d 294 (1985) ]. In fulfilling that responsibility, “we have generally been more willing to find State-created interests that invoke the protection of procedural due process than have our federal counter-parts.” New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 208 , 460 A.2d 103 (1983).

[Id. at 104, 662 A.2d 367 (emphasis added).]

Because I conclude that as a matter of state constitutional law, appellant’s “reputation” interest entitles her to a trial-type hearing before her name is included on the Central Registry, I find it unnecessary to apply the doctrine of fundamental fairness as a basis for requiring a hearing, especially in light of the Doe Court’s admonition that such doctrine be applied only sparingly. Id. at 108 , 662 A.2d 367 .

My colleagues strain to identify what, if any, "other tangible loss" beyond appellant’s reputation might be implicated in this appeal. I disagree that the potential loss of future employment is sufficient to satisfy the "stigma-plus" test of Valmonte . However, if federal constitutional law requires an additional interest to be coupled with appellant’s interest in her reputation, then perhaps "familial integrity and stability” could qualify as the other required interest; indeed, at least one federal circuit has so observed. See Bohn v. County of Dakota, 772 F.2d 1433 , 1436 n. 4 (8th Cir.1985).