NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES VS. J.S. (NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3840-15T3
NEW JERSEY DEPARTMENT OF
CHILDREN AND FAMILIES,
Respondent,
v.
J.S.
Appellant.
_____________________________
Submitted September 14, 2017 – Decided October 4, 2017
Before Judges Currier and Geiger.
On appeal from the New Jersey Department of
Children and Families, Case Id. No. 16238045.
Williams Law Group, LLC, attorney for
appellant (Allison C. Williams, of counsel and
on the brief; Victoria D. Miranda, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Joann
M. Corsetto, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant J.S. was accused by his wife G.S. of physically
abusing their eleven-year-old daughter B.S. by pushing her down
the stairs.1 The police referred the child abuse allegation to
the New Jersey Department of Children and Families, Division of
Child Protection and Permanency (Division), which investigated and
concluded that the alleged abuse was "not established." As a
result, the Division did not file any proceedings or take any
action. Pursuant to its regulations, however, the Division's "not
established" finding and its investigation record are permanently
maintained in the Division's confidential records and not subject
to expungement. The regulations further provide that there is no
right to an administrative appeal from a "not established" finding.
Appellant contends that he was falsely accused and that his
right to due process has been denied because he was not afforded
an adversarial hearing to confront his accusers and present his
own evidence to clear his name. We disagree and affirm.
I.
We glean the following facts from the record. Husband J.S.
and wife G.S. were experiencing marital difficulties. They have
seven children, ranging in age from five to seventeen years old.
On November 22, 2015, G.S. filed a complaint against her
husband pursuant to the New Jersey Prevention of Domestic Violence
Act, N.J.S.A. 2C:25-17 to -35. During their investigation of the
1
We refer to appellant and his family members by initials to
protect their identity.
2 A-3840-15T3
domestic violence call, G.S. told the police that on November 14,
2015, J.S. pushed their eleven-year–old daughter B.S. down the
stairs, causing injury to her left knee, and that a four-year-old
neighbor witnessed the incident.2 G.S. had her daughter's knee
examined by a pediatrician the next day; her knee had still not
healed eight days later. The police referred the abuse allegation
to the Division, which investigated the incident.
The Division's investigation revealed ongoing marital
disputes between J.S. and G.S. G.S. stated that J.S. had anger
issues and was emotionally abusive. G.S. further recounted
multiple incidents, including that J.S. had previously thrown
their 16-year-old daughter into a wall, walked in on her while she
was showering, and tore their children's shirts while dragging
them up the stairs of their home. G.S. alleged that their sixteen-
year-old daughter was living with friends because she refused to
come home while her father was present. G.S. also reported that
J.S. was prescribed an unknown psychiatric medication.
Caseworkers had no concerns with the state of the home or the
children. B.S. reported she was fearful of her father when he is
2
A domestic violence temporary restraining order was issued
against J.S., but G.S. later voluntarily dismissed it when they
entered into a civil restraining order, which restricted his access
to the marital home and limited his parenting time to supervised
visits.
3 A-3840-15T3
in a bad mood, which she said was often. Both B.S. and her
brothers corroborated that J.S. had pushed or thrown B.S. during
the incident. J.S. denied pushing his daughter down the stairs,
claiming she fell because she lost her footing.
J.S. raises the following points on appeal: (1) the scope of
review; (2) the Division's finding of "not established" should be
deemed arbitrary, capricious, and unreasonable because the record
is insufficient to find the children were harmed or placed at risk
of harm; and (3) his right to due process was violated when the
Division deprived him of the right to challenge the investigatory
finding through the administrative process.
II.
Under the Division's revised regulations, there are four
possible outcomes of an abuse and neglect investigation: (1)
substantiated; (2) established; (3) not established; and (4)
unfounded. N.J.A.C. 3A:10-7.3(c). Those findings are defined
as follows:
(c) For each allegation, the Department
representative shall make a finding that an
allegation is "substantiated," "established,"
"not established," or "unfounded."
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
4 A-3840-15T3
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 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.
(d) A finding of either established or
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. 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.
5 A-3840-15T3
[N.J.A.C. 3A:10-7.3(c)-(d).]
The Division's investigation produced evidence indicating
that the children were harmed or placed at risk of harm by J.S.'s
conduct. The Division concluded, however, that the allegations
of abuse were "not established" because a preponderance of the
evidence gathered during its investigation did not support a
finding that J.S. abused or neglected the children as defined by
N.J.S.A. 9:6-8.21. See ibid.
In order to find the allegations "unfounded," the evidence
must "indicate[] that a child was not harmed or placed at risk of
harm." N.J.A.C. 3A:10-7.3(c)(4). The Division reasonably
concluded that such a finding would be inappropriate here.
Under the regulations, a finding of "substantiated" allows
the alleged abuser to demand a hearing. While the regulations do
not provide for a hearing if the finding is "established," we
recently held that "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." N.J. Div. of Child Prot.
& Permanency v. V.E., 448 N.J. Super. 374, 402 (App. Div. 2017).
The holding was based on the "lengthy list of institutions,
6 A-3840-15T3
governmental entities, and persons to whom the Division may release
information contained in the registry regarding any finding of
abuse or neglect [a]s set forth in N.J.S.A. 9:6-8.10a(b)(1) to
(23), -8.10a(c) to (g)." Id. at 392.
A finding of "not established" does not entitle a party to a
hearing, see N.J.A.C. 3A:5-4.3(a)(2), but is deemed a final agency
decision appealable as of right to the Appellate Division. R.
2:2-3(a)(2). "A finding by [the Department] that child abuse
charges have not been substantiated, but that there is some
indication a child was harmed or placed at risk of harm, is purely
investigatory in nature . . . with none of the procedural
protections of an adjudicatory proceeding." In re R.P., 333 N.J.
Super. 105, 117 (App. Div. 2000) (citation omitted); see also
Dep't of Children & Families v. D.B., 443 N.J. Super. 431, 443-44
(App. Div. 2015).
N.J.A.C. 3A:10-8.1(b) requires the Division to "retain each
record which contains a substantiated, established, or not
established report." Only records relating to an unfounded finding
are required to be expunged in their entirety, unless an exception
applies under N.J.A.C. 3A:10-8.3. N.J.A.C. 3A:10-8.1(a).
Although retained, the "not established" finding remains a
confidential record. N.J.S.A. 9:6-8.10a.
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Expungement of the records and finding would leave
caseworkers without historical reference in the event that any of
J.S.'s children or someone else in his care are subjected to abuse
or risk of harm in the future. The Division contends that the
information obtained during the current investigation would be
crucial to properly assessing the family and determining needs in
the event it receives a referral in the future.
III.
We first address appellant's challenge to the Division's "not
established" finding. "The scope of appellate review of a final
agency decision is limited[.]" In re Carter, 191 N.J. 474, 482
(2007). "An administrative agency's final quasi-judicial decision
will be sustained unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007)
(citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
The party challenging the administrative action bears the burden
of showing the agency's action was arbitrary, capricious or
unreasonable. Barone v. Dep't of Human Servs., Div. of Med. Asst.
& Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd
107 N.J. 355 (1987).
Our appellate review involves three channels of inquiry:
8 A-3840-15T3
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Herrmann, supra, 192 N.J. at 28 (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
"An 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 440.
J.S. contends that the "not established" finding should be
vacated and changed to "unfounded" because it is not supported by
sufficient evidence. We disagree. The Division's investigation
revealed evidence of physical abuse, including corroboration of
the allegations by the victims and several witnesses, and by
visible injury to B.S.'s knee. The "not established" finding is
supported by substantial evidence in the record, and is neither
arbitrary, capricious, nor unreasonable. J.S's claim that the
"not established" finding should be vacated and changed to
"unfounded" lacks merit.
9 A-3840-15T3
IV.
We next consider appellant's challenges to N.J.A.C. 3A:10-
7(c)(3). Appellant argues that N.J.A.C. 3A:10-7(c)(3) vests too
much discretion in Division caseworkers because it lacks a clear
legal standard. He further claims that the regulation authorizes
Division caseworkers to engage in a completely subjective
analysis, allowing them to render a "not established" finding
based upon minimal evidence.
The Division counters that the regulation was duly
promulgated in accordance with N.J.S.A. 9:3A-7(g), N.J.S.A. 9:6-
8.15, and N.J.S.A. 9:6-8.72, and that it represents an appropriate
exercise of agency authority. The Division denies that the record
contains false and prejudicial information and asserts that it is
properly retained pursuant to the enabling statutes.
Initially, we observe that the regulation falls within the
scope of the Division's "implementing and enforcing
responsibility" and, therefore, its interpretation "is ordinarily
entitled to our deference." Wnuck v. N.J. D.M.V., 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 are not,
however, "bound by the agency's legal opinions." Levine v. N.J.
D.M.V., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v.
Dept. of Human Servs., Div. of Youth & Family, 64 N.J. 161, 170
10 A-3840-15T3
(1999); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93
(1973)).
We note further that the regulation does not grant caseworkers
unbridled discretion that is untethered to a defined legal
standard. On the contrary, there are two components to a finding
of "not established." First, the caseworker must determine the
child is not "an abused or neglected child as defined in N.J.S.A.
9:6-8.21." N.J.A.C. 3A:10-7.3(c)(3). Second, the evidence must
indicate that a child "was harmed or was placed at risk of harm."
Ibid. While a finding that "some evidence" exists is not an
exacting standard, the case law provides adequate guidance as to
what constitutes harm or the risk of harm. See, e.g., Dep't of
Child. & Fam., Div. of Child Prot. and Permanency v. E.D.-O., 223
N.J. 166, 179 (2015).
J.S. also argues that the investigation records should be
destroyed when a "not established" finding is reached. We
disagree. "As the case law clearly states, 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." D.B., supra, 443
N.J. Super. at 444. Only records retained for "substantiated"
allegations are made public. Ibid. Thus J.S. has "a lesser due
11 A-3840-15T3
process right in regard to information kept for the use of the
agency and entities involved in the protection of children." Ibid.
The confidential retention of the investigation records and
"not established" finding appropriately addresses the Division's
need to access that information in the event of future referrals
involving the same alleged abuser.
V.
Finally, we consider whether J.S. is entitled to a hearing
to contest the "not established" finding. J.S. contends the
finding casts the target under suspicion, and prompts the Division
to permanently retain the record for future reliance and use even
if the evidence is limited. He asserts it "is fundamentally
unfair" to allow the Division to rely, in future matters, upon
evidence that might not survive judicial scrutiny. However, J.S.
has the right of direct appeal, as he has exercised here. See id.
at 442 ("When administrative review is not available, such
findings are a final decision appealable as of right to the
Appellate Division.") (citing R. 2:2-3(a)(2)).
Although a person's interest in protecting his reputation
from governmental actions triggers the right to due process, due
process is not a fixed concept. Doe v. Poritz, 142 N.J. 1, 105-
06 (1995). Instead, "due process is flexible and calls for such
procedural protections as the particular situation demands."
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Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33
L. Ed. 2d 484, 494 (1972). "Thus, 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.
"It is now firmly established that the 'due process'
requirements which govern the proceedings of an agency that makes
binding legal determinations directly affecting legal rights do
not apply to agency proceedings which are purely investigatory in
nature." In re Allegations of Physical Abuse at Blackacre Acad.
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) ("when governmental action does not
partake of an adjudication, as, for example, when a general fact-
finding investigation is being conducted, it is not necessary that
the full panoply of judicial procedures be used").
We have previously considered the issue of whether due process
requires that a party be permitted an administrative appeal from
a finding of "not established," or, under the prior regulation,
"not substantiated." See D.B., supra, 443 N.J. Super. at 443. We
have consistently concluded that "[a] finding by [the Division]
that child abuse charges have not been substantiated, but that
there is some indication a child was harmed or placed at risk of
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harm, is purely investigatory in nature, with none of the
procedural protections of an adjudicatory proceeding." N.J. Dep't
of Children & Families, Inst'l Abuse Investigation Unit v. S.P.,
402 N.J. Super. 255, 270 (App. Div. 2008) (emphasis added); see
also, D.B., supra, 443 N.J. Super. at 443-44; R.P., supra, 333
N.J. Super. at 117.
The interest J.S. claims gives rise to the right to a hearing
is his interest against the Division's retention of the records
and their possible use in the investigation of a future referral.
In D.B., we rejected the argument "that N.J.A.C. 10:129-8.1 [now
N.J.A.C. 3A:10-8.1], which allows the [Division] to retain
unproven accusations forever, is a violation of N.J.S.A. 9:6-
8.40a." D.B., supra, 443 N.J. Super. at 444.
Our decision in V.E., finding that a party against whom an
"established" finding has been made is entitled to an
administrative hearing, does not compel a different conclusion.
V.E., supra, 448 N.J. Super. at 402. The defendant in V.E. argued
that because an "established" finding made her subject to the same
adverse consequences of disclosure suffered by persons after a
"substantiated" finding is made, due process required that she be
afforded the right to contest the determination in an adjudicatory
hearing. Id. at 390. We reasoned:
14 A-3840-15T3
[A]n established finding is a conclusion abuse
or neglect occurred . . . . 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.
[Id. at 395-96 (citations omitted).]
We concluded that, on the record before us, "necessary
procedural safeguards must be employed to allow [the defendant]
the right to challenge disputed adjudicative facts." Id. at 401.
In reaching that conclusion, we explicitly distinguished D.B.,
observing that "significant ramifications of disclosure are
attached to an established finding." Id. at 397.
J.S. has not argued there are disclosure ramifications to the
"not established" finding that imperil any claimed right. The
administrative proceeding was purely investigatory in nature, and
the records retained "shall be kept confidential and may be
disclosed only under circumstances expressly authorized by
subsections b., c., d., e., f., and g." of N.J.S.A. 9:6-8.10a.
N.J.S.A. 9:6-8.10a(a). Even if, as J.S. contends, there is
erroneous information contained in those records, the
circumstances here do not provide a basis for an administrative
appeal. Pursuant to N.J.A.C. 3A:10-7.5(a)(6), only instances of
past abuse or neglect can be used as an aggravating factor to
15 A-3840-15T3
support a finding of abuse or neglect in the future. Further, in
the event that a substantiated finding of abuse or neglect is made
in the future, J.S. may challenge the factual basis for that
finding in an evidentiary hearing. N.J. Div. of Youth & Family
Servs. v. M.R., 314 N.J. Super. 390, 403-04 (App. Div. 1998). For
these reasons, J.S. was not entitled to an adversarial hearing to
contest the facts underlying the "not established" finding.
The remaining issues lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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