On May 4, 2023, a three-judge appellate panel decided the Monmouth County case of DCP&P v. A.P. The principal issue under N.J.S.A. 2C:52-1 was whether the DCP&P could use the defendant’s expunged records in a child abuse case.
Judge Berdote Byrne wrote for the Court in relevant part: The criminal and civil proceedings in this case were based on the same incident, and the subject matter of the expunged criminal records “is the object” of the civil proceeding. Additionally, the Division presented “good cause” and “compelling need based on specific facts.” Specifically, twenty-three-month-old Daniel suffered severe head injuries while in the care of Arlo–injuries consistent with blunt-force trauma. In order to best protect the health, safety, and best interests of Daniel, the Division needed all relevant information from the MCPO, which conducted an investigation immediately after the incident occurred. As correctly recognized by the Family Part, without that information, the Division’s ability to protect Daniel–its sole objective–would be hamstrung.
That is not to say expunged records may be obtained and used in every Title 9 litigation. As N.J.S.A. 2C:52-19 clearly states, whether such records may be used should be considered on a case-by-case basis for compelling need based on specific facts and good cause shown. In this instance, several compelling factors weighed in favor of the release of the contested records, including: (1) the criminal and civil proceedings concerned the same incident and the expunged records were created immediately following the event; (2) the severity of Daniel’s injuries; and (3) Daniel’s age at the time of the incident. If Daniel had been thirteen years old, for example, and had suffered a leg injury instead of a head injury, then perhaps there would not be a compelling need for the records because Daniel would be able to provide his account of what had transpired. Likewise, expunged records of a prior injury to Daniel or another one of Arlo’s children may also not meet the exacting standard. However, because of Daniel’s age and the nature of his injury, the Division had limited avenues for information as to what transpired and established good cause for the expunged records.
Sweeping changes were made to expand expungement eligibility over the past three years. As a result, exceptions to expungements will likely become more common.