New Jersey Division of Child Protection and Permanency , 448 N.J. Super. 374 ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0586-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
February 1, 2017
v. APPELLATE DIVISION
V.E.,
Defendant-Appellant.
__________________________________
IN THE MATTER OF R.S., a minor.
__________________________________
Argued December 1, 2016 - Decided February 1, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen
County, Docket No. FN-02-179-15.
Deric Wu, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Mr. Wu,
on the brief).
Christian A. Arnold, Assistant Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Jill N.
Stephens-Flores, Deputy Attorney General, on
the brief).
Noel C. Devlin, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Mr. Devlin, on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Defendant V.E., the mother of R.S. now age nine, challenges
an order dismissing a Title 9 action filed by plaintiff the New
Jersey Division of Child Protection and Permanency (Division),
prior to an evidentiary hearing. The Division issued an
administrative "established" finding of abuse or neglect against
V.E., who was not afforded an administrative hearing to
challenge the determination.1 She sought to contest the
Division's finding before the Superior Court in this matter.
However, over V.E.'s objection, the Family Part judge granted
the Division's motion to dismiss the Title 9 litigation.
On appeal, V.E. argues due process and fundamental fairness
mandate she be granted an evidentiary hearing to contest the
Division's finding child neglect was "established." She
maintains the court erred when it dismissed the Title 9 action
without considering her challenge to the finding.
1
The action also involved A.S., the child's father.
However, he has not appealed and therefore we limit our
discussion to V.E.'s challenges.
2 A-0586-15T4
Following our review, we conclude the court did not abuse
its discretion in dismissing the Title 9 action. However,
because an established finding is a finding of child abuse or
neglect under N.J.S.A. 9:6-8.21(c)(4), subject to disclosure as
permitted by N.J.S.A. 9:6-8.11a(b) and other statutes, due
process considerations require a party against whom abuse or
neglect is established be afforded plenary administrative
review. The agency's denial of an administrative hearing is
reversed.
I.
At the time of the Division's involvement, A.S., V.E. and
R.S. resided on the first floor of a two-family home located in
Hackensack. The residence was owned by A.S., who was V.E.'s
partner and R.S.'s father. According to V.E., there were three
families residing in the residence. In addition to her family,
and a family living on the second floor, V.E. told police "[two]
unknown Hispanic males in their 30s . . . live[d] in the
basement."
On December 22, 2014, a kitchen grease fire erupted on the
second floor of the dwelling. At the time, V.E. was in her
apartment, A.S. was out of state working, and R.S. was attending
an after-school program. When concerns arose regarding a
possible gas leak, the fire department forcibly entered the
3 A-0586-15T4
basement through a back door. While searching for the gas line,
firemen forced open an inside basement door and discovered two
rooms containing "a very large quantity of [c]annabis [p]lants."
A report authored by Officer Pedro Dominguez of the
Hackensack Police Department stated when he reviewed the scene
with the fire department, he "immediately smell[ed] the
overwhelming odor of raw marijuana emanating in the back yard
area of the home." Officer Dominguez described the basement's
"sophisticated . . . growing operation," which included a
makeshift irrigation system, fans, fluorescent lights, and heat
lamps. The entire building was evacuated after the Hackensack
Building Department condemned the structure because of the
possible gas leak and an "unsafe overload of the electric
panel."
Narcotics Detective Alexander Lopez-Arenas took over the
criminal investigation. He noted the "entire home smelled like
marijuana" and valued the growing operation at approximately
$2,000,000.
V.E. was charged with child endangerment and various drug-
related offenses. She was detained in the county jail. A.S.
was not located; a warrant for his arrest was issued. The
4 A-0586-15T4
Division exercised an emergency removal of R.S., who was placed
with his Godmother.2
On December 26, 2014, the Division filed a verified
complaint for custody to protect the best interests of R.S.,
pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The court
upheld the emergency removal and R.S.'s placement outside his
home. The resultant order granted the Division legal and
physical custody of the minor and contained provisions for
supervised visitation, substance abuse evaluations, and random
urine screenings for both parents.
On December 23, 2014, the Division's investigation
commenced with V.E.'s interview. She denied knowledge of the
growing operation and explained her basement access was limited
to using the laundry room. Further, she asserted R.S. never
entered the basement. V.E. insisted she knew nothing of drugs
in her home and stated she was very confused by the police
action.
2
The Division's removal of a child without a court order,
commonly called a "Dodd removal," is authorized by the Dodd Act,
which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. "The
Act was authored by former Senate President Frank J. 'Pat' Dodd
in 1974[,]" for whom it was named. N.J. Div. of Youth & Family
Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div.
of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2
(App. Div. 2010)).
5 A-0586-15T4
The Division later communicated with A.S. by cell phone.
He reported a man named "Jose" rented the basement apartment.
A.S. maintained he had not been in the basement "for over a
year" and denied knowledge of drugs in his home. He insisted
neither V.E. nor R.S. knew of the marijuana growing operation.
Although A.S. stated he was returning to New Jersey that evening
and would report to police, he did not do so and his exact
whereabouts remained unknown.
The Division also spoke to R.S., who appeared "happy and
talkative" during his interview. R.S. stated he lived with his
parents, an adult sibling, and his grandparents. R.S. confirmed
two of A.S.'s friends lived in the basement, and explained he
only entered the laundry area with V.E. R.S.'s responses
reflected he had no knowledge of drugs in the home and never saw
plants in the basement.
The Division also (1) interviewed R.S.'s Godmother, her
household members, and V.E.'s adult son, who attended college in
Maine; (2) reviewed R.S.'s medical and school records; (3)
considered police reports; and (4) viewed photographs of the
crime scene depicting "multiple rooms in the basement of the
home with hundreds of marijuana plants growing at different
stages of development," "many haphazardly placed wires, lighting
6 A-0586-15T4
system and an irrigation system throughout the basement" along
with a security system with a video monitor.
Once completed, the Department of Children and Families
(Department) "Investigation Summary" issued findings and
concluded "substantial risk of injury and environmental neglect"
was "established" against V.E. and A.S. Noting V.E. was
incarcerated on charges of "possession of marijuana,
maintaining/operating CDS production/facility, fortified
structure for dispensing drugs, hindering apprehension [by
uttering] false infor[mation], and endangering the welfare of a
child," the Department stated R.S.
was placed [at] a substantial risk of harm
as the home [where] he was residing was
condemned for illegal wiring which was used
to conduct an elaborate, illegal marijuana
growing operation complete with an
irrigation system, security cameras and
lighting.
The Division released this report to V.E.'s attorney during
a February 19, 2015 case management hearing and informed the
judge its investigation "established" neglect against both
parents. The Division then proposed to dismiss the Title 9
complaint to proceed solely under Title 30. V.E. objected,
arguing:
[W]e are objecting to the Division's request
for a dismissal of the Title 9, since we do
want an opportunity for a fact finding, and
we do want an opportunity to have the
7 A-0586-15T4
Division put forth their proofs, and
indicate a specific reason and prove by a
preponderance of the evidence that this
child is an abused [or] . . . neglected
child.
The judge denied V.E.'s request for a hearing, reasoning a
hearing was not warranted since the Division was "not asking the
court to make that finding" of abuse or neglect under Title 9.
The judge further stated the "established" finding would not
require either parents' name to be added to the central
registry. She ordered the Title 9 action dismissed without
prejudice. The litigation continued pursuant to N.J.S.A. 30:4C-
12.
Thereafter, V.E. stipulated there was a need for continued
services extended by the Division and waived her right to a
summary hearing.3 Physical custody of R.S. was returned to V.E.,
with the Division continuing care and supervision. On August
18, 2015, the court terminated the litigation. The final order
stated it was safe for R.S. to return to the joint legal and
physical custody of V.E. and A.S. This appeal followed.
3
V.E. attended a psychological examination and all random
urine screens were negative, obviating substance abuse
treatment.
8 A-0586-15T4
II.
A.
Our review of a Family Part order is limited. We give
substantial deference to the Family Part's findings of fact,
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), "when supported
by adequate, substantial, credible evidence." Finamore v.
Aronson, 382 N.J. Super. 514, 519 (App. Div. 2006) (quoting
Cesare, supra, 154 N.J. at 412). Reversal is warranted if there
is insufficient evidentiary support for the trial judge's
findings, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 279 (2007), or if the stated findings are "so manifestly
unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of
justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65
N.J. 474, 484, (1974). On the other hand, our review of a trial
judge's legal conclusions remains de novo. Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
B.
"The primary concern of all public agencies involved with
abuse and neglect is to ensure the safety, well-being, and best
interests of the child." N.J.A.C. 3A:10-1.4.4 "Other
4
The Department of Children and Families has recodified
certain regulations relevant to abuse and neglect
(continued)
9 A-0586-15T4
considerations, such as the objective of maintaining family
integrity, promoting family functioning or the concern for
traditional 'parental rights,' are secondary." Ibid.
Relevant to the instant appeal, the Legislature has defined
an abused or neglected child as
a child less than 18 years of age
. . . whose physical, mental or emotional
condition has been impaired or is in
imminent danger of becoming impaired as the
result of the failure of his parent or
guardian . . . to exercise a minimum degree
of care . . . in providing the child with
proper supervision or guardianship, by
unreasonably inflicting or allowing to be
inflicted harm, or substantial risk thereof
. . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
Not every harm or risk of harm is of such a serious nature
to cause a child to become an abused or neglected child. Only
(continued)
investigations. See 49 N.J.R. 98(a) (January 3, 2017) ("The
Department of Children and Families requested, and the Office of
Administrative Law agreed to permit, the administrative
recodification of the Department's rules from Title 10, Human
Services, to the newly created Title 3A, Children and Families,
of the New Jersey Administrative Code."). The Notice of
Administrative Changes noted the recodified chapters and
technical changes were effective January 3, 2017, but it was
"anticipated that approximately two to four chapters will be
recodified with each Code Update produced." Ibid. Where
applicable we cite the recodified regulations. The Notice
included a table, which set forth "the Title 10 chapters being
recodified along with their chapter headings and new Title 3A
codification." Ibid. For example, N.J.A.C. 3A:10-1.4 was
formerly N.J.A.C. 10:129-7.7(a).
10 A-0586-15T4
conduct that is "grossly or wantonly negligent" constitutes
failure to "exercise a minimum degree of care" under N.J.S.A.
9:6-8.21(c)(4). L.A. v. N.J. Div. of Youth & Family Servs., 217
N.J. 311, 332 (2014). Thus, it is not inconsistent to find a
child was placed at risk of harm and yet was not abused or
neglected.
The Department oversees the Division and is charged with
the prompt investigation of allegations of child abuse or
neglect. N.J.S.A. 9:6-8.11.5 See also N.J.A.C. 3A:10-2.1.
"[The Department] has broad authority to investigate allegations
of child abuse." In re L.R., 321 N.J. Super. 444, 449 (App.
Div. 1999). The "grant of authority to an administrative agency
is to be liberally construed in order to enable the agency to
accomplish its statutory responsibilities and . . . the courts
should readily imply such incidental powers as are necessary to
effectuate fully the legislative intent." N.J. Guild of Hearing
Aid Dispensers v. Long, 75 N.J. 544, 562 (1978).
After receiving a referral regarding possible child abuse
or neglect, the Department follows the defined child protection
investigation process, as authorized by N.J.S.A. 9:6-8.11 and
promulgated regulations, N.J.A.C. 3A:10-7.3(b). The
5
N.J.S.A. 9:6-8.11 designates the Division as the
representative in the Department to investigate child abuse or
neglect.
11 A-0586-15T4
investigation is designed to assess and assure a child's health
and safety, while the Division gathers evidence regarding the
child's condition, obtains statements from the child, interviews
alleged perpetrators or other witnesses, requests available
police reports, and consults with medical and educational
professionals. N.J.A.C. 3A:10-2.4; N.J.A.C. 3A:10-3.1 to -3.3.
The evidence specific to each allegation must be evaluated to
determine whether abuse or neglect has occurred, making "every
reasonable effort to identify the perpetrator for each
allegation of abuse or neglect." N.J.A.C. 3A:10-7.3(a).
The investigation must be completed and a report issued
within seventy-two hours. N.J.S.A. 9:6-8.11. Once completed,
the Department must "notify the alleged perpetrator and others
of the outcome of its investigation." Dep't of Children &
Families v. D.B., 443 N.J. Super. 431, 441-42 (App. Div. 2015)
(quoting In re Allegations of Sexual Abuse at E. Park High Sch.,
314 N.J. Super. 149, 155 (App. Div. 1998)).
The statutory and regulatory framework also delineates the
authorized actions with respect to any findings. The
Department, through the Division, may take both administrative
and judicial action. Div. of Youth & Family Servs. v. D.F., 377
N.J. Super. 59, 64 (App. Div. 2005). Thus, concurrent review of
the Division's findings of abuse or neglect may be undertaken.
12 A-0586-15T4
When a child is removed from his or her home and when the
Division concludes it must provide services to the abused or
neglected child, which would also include services to aid the
parents, its only recourse is to file a protective services
complaint in the Family Part. N.J.S.A. 9:6-8.22. "The
objective of such an action is 'the immediate protection of' the
abused or neglected child." D.F., supra, 377 N.J. Super. at 67.
In such a proceeding, the Division is obliged to prove the child
was abused or neglected by "preponderance of the evidence, and
only through the admission of 'competent, material and relevant
evidence.'" P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A.
9:8.46(b)). If the Division satisfies its burden, the court may
enter appropriate orders to protect the child. See, e.g.,
N.J.S.A. 9:6-8.31(b) (awarding temporary custody of the child to
a "suitable person"); N.J.S.A. 9:6-8.55 (permitting court to
enter appropriate orders of protection). When the Division opts
to proceed in the Family Part, it often accompanies its
complaint for custody, care and supervision of the child under
N.J.S.A. 9:6-8.21 to -8.82, with a claim the family is in need
of services under N.J.S.A. 30:4C-12.
However, there are circumstances where the Division
investigates an incident administratively and concludes a person
committed child abuse or neglect, as defined by N.J.S.A. 9:6-
13 A-0586-15T4
8.21(c)(4), forwards the perpetrator's name to the child abuse
registry, N.J.S.A. 9:6-8.11, but does not seek further relief.
In other words, if the Division administratively concludes a
child has been abused or neglected, it need not also file a
complaint in the Superior Court.
In the past, the administrative findings of child abuse or
neglect were categorized as "substantiated," "not
substantiated," or "unfounded." However, effective April 1,
2013, the Department adopted a regulatory framework providing it
could render one of four findings at the conclusion of an abuse
or neglect investigation. N.J.A.C. 3A:10-7.3(c). Now, the
Division may conclude an abuse or neglect allegation is:
"substantiated," "established," "not established," or
"unfounded." N.J.A.C. 3A:10-7.3(c).
The regulations explain:
1. An allegation shall be "substantiated"
if the preponderance of the evidence
indicates that a child is an "abused or
neglected child" as defined in N.J.S.A. 9:6-
8.21 and either the investigation indicates
the existence of any of the circumstances in
N.J.A.C. 3A:10-7.4 or substantiation is
warranted based on consideration of the
aggravating and mitigating factors listed in
N.J.A.C. 3A:10-7.5.
2. An allegation shall be "established" if
the preponderance of the evidence indicates
that a child is an "abused or neglected
child" as defined in N.J.S.A. 9:6-8.21, but
the act or acts committed or omitted do not
14 A-0586-15T4
warrant a finding of "substantiated" as
defined in (c)1 above.
3. An allegation shall be "not
established" if there is not a preponderance
of the evidence that a child is an abused or
neglected child as defined in N.J.S.A. 9:6-
8.21, but evidence indicates that the child
was harmed or was placed at risk of harm.
4. An allegation shall be "unfounded" if
there is not a preponderance of the evidence
indicating that a child is an abused or
neglected child as defined in N.J.S.A. 9:6-
8.21, and the evidence indicates that a
child was not harmed or placed at risk of
harm.
[N.J.A.C. 3A:10-7.3(c).]
In evaluating information gathered, the Department
considers the following "aggravating factors" to determine
whether abuse or neglect should be substantiated or established:
1. Institutional abuse or neglect;
2. The perpetrator's failure to comply
with court orders or clearly established or
agreed-upon conditions designed to ensure
the child's safety, such as a child safety
plan or case plan;
3. The tender age, delayed developmental
status, or other vulnerability of the child;
4. Any significant or lasting physical,
psychological, or emotional impact on the
child;
5. An attempt to inflict any significant
or lasting physical, psychological, or
emotional harm on the child;
15 A-0586-15T4
6. Evidence suggesting a repetition or
pattern of abuse or neglect, including
multiple instances in which abuse or neglect
was substantiated or established; and
7. The child's safety requires separation
of the child from the perpetrator.
[N.J.A.C. 3A:10-7.5(a).]
Additionally, the following mitigating factors are
assessed:
1. Remedial actions taken by the alleged
perpetrator before the investigation was
concluded;
2. Extraordinary, situational, or
temporary stressors that caused the parent
or guardian to act in an uncharacteristic
abusive or neglectful manner;
3. The isolated or aberrational nature of
the abuse or neglect; and
4. The limited, minor, or negligible
physical, psychological, or emotional impact
of the abuse or neglect on the child.
[N.J.A.C. 3A:10-7.5(b).]
A "substantiated" finding applies to the most severe cases,
and specifically results in matters involving death or near
death, inappropriate sexual conduct, serious injuries requiring
significant medical intervention, or repeated acts of physical
abuse. N.J.A.C. 3A:10-7.4. Although an "established" finding
of abuse or neglect appears to apply to less egregious conduct,
regulations make clear "[a] finding of either established or
16 A-0586-15T4
substantiated shall constitute a determination by the Department
that a child is an abused or neglected child pursuant to
N.J.S.A. 9:6-8.21." N.J.A.C. 3A:10-7.3(d) (emphasis added).
See D.B., supra, 443 N.J. Super. at 442. Conversely, "[a]
finding of either not established or unfounded shall constitute
a determination by the Department that a child is not an abused
or neglected child pursuant to N.J.S.A. 9:6-8.21." N.J.A.C.
3A:10-7.3(d).
The Division asserts an established finding is used to
denote less severe conduct, and maintains the gradation of
findings permits the "records to better reflect the
circumstances of an investigation" and "allow the Division to
distinguish between incidents of abuse and neglect," identifying
the most severe as "substantiated and subject to a Child Abuse
Record Information (CARI) check." 44 N.J.R. 357(a) (Feb. 21,
2012). Thus, the regulatory differentiation between the
"substantiated" and "established" findings appears to be a
question of the degree of harm and, possibly, the strength of
the gathered proofs.
III.
On appeal, raising issues of procedural due process and
fundamental fairness, V.E. urges us to determine an established
finding essentially places her in the same legal position as a
17 A-0586-15T4
substantiated finding. She insists the report and record makes
her subject to the adverse consequences of disclosure of the
Division's abuse finding, yet she was denied the right to
contest the determination in an adjudicatory forum.
The Division admits defendant's name and its report of
established child abuse are in its database, but maintains V.E.
is not included in the "central abuse registry," which is a
reporting the Division reserves solely for substantiated
findings. Further, the Division admits disclosure of an
established finding is authorized in more limited circumstances
than a substantiated finding. Relying on that distinction, the
Division asserts its established finding amounts to nothing more
than an investigatory determination, for which no adjudicatory
review is required.
The Law Guardian for R.S. asserts the child's safety and
security were properly protected in the continued Title 30
action. Thus, the Law Guardian supports the dismissal of the
Title 9 action, and suggests administrative review is more
appropriate to challenge an established finding. Alternatively,
the Law Guardian suggests this court could order a remand to
develop the record.
18 A-0586-15T4
A.
"An administrative agency's interpretation of statutes and
regulations within its implementing and enforcing responsibility
is ordinarily entitled to our deference." Wnuck v. N.J. Div. of
Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting
In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93,
102 (App. Div. 1997)). We recognize "[a]n agency's exercise of
its statutorily delegated responsibilities is entitled to a
strong presumption of reasonableness and our court will
generally defer to that agency's expertise and superior
knowledge in the field." D.B., supra, 443 N.J. Super. at 443.
"Although we recognize that deference is generally given to an
administrative agency charged with interpretation of the law, we
are not bound by the agency's legal opinions." Levine v. State,
Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)
(citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 170
(1999)).
B.
We start our review by examining the relevant statutes.
The Legislature has directed the Department maintain a child
abuse registry, which "shall be the repository of all
information regarding child abuse or neglect that is accessible
to the public pursuant to State and federal law." N.J.S.A. 9:6-
19 A-0586-15T4
8.11 (emphasis added). The statute does not differentiate
between the type of abuse or neglect findings; rather, such
designations are regulatory.
We understand all records for which abuse and neglect has
been "substantiated," "established," or "not established" are
retained by the Department. N.J.A.C. 3A:10-8.1(b). See D.B.,
supra, 443 N.J. Super. at 442. Further, the Department does not
isolate those matters where abuse or neglect was substantiated.
Rather, one database contains all information regarding
investigations of child abuse or neglect. N.J.A.C. 3A:10-
7.3(d). Although a regulation limits disclosure of
"substantiated" findings when a CARI check is required, we
locate no specific insulation from the child abuse registry for
individuals against whom abuse and neglect is established, other
than the Division's assurances. N.J.A.C. 3A:10-7.7(a) ("A
Department employee shall disclose only substantiated findings
for a . . . (CARI) check.") But see 45 N.J.R. 738(a) (April 1,
2013) (stating the Division will not disclose "established"
findings). We reject the contention that the regulations'
purported limitations can restrict the clear scope of disclosure
authorized by N.J.S.A. 9:6-8.10a(b).
The information in the child abuse registry is not public
information, as it is considered confidential. N.J.S.A. 9:6-
20 A-0586-15T4
8.10a(a); N.J.S.A. 9:6-8.11.6 However, N.J.S.A. 9:6-8.10a(b)
expressly authorizes release of abuse or neglect records upon
written request to designated persons and entities. A lengthy
list of institutions, governmental entities, and persons to whom
the Division may release information contained in the registry
regarding any finding of abuse or neglect is set forth in
N.J.S.A. 9:6-8.10a(b)(1) to (23), -8.10a(c) to (g). Under the
statute, disclosure is not limited solely to perpetrators of
substantiated findings of abuse or neglect, subject to a CARI
check. Even though N.J.A.C. 3A:10-7.7(a) restricts Department
employees' disclosure of only substantiated findings when a CARI
check is requested,7 that regulation does not encompass all
authorized disclosures of abuse and neglect findings.
In a prior matter, this court observed, subject to the
statute's confidentiality requirements, the Division is
empowered to disclose "all information" from its investigations
of abuse or neglect "regardless of whether the allegations are
substantiated and whether . . . the information has been entered
6
Violation of the confidentiality restrictions as defined,
may result in prosecution. N.J.S.A. 9:8-10b.
7
We also note a CARI check is required in connection with
employment-related background screenings, D.B., supra, 443 N.J.
Super. 442; N.J.A.C. 3A:10-7.7(a), and for applications seeking
to serve as a foster or adoptive parent. N.J.A.C. 10:122C-
5.5(a)(1). An established finding would not be revealed for
these purposes.
21 A-0586-15T4
in the Central Registry." N.J. Div. of Youth & Family Servs. v.
M.R., 314 N.J. Super. 390, 402 (App. Div. 1998). Cf. N.J. Div.
of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App.
Div. 2004) (The scope of "[p]ermissible disclosure of names
contained in the Central Registry . . . is . . . extensive."),
certif. denied, 182 N.J. 426 (2005).
In many instances, the authorized disclosure relates to an
investigation of abuse or neglect conducted by police, doctors,
hospitals, the Office of Administrative Law, grand juries, and
the courts. N.J.S.A. 9:6-8.10a(b)(2), (3), (4), (6), (7). See
also N.J. Dep't of Children & Families, Div. of Child Prot. and
Permanency v. E.D.-O., 223 N.J. 166, 170 n.2 (2015) ("The
records may be disclosed to physicians, courts, child welfare
agencies, and certain employers.").
However, disclosure as authorized by the Legislature is not
as circumscribed as the Division suggests. Information may be
released: to "[a] family day care sponsoring organization for
the purpose of providing information on child abuse or neglect
allegations involving prospective or current providers or
household members," N.J.S.A. 9:6-8.10a(b)(10), N.J.S.A. 30:5B-
25.2; to any person or entity which must conduct a background
check or employment providing services to children that screens
for child abuse or neglect, N.J.S.A. 9:6-8.10a(b)(13), (14); or
22 A-0586-15T4
regarding a person being evaluated as a possible caregiver for a
child in the Division's care, N.J.S.A. 9:6-8.10a(b)(16). The
records may be released when a person seeks registration as a
professional guardian, N.J.S.A. 9:6-8.10e, licensure for a
daycare facility, N.J.S.A. 30:5B-25.3; qualification to provide
kinship care, N.J.A.C. 10:122C-2.1(e);8 and persons seeking to
adopt, N.J.S.A. 9:3-54.2(b).
A prior finding of abuse or neglect may be used by the
Division to determine an individual's suitability as a
prospective child care placement of children in other public and
private agencies, N.J.S.A. 30:5B-25.3, and "facts of those prior
acts of abuse apparently are considered by [Division]
representatives when determining whether future allegations are
'substantiated' based on a pattern of abuse," Fall & Romanowski,
N.J. Family Law, Relationships Involving Children § 30:7-1
(2015). "Finally, and perhaps most significantly, an abuse or
neglect finding may provide a basis for an action to terminate a
parent's custodial rights to a child. N.J.S.A. 30:4C-15(a)
(allowing petition to terminate parental rights based on
8
According to the January 3, 2017, Notice of Administrative
Changes, N.J.A.C. 10:122C was recodified to N.J.A.C. 3A:51.
However, as of the publication of this opinion, the
recodification is not yet manifested in the Code itself.
23 A-0586-15T4
adjudication of abuse or neglect)." N.J. Div. of Child Prot. &
Permanency v. Y.N., 220 N.J. 165, 179 (2014).
In D.B., this court noted the Division's stated distinction
between substantiated and established findings, but we were not
requested to squarely decide the impact of such an established
finding because our examination in D.B. involved the right of
the defendants-teachers to challenge the communication to their
employer of the Department's findings "child abuse charges have
not been substantiated." D.B., supra, 443 N.J. Super. at 431
(emphasis added). The defendants argued "N.J.A.C. 10:129-8.1
[now at N.J.A.C. 3A:10-8.1], which allows the Department to
retain unproven accusations forever is a violation of N.J.S.A.
9:6-8.40a."9 Id. at 444. We rejected this argument and
concluded
the interest of retaining information about
alleged claims of abuse, where some cause
for concern is demonstrated, is within the
mandate given to the Department to protect
children from abuse. The records retained
for "substantiated" allegations are the only
ones made public, thus [the defendants] have
a lesser due process right in regard to
information kept for the use of the agency
and entities involved in the protection of
children.
9
"The Division . . . shall expunge from its records all
information relating to a report, complaint, or allegation of an
incident of child abuse or neglect . . . which the division
. . . has determined . . . unfounded." N.J.S.A. 9:6-8.40a(a).
24 A-0586-15T4
[Ibid.]
Our reasoning in D.B. was grounded on the specific
investigatory nature of the agency's conclusion. Understanding
the Division is granted broad authority to investigate child
abuse allegations, we determined its release of reported
unsubstantiated findings to the defendants' employer did not
require the same procedural protections mandated by an
adjudicatory proceeding. D.B., supra, 443 N.J. Super. at 446-
47. See also Dep't of Children & Families' Institutional Abuse
Investigation Unit v. S.P., 402 N.J. Super. 255, 270 (App. Div.
2008) ("[A] teacher is not entitled to an adjudicatory hearing
to challenge a finding . . . child abuse allegations are not
substantiated, even when DYFS has expressed 'concerns' about a
teacher's conduct because such a finding is 'intrinsically less
damaging to reputation than a finding that child abuse charges
have been substantiated.'") (quoting In re L.R., supra, 321 N.J.
Super. at 460; In re L.R., supra, 321 N.J. Super. at 449) ("We
also conclude that when DYFS submits a report to a school
district that it has found a charge of child abuse against a
teacher to be 'not substantiated with concerns,' the teacher has
no right to a hearing to contest DYFS' investigatory
findings.").
25 A-0586-15T4
Here, the Division similarly suggests its established
finding is a mere "investigatory finding made solely by the
Division and not for disclosure to third parties." We disagree.
Although the regulations provide some differentiation in
the level of disclosure between individuals against whom abuse
or neglect is "established" and those against whom abuse and
neglect is "substantiated,"10 we conclude there is broad impact
accompanying an established finding, which significantly affects
an individual against whom it is issued. The effect of a
finding that abuse and neglect is established is much closer to
the effect of a substantiated finding than a not substantiated
finding.
As we have observed, despite the Division's interpretation
of promulgated regulations, N.J.S.A. 9:6-8.10a(b) and other
statutes allowing release of records, findings, and reports of a
person found to commit child abuse or neglect or who put a child
at risk of serious injury or harm do not exclude from the
disclosure the "less severe" established finding of child abuse
10
We are aware N.J.A.C. 3A:10-7.6, which mandates the
Department's obligation to issue notification of its findings of
abuse or neglect to a perpetrator, an abused or neglected child,
the child's parents or guardians, and others, restricts
notification to include persons regarding substantiated abuse or
neglect findings. The regulation, which pre-dates the 2013
amendments, does not mention an obligation to notify those
involved in matters resulting in established findings.
26 A-0586-15T4
or neglect. In short, an established finding is a conclusion
abuse or neglect occurred, as defined by N.J.S.A. 9:6-
8.21(c)(4). N.J.A.C. 3A:10-7.3(d). Disclosure of an
established finding is authorized by N.J.S.A. 9:6-8.10a(b) and
other statutes, imposing upon the rights of a perpetrator.
Thus, the result of an established finding is "significant" and
is accompanied by "longstanding adverse consequences," which, in
part, match the effects attached to a substantiated finding.
Y.N., supra, 220 N.J. at 179.
IV.
We turn to the heart of V.E.'s appeal, which regards the
fact she was denied independent review of the Division's
determination establishing R.S. was an abused or neglected child
and that it was she who subjected the child to "substantial risk
of injury and environmental neglect." She seeks the opportunity
to challenge this conclusion before an independent factfinder.
A.
Administrative hearings are permitted to attack a
substantiated finding of abuse and neglect. N.J.A.C. 3A:5-
4.3(a)(2)11 (providing that by request a person can seek
administrative review of substantiated findings); D.F., supra,
377 N.J. Super. at 64-66. But, "N.J.A.C. 10:120A-4.3(a)(2) [now
11
Formerly N.J.A.C. 10:120A-4.3(a)(2).
27 A-0586-15T4
at N.J.A.C. 3A:5-4.3(a)(2)] does not provide a right to an
administrative hearing to one challenging a finding that abuse
or neglect has been 'established,' 'not established,' or
'unfounded.'" D.B., supra, 443 N.J. Super. at 442.
Few cases examine the nature of review of the Division's
findings and none examine the right to challenge an established
finding. Prior opinions have addressed possible due process
concerns arising from the Division's findings. For example, the
defendants in D.B. attacked the Division's disclosure of "not
substantiated" findings because they were denied an
administrative hearing. We concluded no hearing was required
because the defendants were afforded due process protections
such as, defendants retained the right to challenge the wording
used in the notice sent to the defendants' employer, D.B.,
supra, 443 N.J. Super. at 443-44, and a hearing was required,
prior to any action by the school district impacting the
defendants' employment. Id. at 443.
A teacher against whom a finding has
been made by [the Division] expressing
concern about the teacher's conduct "has a
due process right to challenge the wording
of such a finding on the ground that it is
misleading and unfairly damaging to his
reputation." "The impact upon a teacher's
reputation of a finding by [the Division]
expressing concern about the teacher's
conduct may be significant, especially if it
is accompanied by what appears to be an
affirmative finding by [the Division] that a
28 A-0586-15T4
teacher has had improper physical contact
with a student." "The investigatory findings
and 'concerns about the teacher's conduct,'
warrant 'some due process protection' by
'judicial review and correction [of the
findings] to curb administrative abuses.'"
[S.P., supra, 402 N.J. Super. at 270
(citations omitted).]
We reject any suggestion the present matter is governed by
our holding in D.B. First, as we have discussed, significant
ramifications of disclosure are attached to an established
finding. Second, no availing due process protections are
offered to V.E. if aggrieved by the disclosure of what she
believes is an unsupported conclusion.12 We also reject the
notion that only the broader implications of a substantiated
finding trigger adjudicatory review.
Federal and state courts alike recognize due process as a
"flexible" concept, such that the scope of its procedural
protections depend upon the circumstances at issue. In re R.P.,
333 N.J. Super. 105, 112-13 (App. Div. 2000) (citing Doe v.
Poritz, 142 N.J. 1, 106 (1995)). When determining what process
is due, the primary inquiry is "whether there is a protectable
liberty interest at stake." In re E. Park High Sch., supra, 314
N.J. Super. at 160. A liberty interest is not implicated
12
The parties agree regulations limit the remedy to challenge
an established finding to an appeal to this court.
29 A-0586-15T4
anytime a governmental agency transmits information that may
impugn a person's reputation. L.R., supra, 321 N.J. Super. at
460.
Whether the requirements of procedural
due process apply to the interest asserted
hinges upon whether it is encompassed in the
Fourteenth Amendment's protections of life,
liberty and property. Ingraham v. Wright,
430 U.S. 651, 672, 97 S. Ct. 1401, 1413, 51
L. Ed. 2d 711 (1977). If one of these
interests is implicated, the second step of
the analysis is to determine what procedure
would afford the proper level of procedural
due process to an individual being deprived
of that right. Ibid.
The interest in reputation and the
interest in nondisclosure have both been
recognized as protectable liberty interests.
Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.
Ct. 869, 876-877, 51 L. Ed. 2d 64, 73-74
(1977); Wisconsin v. Constantineau, 400 U.S.
433, 437, 91 S. Ct. 507, 510, 27 L. Ed. 2d
515, 517 (1971); Doe v. Poritz, 142 N.J. 1,
100 (1995). However, reputation "apart from
some more tangible interests such as
employment, is not either 'liberty' or
'property' by itself sufficient to invoke
the procedural protection of the Due Process
Clause." Paul v. Davis, 424 U.S. 693, 701-
702, 96 S. Ct. 1155, 1160-1161, 47 L. Ed. 2d
405, 413-414 (1976). Thus, it has been said
there must be "stigma plus" some other
tangible element in order to be considered a
"protectable liberty interest." Valmonte v.
Bane, 18 F.3d at 992, 999 (2d Cir.1994).
[M.R., supra, 314 N.J. Super. at 402-03.]
In the context of due process claims concerning privacy and
reputational interests, the New Jersey Constitution extends due
30 A-0586-15T4
process protection to personal reputation, "without requiring
any other tangible loss." Doe, supra, 142 N.J. at 104. But
"even if a person has a constitutionally protected interest, it
does not automatically follow that the person must be afforded
an opportunity for an adjudicatory hearing." R.P., supra, 333
N.J. Super. at 113.13 Therefore, "if a government agency
publicly disseminates findings which adversely affect the
subject of an investigation, the agency may be required as a
matter of due process to establish procedures by which the
investigatory findings may be challenged." In re Allegations of
Physical Abuse at Blackacre Academy on 2/10/93, 304 N.J. Super.
168, 182 (App. Div. 1997). See also Hannah v. Larche, 363 U.S.
420, 442, 80 S. Ct. 1502, 1514-15, 4 L. Ed. 2d 1307, 1321 (1960)
("[W]hen governmental agencies adjudicate or make binding
determinations which directly affect the legal rights of
individuals, it is imperative that those agencies use the
procedures which have traditionally been associated with the
judicial process.").
13
Federal law differs as a party must demonstrate "damage to
his or her reputation and impairment of some other interest" to
establish a protectable liberty interest under federal law. In
re E. Park High Sch., supra, 314 N.J. Super. at 160. State law
"gives a plaintiff a protectable interest in reputation
warranting due process protections 'without requiring any other
tangible loss.'" Id. at 161.
31 A-0586-15T4
In M.R., we concluded disclosure of a substantiated finding
of abuse or neglect standing alone "would not rise to the level
of deprivation of [a defendant's] liberty interest." M.R.,
supra, 314 N.J. Super. at 403-04. Nevertheless, the court
determined the procedure employed violated "administrative due
process requirements," id. at 409, and concluded the defendant
was entitled to "an opportunity for an evidentiary hearing" to
challenge a substantiated finding.14 Ibid.
14
The opinion of the court relied on a violation of
fundamental fairness:
[T]he doctrine of fundamental fairness
is an integral part of due process, and is
often extrapolated from or implied in other
constitutional guarantees. The doctrine
effectuates imperatives that government
minimize arbitrary action, and is often
employed when narrowed constitutional
standards fall short of protecting
individual[s] against unjustified
harassment, anxiety, or expense.
[State v. Miller, 216 N.J. 40, 71-72 (2013),
cert. denied, ___ U.S. ___, 134 S. Ct. 1329,
188 L. Ed. 2d 339 (2014) (citations
omitted).]
Courts have applied the fundamental fairness doctrine when
"someone was being subjected to potentially unfair treatment and
there was no explicit statutory or constitutional protection to
be invoked." Doe, supra, 142 N.J. at 109. However, two
concurring judges, Judge Skillman, see M.R., supra, 314 N.J.
Super. at 417-25, and Judge Eichen, id. at 426, rejected
application of the use of fundamental fairness doctrine, and
separately concluded the defendant was entitled to a trial type
administrative hearing.
32 A-0586-15T4
The Division refutes V.E.'s assertions maintaining an
established finding has no direct or indirect impact on a
perpetrator's "employment or liberty interests" because the
Division does not consider the perpetrator as someone included
in the child abuse registry. It reasons no adjudicatory hearing
rights arise because the information is generally kept for
agency use. See D.B., supra, 443 N.J. Super. at 444 (stating
individuals "have a lesser due process right in regard to
information kept for the use of the agency and entities involved
in the protection of children").
For the reasons outlined in our opinion, we reject as
unsupported the premise of the Division's position. What due
process requires depends in part on "the private interest at
stake" and on "the fiscal and administrative burdens . . .
additional procedural safeguards would entail." J.E. on behalf
of G.E. v. State, 131 N.J. 552, 566-67 (1993). Applying this
test, we conclude an administrative hearing is required to
contest the Division's conclusion abuse or neglect is
established.
As we have detailed, an established finding is a conclusion
of child abuse or neglect, which is subject to the concomitant
disclosure to persons, agencies, and entities we have
identified. Although disclosure is not as extensive as a
33 A-0586-15T4
substantiated finding, it nonetheless may affect certain
employment opportunities related to children, the right to adopt
or serve as a resource parent, and impact possible future
Division proceedings. Certainly V.E.'s private interests are at
stake.
It is also undisputed defendant was denied an opportunity
to challenge the Division's findings. The Division's conclusion
was reflected only in the Department's "Investigative Summary,"
finalized on February 12, 2015, and disseminated to defendant's
counsel during the February 19, 2015 case management conference.
Importantly, V.E. was not informed this report represented a
final agency decision.
Examining the content of the report, we note it includes
circumstantial evidence supporting V.E.'s possible knowledge of
the cannabis growing operation, such as the pervasive odor of
marijuana and V.E.'s initial evasiveness when asked about her
relationship with A.S. Yet, V.E. and others offered evidence
disputing V.E.'s knowledge of drugs in her home, the marijuana
growing in the basement, or the illegal electrical overload
caused by the illicit operation. Also, the growing operation
occurred behind locked doors to which V.E. was not shown to have
keys; V.E. entered the basement only to wash laundry and never
viewed the space she asserted was rented by A.S. to third-
34 A-0586-15T4
parties; R.S.'s statements to the Division confirmed these
assertions; the child's Godparents maintained neither A.S. nor
V.E. used or sold drugs, which was borne out by their respective
substance abuse evaluations; R.S. regularly attended and
performed well in school; and defendant was an involved parent
who provided for the health and physical well-being of R.S., as
well as her older college-age child.
On this record, necessary procedural safeguards must be
employed to allow V.E. the right to challenge disputed
adjudicative facts. This point is highlighted further when the
credibility of witnesses impacts the factual foundation
underpinning the agency's conclusion. Under such circumstances,
procedural fairness entitles V.E. to an opportunity to be heard.
The administrative action must be accompanied by the ability to
seek an administrative remedy. See M.R., supra, 314 N.J. Super.
at 411 ("The right to a hearing before a government agency,
whose proposed action will affect the rights, duties, powers or
privileges of, and is directed at, a specific person, has long
been embedded in our jurisprudence." (quoting Cunningham v. N.J.
Dep't of Civil Serv., 69 N.J. 13, 19 (1975))). See also N.J.
Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 298-99
(2011); D.F., supra, 377 N.J. Super. at 64.
35 A-0586-15T4
We recognize a party against whom abuse or neglect is
established may seek recourse through a direct appeal from what
amounts to the agency's final decision.15 N.J.A.C. 3A:5-2.8.
See Fall & Romanowski, supra, § 30:6-2(b) (2015) ("To the extent
that administrative review is precluded, such findings are a
final decision appealable as of right to the Appellate Division
pursuant to R. 2:2-3(a)(2)."). However, as we recognized in
M.R., the determination of disputed facts, including credibility
determinations, is not the function of this court. M.R., supra,
314 N.J. Super. at 411-12. Accordingly, we reject the
suggestion appellate review should be undertaken, and, as
necessary, a remand ordered. The inherent delay of such a
process is untenable, particularly in light of the fact the
administrative review process is well-established and easily
engaged.
Finally, we do not view the additional need for an
administrative hearing as a burden, which significantly
outweighs the need to adjudicate the disputed facts impacting
the private interest of the party affected by the agency's
finding. During argument it was estimated by the Deputy
15
The Division admits no document informed defendant the
report served as the final agency determination, subject to
appeal as of right. At oral argument the Division agreed the
issue is raised in this appeal.
36 A-0586-15T4
Attorney General that approximately five percent of the
approximately 2000 abuse and neglect determinations issued
annually were "established" findings. Not all of these
approximately 100 matters will be challenged, suggesting the
burden is manageable. Overall, "we cannot ignore the overriding
concern for the appearance of procedural fairness in agency
adjudications." Id. at 412 (quoting J.E. on behalf of G.E.,
supra, 131 N.J. at 568).
We hold when the Division finds parental conduct
establishes abuse or neglect of a child, subjecting the
individual to the ramifications of disclosure set forth in
various identified statutes, a party who seeks to challenge that
finding shall be entitled to an administrative hearing.
B.
V.E. alternatively sought to challenge the Division's
finding before the Family Part.16 She argues the dismissal over
16
Regulations recognize the potential for concurrent
investigations and review by the Division and the Family Part,
resulting in both administrative and judicial findings regarding
any abuse or neglect allegations. See e.g., N.J.A.C. 3A:10-
7.3(h)(1) (providing the Division to retain administrative
authority to decide "whether an allegation of conduct determined
to be abuse or neglect by the . . . Chancery Division, is
established or substantiated"); N.J.A.C. 3A:10-7.3(h)(3)
(authorizing the Division the administrative authority to
"[d]etermine the finding for each allegation of abuse or
neglect" even if the court declines to adjudicate the issue).
37 A-0586-15T4
her objection violated Rule 4:37-1(b). We are not persuaded.
We briefly address this challenge.
When a judge has given the Division
authority and responsibility for the care
and supervision of a child removed from his
home pursuant to Title 9 and Title 30,
N.J.S.A. 9:6-8.30 and N.J.S.A. 30:4C-12, the
Division may proceed under Title 30,
irrespective of a finding of abuse or
neglect. M.M., supra, 189 N.J. at 292-93
(2007). However, when the abuse or neglect
proceeding is terminated without a finding
that the allegations in the complaint are
substantiated, the Title 9 action should be
dismissed after exercise of jurisdiction
under Title 30 and orders should be entered
in accordance with the standards and
procedures pertaining to Title 30
litigation.
[Div. of Youth & Family Servs. v. N.D., 417
N.J. Super. 96, 109 (App. Div. 2010).]
Rule 4:37-1(b) governs the voluntary dismissal of actions
by order of the court. In relevant part, Rule 4:37-1(b)
provides that "an action shall be dismissed at the plaintiff's
instance only by leave of court and upon such terms and
conditions as the court deems appropriate" and, unless otherwise
stated, such dismissals are made without prejudice. Our courts
have consistently held that Rule 4:37-1(b) is intended to
protect litigants from having to defend a subsequent action
premised upon similar charges in the future. Burns v. Hoboken
Rent Leveling & Stabilization Bd., 429 N.J. Super. 435, 445
(App. Div. 2013). This decision lies within the judge's
38 A-0586-15T4
reasoned discretion. A.T. v. Cohen, 445 N.J. Super. 300, 307
(App. Div. 2016).
The Division's request resulted from its conclusion abuse
or neglect was not substantiated and, with limited services, the
child could safely be returned home. Although we disagree with
the suggestion V.E. was not subject to significant adverse
ramifications of disclosure, (a determination noted by the
reviewing judge), we recognized the Division's objective to
effectuate reunification was achieved. The "primary concern"
under Title 9 "is the protection of children, not the
culpability of parental conduct." G.S. v. Dep't of Human
Servs., 157 N.J. 161, 177 (1999). See also N.J.S.A. 9:6-8.50(c)
("[I]f the court concludes that its assistance is not required
on the record before it, the court shall dismiss the [Title 9]
complaint and shall state the grounds for the dismissal.").
The ordered administrative hearing on the issues
surrounding the Division's findings satisfies adequate review.
Under these facts, we cannot agree the Title 9 litigation should
have remained open to provide such an adjudication, when the
child's safety was no longer in dispute. We conclude the judge
did not abuse her discretion in granting the Division's motion
to dismiss.
39 A-0586-15T4
V.
In summary, we affirm the order dismissing the Title 9
litigation. We reverse the agency's denial of an adjudication
hearing and remand the matter to the Office of Administrative
Law for proceedings consistent with our opinion.
Affirmed in part. Reversed and remanded in part.
40 A-0586-15T4