DEPARTMENT OF CHILDREN AND FAMILIES, ETC. VS. T.G. (DIVISION OF CHILD PROTECTION AND PERMANENCY) (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NOT FOR PUBLICATION WITHOUT THE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-5307-17T4
DEPARTMENT OF CHILDREN
AND FAMILIES, DIVISION OF
CHILD PROTECTION AND
PERMANENCY
Petitioner-Respondent,
v.
T.G.
Respondent-Appellant.
_____________________________
Argued September 16, 2019 – Decided December 16, 2019
Before Judges Messano and Susswein.
On appeal from the New Jersey Department of Children
and Families, Division of Child Protection and
Permanency, Docket No. AHU 17-0229.
Thomas Ercolano, III argued the cause for appellant
(Forster Arbore Velez, attorneys; Thomas Ercolano, III,
on the briefs).
Joshua Paul Bohn, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Joshua Paul Bohn, on the
brief).
PER CURIAM
Respondent, T.G., appeals from a final administrative decision by the
Division of Child Protection and Permanency (Division) to substantiate an
allegation of child neglect. Respondent does not dispute that she neglected her
four-year-old daughter by driving under the influence of alcohol while the
toddler was in the car and not properly secured in a child safety harness.
Respondent contends, however, that the incident should have been classified as
"established" rather than "substantiated" under the tiering system established in
N.J.A.C. 3A:10-7.3(c).
The distinction between a "substantiated" violation and an "established"
one is significant. The Division will not issue a license to a child daycare facility
if that facility employs a staff member who has a record of a "substantiated"
incident of child abuse or neglect. N.J.S.A. 30:5B-6.2. Here, respondent
operates a daycare center.
After reviewing the record, we conclude that the final agency decision is
supported by sufficient credible evidence and was not arbitrary, capricious, or
unreasonable. We therefore have no basis upon which to substitute our own
judgment for that of the Administrative Law Judge (ALJ) or the Division in this
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case. Accordingly, we affirm the "substantiated" classification of respondent's
neglectful conduct.
I.
A.
We begin our analysis by acknowledging the deferential standard of
review that governs this appeal. An appellate court may reverse a decision of
an administrative agency only if it is "arbitrary, capricious, or unreasonable, or
if it is not supported by substantial credible evidence in the record as a whole."
P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 529-30 (1995)
(citing Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993)). Agency actions are
presumed valid and reasonable, and the plaintiff bears the burden to overcome
this presumption. Bergen Pines Cty. Hosp. v. N.J. Dep’t of Human Servs., 96
N.J. 456, 477 (1984).
Generally,
[c]ourts can intervene only in those rare circumstances
in which an agency action is clearly inconsistent with
its statutory mission or other state policy. Although
sometimes phrased in terms of a search for arbitrary or
unreasonable action, the judicial role is generally
restricted to three inquiries: (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 bases its action; and (3)
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3
whether, in applying 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.
[In re Musick, 143 N.J. 206, 216 (1996) (citing
Campbell v. Dep’t of Civil Serv., 39 N.J. 556, 562
(1963)).]
Furthermore, it is well settled that a reviewing court cannot substitute its
own judgment in place of the agency judgment, even if the court would have
reached a different result. In re Stallworth, 208 N.J. 182, 194 (2011) (citing In
re Carter, 191 N.J. 474, 483 (2007)). This is particularly true when, as in this
instance, we are reviewing an issue related to an agency's special "expertise and
superior knowledge of a particular field." Id. at 195 (quoting In re Herrmann,
192 N.J. 19, 28 (2007)).
B.
To understand the context of respondent's contention, it is appropriate to
briefly review the regulatory classification framework the Division uses to
determine whether a child abuse or neglect allegation is "established" or
"substantiated." The regulations governing child abuse and neglect
investigations authorize four possible outcomes: "unfounded," "not
established," "established," and "substantiated." N.J.A.C. 3A:10-7.3(c). The
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present appeal requires us to consider the distinction between the latter two
classifications.
An allegation is "established" when "the preponderance of the evidence
indicates that a child is an 'abused or neglected child' . . . but the act or acts
committed or omitted do not warrant a finding of 'substantiated.'" N.J.A.C.
3A:10-7.3(c)(2). An allegation is "substantiated" when "the preponderance of
the evidence indicates that a child is an 'abused or neglected child' . . . 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." N.J.A.C.
3A:10-7.3(c)(1).
Accordingly, the Division can find a "substantiated" case of abuse by
means of two distinct and independently sufficient methods. First, N.J.A.C.
3A:10-7.4 lists six circumstances 1 that are sometimes referred to as the
1
The six absolute circumstances are:
1. The death or near death of a child as a result of abuse
or neglect;
2. Subjecting a child to sexual activity or exposure to
inappropriate sexual activity or materials;
(continued)
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5
"absolute" circumstances. N.J.A.C. 3A:10-7.4. If any one of these enumerated
circumstances is proven by a preponderance of the evidence, the Division must
find the incident to be "substantiated."
The second classification method involves a greater degree of discretion.
Under this method, the Division considers seven aggravating factors 2 and four
3. The infliction of injury or creation of a condition
requiring a child to be hospitalized or to receive
significant medical attention;
4. Repeated instances of physical abuse committed by
the perpetrator against any child;
5. Failure to take reasonable action to protect a child
from sexual abuse or repeated instances of physical
abuse under circumstances where the parent or
guardian knew or should have known that such abuse
was occurring; or
6. Depriving a child of necessary care which either
caused serious harm or created a substantial risk of
serious harm.
[N.J.A.C. 3A:10-7.4.]
2
The aggravating factors are:
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;
(continued)
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mitigating factors. 3 N.J.A.C. 3A:10-7.5. If the applicable mitigating factors
outweigh the aggravating factors, the case is "established." See ibid. If the
aggravating factors outweigh the mitigating factors, the case is "substantiated."
See ibid.
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;
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).]
3
The mitigating factors are:
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).]
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II.
A.
We next consider the particular circumstances surrounding the incident of
child neglect at issue in this appeal. We refer to this episode as the DWI
incident. On December 7, 2015, around 1:16 p.m., a police officer responded to
a report that someone was driving a car erratically with a child inside. The
officer pulled over respondent's vehicle after determining that it matched the
description in the report. While speaking with respondent, the officer detected
the odor of alcohol and noticed that she was chewing gum, which the officer
interpreted to be an attempt to mask the smell of alcohol. Respondent failed all
three field sobriety tests that were administered and was placed under arrest for
driving while intoxicated.
After being arrested but while still on the scene, respondent attempted to
prevent the officer from closing the door of the police vehicle by keeping her
foot outside of the car. She also attempted to remove her handcuffs. As she was
being transported from the scene, respondent screamed at the officer and
attempted to kick out the windows of the police vehicle. Once at police
headquarters, respondent refused to provide a breath sample for testing.
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The Division case worker assigned to conduct the investigation
interviewed respondent at the police station. The case worker immediately
could tell that respondent was intoxicated because she was lethargic and slurring
her words. The case worker's investigation determined that in addition to
driving while intoxicated, respondent also failed to properly secure her four-
year-old daughter, R.V., in a child car seat. At the time of the DWI incident,
R.V. was wearing a lap belt but was not secured in the five-point harness.
Respondent told both the police officer and case worker that she had properly
secured R.V. in the harness, and she claimed that R.V. must have removed it
herself. Based on the foregoing circumstances, the case worker removed R.V.
from respondent's care.
The DWI incident was not the first time the Division removed R.V. On
July 13, 2015, respondent called the police to report an incident of domestic
violence. Police arrived and saw that respondent was bruised and bleeding and
that there were broken dishes in the home. Respondent's two children, R.V. and
M.C., were present in the home but were not injured. Respondent appeared to
be intoxicated. M.C.'s father, A.C., was not present when the police arrived, but
the police eventually located him. A.C. gave the police a video that showed
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respondent harming herself in front of her children. Based on this episode and
the video, the Division removed both children from the house.
The July incident went before a Family Part judge on October 26, 2015.
The Division concluded that the July incident constituted an "established" case
of neglect. Respondent did not appeal that determination.
Following the DWI incident, respondent undertook efforts to address her
mental health and substance abuse problems. Respondent spent five days at a
detoxification facility before being transferred to another rehabilitation facility
that offers a "dual diagnosis" 4 program that focuses on the mental health of the
patients. Respondent was diagnosed with bipolar disorder and was prescribed
medication. Respondent stayed in the residential program for 28 days after
which she entered a mental health intensive outpatient program.
III.
On February 9, 2016, the Division determined that the DWI incident
constituted a "substantiated" incidence of child neglect. The letter sent to
respondent on that date explained, "[t]he Division's investigation determined
that child neglect was Substantiated for Substantial Risk of Physical
4
This term refers to the diagnosis and treatment of persons who suffer from co -
occurring substance abuse and a mental health disorders.
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Injury/Environment Injurious to Health and Welfare – 10/60 with regard to
[R.V.]. You have been identified as a person responsible for the neglect."
(capitalization and bold face in original). Appellant filed a timely appeal of the
"substantiated" determination and the matter was referred to the Office of
Administrative Law (OAL).
An ALJ conducted an evidentiary hearing on February 5, 2018. At that
hearing, the Division case worker testified as to the methodology she used to
classify the neglect as "substantiated," explaining that she considered and
weighed the aggravating and mitigating factors enumerated in N.J.A.C. 3A:10-
7.5. Specifically, the case worker found that the following aggravating factors
applied: (1) the tender age of the child, who was four; (2) the Division had to
remove the child for safety; and (3) there was a pattern of neglect. With respect
to the pattern of neglect, the case worker noted that this was the third time the
Division was involved with respondent for alcohol-related reasons, and this was
the second time that the Division removed the child. The case worker found that
one mitigating factor applied because respondent participated in rehabilitation
programs while the investigation was still ongoing. 5 Considering all of these
5
The case worker explained that the "remedial actions" mitigating factor only
applies only with respect to actions taken during the investigation, which must
(continued)
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circumstances, the case worker concluded that the aggravating factors "clearly
outweighed the mitigating factors."
The ALJ decided the case on April 30, 2018, upholding the Division's
"substantiated" classification and rejecting respondent's argument that the
neglect should have been classified as "established." The ALJ's decision rests
on two independent grounds. The ALJ first found that an absolute substantiating
circumstance set forth in N.J.A.C. 3A:10-7.4 applied.6 Specifically, the ALJ
concluded that the Division had proved by a preponderance of the evidence that
by driving a vehicle while intoxicated with an unsecured child, respondent
be completed within sixty days. See N.J.A.C. 3A:10-7.5(b)(1). Respondent
argued at the OAL hearing that the judge should have looked at her ongoing
rehabilitation efforts beyond the time period of the Division's investigation of
the July 2015 DWI incident. The ALJ found that respondent had presented very
little evidence of her rehabilitation. We would only add that this is not a parental
rights termination proceeding. The only issue before us is whether a specific
incident of child neglect is "substantiated." We therefore decline to expand the
temporal scope of the remedial action mitigating circumstance defined in
N.J.A.C. 3A:10-7.5(b)(1).
6
The Division did not originally rely on the absolute method of establishing a
"substantiated" incidence of neglect. Rather, the case worker's recommendation
was based on her weighing of the aggravating and mitigating factors set forth in
N.J.A.C. 3A:10-7.5. We do not believe that the classification method employed
by the case worker precluded the ALJ from applying the absolute classification
method to the facts elicited by the Division at the evidentiary hearing. The
Division has since adopted the findings and rationale of the ALJ with respect to
both methods for finding that the allegation of child neglect was "substantiated."
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"deprived a child of necessary care that created a substantial risk of serious
harm." See N.J.A.C. 3A:10-7.4(6). As we have already explained, that finding
of an absolute circumstance by itself was sufficient to support the
"substantiated" classification of the incident. Indeed, under the Division's
regulatory framework, that finding necessitated a "substantiated" classification.
Respondent on appeal nonetheless urges us to rely on excerpted language
from our decision in N.J. Div. of Child Prot. & Permanency v. V.E., 448 N.J.
Super. 374 (App. Div. 2017), to overturn the ALJ's reliance on this absolute
circumstance as the basis for ruling that the neglect was "substantiated." In V.E.
we noted that 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." Id. at 389. We also commented that "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." Ibid. Based on these dicta, respondent urges us to reject the absolute
circumstance found by the ALJ because the DWI incident is not a sufficiently
severe example of child neglect to warrant an automatic "substantiated"
classification.
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Respondent's reliance on the above-quoted dicta in V.E. is misplaced. The
issue in that case was whether the respondent was entitled to an administrative
hearing after the Division had determined that the allegation of child abuse and
neglect was "established." We had no occasion in V.E. to consider whether a
particular set of facts should be classified as "established" rather than
"substantiated." Moreover, our characterization that selected absolute
circumstances in N.J.A.C. 3A:10-7.4 represent "severe" situations, specifically,
those "involving death or near death, inappropriate sexual conduct, serious
injuries requiring significant medical intervention, or repeated acts of physical
abuse," was not meant to impliedly amend the regulation so that only those
particular circumstances would meet the "substantiated" threshold. Nor did we
have occasion in V.E. to modify the regulations by authorizing the Division to
exercise discretion and determine on a case-by-case basis whether a proven
absolute circumstance was sufficiently serious to warrant a "substantiated "
classification.
The point simply is that the dicta in V.E. that respondent relies on was
meant to highlight the differences between an "established" and "substantiated"
finding in the context of determining whether an evidentiary hearing is required
as a matter of due process of law, not to alter the regulatory framework's criteria
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or process for deciding between these two classifications. It bears emphasis,
moreover, that our comments in V.E. did not even mention the sixth enumerated
absolute circumstance—"depriving a child of necessary care which either caused
serious harm or created a substantial risk of serious harm"—which happens to
be the one the ALJ in this case found. V.E. should not be read to invalidate that
circumstance as an independently sufficient basis to substantiate an allegation
of child abuse or neglect.
We would only add with respect to respondent's argument that in our view,
her conduct in this case—drunk driving with an improperly restrained four-year-
old in the car—presents a grave and entirely foreseeable risk of death or serious
harm that, thankfully, did not come to fruition. We are not prepared to exempt
such conduct from the ambit of the absolute method for determining the
appropriate classification of child abuse or neglect. In sum, we conclude that
the ALJ properly found, applying the preponderance of the evidence standard of
proof, that respondent created a substantial risk of serious harm to her daughter
by driving under the influence while the child was not properly restrained in the
rear seat.
As we have already noted, the ALJ employed what might be described as
a "belts and suspenders" approach by considering both methods for determining
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that the DWI incident was "substantiated." Although not necessary given the
finding that an absolute factor under N.J.A.C. 3A:10-7.4 had been proven, the
ALJ also applied the balancing test the case worker had used in recommending
a "substantiated" classification. The ALJ found the same aggravating and
mitigating factors that the case worker had found, and the ALJ concluded that
the aggravating factors outweighed the sole mitigating factor. We conclude
from our review of the record that the ALJ's determination that the aggravating
factors outweighed the mitigating factor was not arbitrary, capricious, or
unreasonable, and was supported by sufficient credible evidence presented at
the hearing. This determination by the ALJ and the Division provides an
independent and sufficient basis for the "substantiated" classification.
Affirmed.
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