Department of Children and Families v. D.B. & A.G.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5434-12T3
A-0276-13T3
DEPARTMENT OF CHILDREN AND
FAMILIES, INSTITUTIONAL
ABUSE INVESTIGATION UNIT,
Respondent,
v.
D.B.,
Appellant.
_________________________
DEPARTMENT OF CHILDREN AND
FAMILIES, INSTITUTIONAL
ABUSE INVESTIGATION UNIT,
Respondent,
v.
APPROVED FOR PUBLICATION
A.G., OCTOBER 20, 2015
Appellant. APPELLATE DIVISION
_________________________
Argued May 19, 2015 – Decided July 29, 2015
Before Judges Reisner, Koblitz and Currier.
On appeal from New Jersey Department of
Children and Families, Institutional Abuse
Investigation Unit, Intake ID: 17589252 and
17717832.
Louis P. Bucceri argued the cause for
appellant D.B. (Bucceri & Pincus, attorneys;
Mr. Bucceri, of counsel and on the briefs).
Albert J. Leonardo argued the cause for
appellant A.G. (Bucceri & Pincus, attorneys;
Mr. Leonardo, of counsel and on the briefs).
Salima Burke, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Lori J. DeCarlo, Deputy
Attorney General, on the briefs).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
We consolidate these two appeals for the purpose of writing
one opinion. Defendant A.G., a teacher's aide for an autistic
child, appeals from an August 14, 2013 findings report issued by
the Institutional Abuse Investigation Unit (IAIU) of the
Department of Children and Families (Department). Defendant
D.B., an elementary school art teacher, appeals from an amended
August 1, 2013 IAIU findings report. Both defendants contest
the validity of N.J.A.C. 10:129-7.3, upon which the Department's
findings were based.
D.B. and A.G. both seek to have the Department's findings
letter changed from "not established" to "unfounded." We affirm
the findings of "not established," but reverse and remand for
2 A-5434-12T3
the Department to issue new reports in conformity with the clear
directions we have previously provided to the agency.
A.G.
We first summarize the factual information with regard to
each defendant separately, beginning with A.G. A.G. was
employed by the Paterson public schools for twenty-nine years.
On May 16, 2013, the Department received a referral from the
principal stating that the prior day the teacher of a class of
students with learning disabilities saw A.G. hit five-year-old
Joey1 multiple times on his arm with her open hand. Joey had
been diagnosed as autistic.
From May to July the IAIU investigator interviewed the
following parties: A.G.; the reporting teacher; two adults who
were in the classroom at the time; the principal; the school
nurse; Joey; Joey's mother; and six of Joey's classmates. The
investigator also received copies of notes taken by the
principal as well as a May 15, 2013 account of the incident
written by the teacher; a May 16, 2013 account written by A.G.;
and a May 16, 2013 employee incident report written by A.G. and
the principal.
On May 16, 2013, A.G. wrote that:
1
We use initials for the parties and fictitious names for the
children to preserve their privacy.
3 A-5434-12T3
Yesterday at 1:00 p.m. when [we] were doing
the math [Joey] was very upset when [a
classmate, "Ana"] s[a]t next to another
student. [Joey] doesn't want[] [anyone]
near to [Ana] so he was very ag[g]ressive
and he started hit[t]ing so I was protecting
the other[] students. He hit me . . . in
the face and scratched me in the right side
of my face and left side of my hand. [The
teacher] was next to me. [H]e was kicking
the chair so I was holding his hands[.] I
told him that he needs to respect, that he
needs to stop and that he needs to do his
work, then he [did] wash his face and
hands[.] I was with him, then he did his
work (test).
The classroom teacher wrote in her May 15 statement that:
[Joey] did not want to complete his class
work and was acting out: screaming and
trying to run out of the classroom. When he
transitioned to [A.G.'s] group she tried
prompting him to complete his work but he
did not comply. He threw the classroom
materials from the table and ripped a test
paper that was in front of him. When [A.G.]
asked him to work, [Joey] scratched her
face. At this point, [A.G.] started to hit
[Joey] repeatedly and stating "You are not
going to scratch me" and "You need to have
respect". The incident was reported to the
building administrator[.]
When interviewed by the investigator on June 14, 2013, the
teacher asserted the following. A.G. hit Joey four times. She
estimated that on a scale of one to ten, with one being the
softest and ten being the hardest, A.G. struck Joey using a
force of five to six. She had previously witnessed A.G. pinch
or press on a student's neck in order to make the student sit
4 A-5434-12T3
down. Joey's behavior had improved dramatically after the
termination of A.G.
According to the principal's notes, the reporting teacher
brought Joey to the office.
Due to [Joey's] disability, it is difficult
to understand what he is saying. However,
the teacher showed him the class picture and
had him identify the students and teachers.
When he pointed to [A.G.] he was able to say
[A.G.'s last name]. He was then asked if
she had hurt him. He said yes and touched
his mouth. He also brought his foot up to
his cheek. He was again asked if she had
hurt him. However, he was not able to
respond or elaborate on what had happened.
[The teacher] was not sure if and when he
had been hit in the areas shown because it
was not what she had seen in the particular
incident.
Joey's mother, L.N., informed the investigator of the
following. She noticed a bruise on Joey's face in April 2013,
and Joey stated that a teacher did it, although he did not
identify the teacher. She had had no concerns about Joey's
safety at the school prior to April 2013. She had photographed
and videoed Joey's bruise, and in the video Joey responds to
questioning about how he had been bruised, without indicating
who was involved.
The investigator tried to interview Joey, but he replied
"Sponge Bob" and shut his eyes when asked about a classroom
incident with A.G. The instructional assistant claimed he
5 A-5434-12T3
witnessed Joey run out of the classroom after which he had to be
brought back in and seated by a teacher and himself; Joey began
to knock items down; he heard Joey and A.G. scream, but did not
see Joey scratch A.G. nor see any marks on Joey. The
instructional assistant also stated that although A.G. could be
loud and aggressive in her tone of voice, he never witnessed her
hit a student.
The investigator interviewed the substitute and the school
nurse who examined both A.G. and Joey. They did not see any
marks on Joey or marks on A.G.'s face, although A.G. had a small
scratch on her hand. Six of Joey's classmates said they had not
seen A.G. hit Joey.
A.G. was terminated effective May 31, 2013. The IAIU
embodied its findings report in three separate letters dated
August 14, 2013. The letters were sent to the state district
superintendent, A.G., and Joey's mother.
Each of the three letters included the following text:
Investigative findings
Physical Abuse/Substantial Risk of Physical
Injury/Environment Injurious to Health and
Welfare is not established, in accordance
with N.J.S.A. 9:6-8.21. No adjudicative
findings have been made, as the
Institutional Abuse Unit's review herein is
solely investigative.
6 A-5434-12T3
Not established findings are not disclosed
in a Child Abuse Registry Check but are
maintained in agency records.
The letters to the district superintendent and to Joey's
mother continued under the heading "Investigative Observations":
[Joey,] age [five,] had no observable
injuries. On May 16, 2013, [Joey] was
examined by the school nurse. The results
of the investigation indicate that [Joey]
was yelling and throwing papers in class.
An adult witness observed [A.G.] smack
[Joey] on the hand. [A.G.] denied that she
smacked [Joey.] [A.G.] admitted that she
put her hand over [Joey's] hand after he
scratched her. It should be noted that
[Joey] manifested a bruise under his eye in
April 2013. However, there was no
information to support that [A.G.] caused
the injury.
Based upon the information gathered and
physical observations of the child, [Joey]
is not an abused child as defined by
statute. However, the information gathered
indicates that [Joey] was harmed or placed
at risk of harm by virtue of the incident.
Additionally, each letter included a "Confidentiality
Statement" providing that:
[T]he results of the Department's
investigation, including identifying
information, are maintained in the
Department's files and can only be disclosed
as set forth in N.J.S.A. 9:6-8.10a. In
accordance with the statute, however, we can
release the findings report to
administration to help ensure that proper
care, treatment or supervision is provided,
not only to the specific child or children
involved here, but to all children under the
care and supervision of the above referenced
7 A-5434-12T3
facility. These reports may be used by any
person or entity conducting a disciplinary,
administrative or judicial proceeding to
determine terms of employment of an officer,
employee or volunteer with an agency or
organization providing services to children.
D.B.
On April 24, 2013, the Department received a referral from
the principal of a public elementary school in Paterson. The
principal reported that Larry, a six-year-old student, said
D.B., the child's art teacher, grabbed Larry’s arm and scratched
the child earlier that day. Over the following three weeks two
investigators from the IAIU interviewed the following parties:
Larry; D.B.; the principal; five of Larry’s classmates; the
school nurse; the school security officer; and Larry’s mother.
An investigator also took photographs of Larry’s arm on the day
of the referral.
When the principal was interviewed that same day, he
explained that earlier in the morning Larry showed him a linear
red mark caused by D.B. scratching him. The principal also
stated that, although students regularly complained about D.B.,
this was the first time he saw a raised mark on a child in
connection with an incident. Additionally, the principal
indicated that he had prior concerns about D.B.'s failure to
properly maintain control of her students, asserting that
8 A-5434-12T3
students in D.B.'s classroom would run around and hit each
other.
Shortly after interviewing the principal, an investigator
interviewed Larry in the presence of the principal. Larry
stated that D.B. had sent him to the security guard because he
and a classmate were laughing while refusing to stay seated.
The security guard then sent him back into the classroom. When
Larry returned to the classroom, he refused to sit down when
asked to do so by D.B., which led to D.B. scratching him on his
right arm. After Larry was scratched he went back out to the
security guard with a classmate, at which time he showed the
guard his arm and was then directed to the school nurse. Larry
conceded that he did not always listen to D.B.'s instructions
during class.
An investigator interviewed Larry's mother, who stated that
Larry had informed her about his injury. Larry told her that
his teacher grabbed and scratched his arm when he did not comply
with her instruction to sit down in class.
An investigator also interviewed D.B., who explained that
she saw Larry throwing a chair at a student, but did not touch
Larry at all. A "Parent Conference Request/Modification
Report," written by D.B., detailed Larry’s conduct in her class
on the date of the incident. The Report stated that Larry
9 A-5434-12T3
called another student names, refused to sit down, ran around
the classroom, and threw a chair.
The school nurse, who examined Larry's arm, observed three
faint reddish marks on Larry's arm, which disappeared after the
application of ointment. An investigator reviewed the
"Individual Student Health Log," which documented the school
nurse's examination of Larry on the referral date.
The investigators also interviewed five of Larry’s
classmates. Three children stated that Larry threw a chair, and
D.B. then grabbed him by the arm and removed him from the
classroom. The two other children gave completely divergent
accounts. The security guard stated that D.B. called her to the
classroom after which she brought Larry to the nurse.
In three separate letters, the IAIU communicated its
findings to D.B., the state district superintendent, and Larry’s
mother. After counsel for D.B. wrote to IAIU seeking certain
changes, on August 1, 2013 the IAIU sent amended findings
letters to D.B. and the superintendent. The finding of "not
established" remained unchanged.
Each of the August 1, 2013 amended letters included the
following text under the heading "Investigative Findings":
"Physical Abuse/Cuts, Bruises, Welts and Abrasions is not
established in accordance with N.J.S.A. 9:6-8.21. No
10 A-5434-12T3
adjudicative findings have been made. The Institutional Abuse
Unit's review herein is solely investigative." Furthermore, the
"Investigative Findings" section of the amended letters recited
that, "Not established findings are not disclosed in a Child
Abuse Registry Check [] but they are maintained in agency
records."
The August 1, 2013 amended letters further stated under the
heading "Investigative Observations" that:
[Larry] age [six], was examined by the
school nurse who noted three faint red marks
on [Larry’s] right arm. It was reported
that [D.B.] grabbed and scratched [Larry] on
his right arm. Four witnesses interviewed
reported that [D.B.] made physical contact
with [Larry’s] right arm. When interviewed
[D.B.] denied grabbing [Larry’s] arm.
Based upon the interviews and physical
observations of the child, [Larry] is not an
abused or neglected child as defined by
statute. The information gathered indicates
that [Larry] was harmed or placed at risk of
harm by virtue of the incident.
Each amended letter also included a "Confidentiality
Statement" identical to the one included in the letters sent
concerning A.G.
In a memorandum dated June 14, 2013, which had attached
IAIU's June 3, 2013 findings letter to the superintendent, the
principal informed D.B. that due to the district's "zero
tolerance policy approach to teachers possibly causing harm to
11 A-5434-12T3
students," the principal had recommended "additional
disciplinary actions ranging from suspension to tenure charges."
The same day the superintendent sent D.B. a letter stating that
"due to conduct unbecoming," the district would withhold D.B.'s
salary increment for the 2013-2014 school year.
I
Both A.G. and D.B. argue that, "IAIU's findings that the
child 'was harmed or placed at risk of harm' constitutes an
adjudication and not a mere investigatory finding. [A.G. and
D.B.] further contend[] that the procedures followed by IAIU in
this case are violative of the due process safeguards ordered by
this court in its prior decisions."
The Department asserts that N.J.A.C. 10:129-7.3(c)(3),
effective April 1, 2013, does not violate the Due Process
Clause, and the "promulgation of this regulation is authorized
by statute and consistent with the agency’s mandated
responsibilities under Title Nine, N.J.S.A. 9:6-8.21 to -8.73."
"It is settled that '[a]n 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.
12 A-5434-12T3
1997)). "Absent arbitrary, unreasonable or capricious action,
the agency's determination must be affirmed." Ibid. (citing R &
R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175
(1999)). "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)). 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. City of
Newark v. Natural Res. Council, Dep't of Envtl. Prot., 82 N.J.
530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed.
2d 245 (1980).
N.J.S.A. 9:6-8.21(c) provides in pertinent part the
definition of an abused or neglected child as follows:
"Abused or neglected child" means 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, as herein
defined, to exercise a minimum degree of
care . . . by unreasonably inflicting or
allowing to be inflicted harm, or
substantial risk thereof, including the
infliction of excessive corporal punishment;
13 A-5434-12T3
or by any other acts of a similarly serious
nature requiring the aid of the court[.]
Only 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). G.S., supra, 157 N.J. at 178; L.A. v.
N.J. Div. of Youth & Family Servs., 217 N.J. 311, 332 (2014).
Not every harm or risk of harm is of such a serious nature to
cause a child to become an abused or neglected child. Thus, it
is not inconsistent to find that a child was placed at risk of
harm and yet was not abused or neglected.
On April 1, 2013, the Department adopted a framework
providing four possible findings that are made after the
Department evaluates the available information: "substantiated";
"established"; "not established"; and "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 investigation indicates
the existence of any of the circumstances in
N.J.A.C. 10:129-7.4 or substantiation is
warranted based on consideration of the
aggravating and mitigating factors listed in
N.J.A.C. 10:129-7.5.
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.
14 A-5434-12T3
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. 10:129-7.3(c).]
After completing its investigation, the Department must
"notify the alleged perpetrator and others of the outcome of its
investigation." In re Allegations of Sexual Abuse at E. Park
High Sch., 314 N.J. Super. 149, 155 (App. Div. 1998). Pursuant
to N.J.A.C. 10:129-7.3(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[,]" but only findings that are substantiated
are disclosed for the purposes of a child abuse record
information check. N.J.A.C. 10:129-7.7(a).
If an allegation of abuse or neglect is substantiated, the
accused has a right to request an administrative hearing within
twenty days of notice of the finding. N.J.A.C. 10:120A-2.5(a);
N.J.A.C. 10:120A-4.3(a)(2). However, N.J.A.C. 10:120A-4.3(a)(2)
does not provide a right to an administrative hearing for a
15 A-5434-12T3
finding that abuse or neglect has been "established", "not
established", or "unfounded." See N.J.A.C. 10:120A-4.3(a)(2)
(providing that by request a person can seek administrative
review of substantiated findings); N.J.A.C. 10:120A-2.5(a).
When administrative review is not available, such findings are a
final decision appealable as of right to the Appellate Division.
R. 2:2-3(a)(2). N.J.A.C. 10:129-8.1(b) provides that "[t]he
Department shall retain each record which contains a
substantiated, established, or not established report, as
specified in N.J.A.C. 10:129-7.3."
D.B. and A.G. argue that IAIU findings of "not established"
violate due process when sent to other government agencies. In
L.R., we explained that a person's due process rights are not
violated when IAIU provides its findings to other government
agencies, even though the agency has not found abuse or neglect.
In re an Allegation of Physical Abuse Concerning L.R., 321 N.J.
Super. 444, 460 (App. Div. 1999).
Appellants also argue that they are entitled
to an evidentiary hearing because DYFS[2]
damaged their professional reputations by
notifying parents and guardians of the
alleged abused students and the Newark
school district of its investigatory
findings. However, we rejected
2
DYFS, the Division of Youth and Family Services, is now known
as the Division of Child Protection and Permanency, and is a
division within the Department.
16 A-5434-12T3
substantially the same argument in
[Allegations of Physical Abuse at Blackacre
Academy, 304 N.J. Super. 168, 184-85 (App.
Div. 1997)]. Although the New Jersey
Constitution extends due process protection
to personal reputation, "without requiring
any other tangible loss," Doe v. Poritz, 142
N.J. 1, 104 (1995), this does not mean that
a liberty interest is implicated anytime a
governmental agency transmits information
that may impugn a person's reputation.
DYFS' transmittals of investigatory findings
to the parents and guardians of alleged
abused students and the school district
constituted a significantly more limited
dissemination of adverse information than
the notifications concerning the presence of
Tier II and III sex offenders in a community
which the Court in Doe found to require due
process protections. 142 N.J. at 103-07.
Moreover, a finding that child abuse
allegations have not been substantiated but
that DYFS has nevertheless expressed
"concerns" about a person's conduct is
intrinsically less damaging to reputation
than a finding that child abuse charges have
been "substantiated" or that a person is a
convicted sex offender. Therefore, DYFS'
limited dissemination of the results of its
investigations did not cause the kind of
damage to reputation which would entitle
appellants to a hearing.
[Ibid.]
Although, in L.R. we were considering the finding of "not
substantiated" under the prior framework of the N.J.A.C. 10:129-
7.3(c), our reasoning is also valid when considering "not
established" under the current N.J.A.C. 10:129-7.3(c)(3).
In In re an Allegation of Physical Abuse Concerning R.P.,
333 N.J. Super. 105, 113 (App. Div. 2000), we opined that:
17 A-5434-12T3
"[D]ue process is flexible and calls for
such procedural protections as the
particular situation demands." 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.
[(internal citations omitted).]
We continued, stating that, "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." Id. at 117
(internal citation omitted).
Similarly, we again reaffirmed this principal in the S.P.
case providing that:
[A] teacher is not entitled to an
adjudicatory hearing to challenge a finding
that 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.'" "A finding by DYFS 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."
[N.J. Dep't of Children & Families'
Institutional Abuse Investigation Unit v.
S.P., 402 N.J. Super. 255, 270 (App. Div.
2008) (internal citations omitted).]
18 A-5434-12T3
We did, however, find that teachers do have the right to
challenge the wording of the findings of the Department, which
we address later in this opinion. Id. at 270-71. Thus, the
notification-of-findings process of N.J.A.C. 10:129-7.3 does not
constitute a violation of due process.
D.B. and A.G. also assert that N.J.A.C. 10:129-8.1, which
allows the Department to retain unproven accusations forever is
a violation of N.J.S.A. 9:6-8.40a. 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. The records retained for "substantiated"
allegations are the only ones made public, thus D.B. and A.G.
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.
II
D.B. and A.G. also argue that the conclusion specified by
IAIU as to their conduct is beyond the authority of the agency.
They argue that the language in the findings letters sent to the
superintendents of schools is conclusory, in violation of
established case law.
19 A-5434-12T3
Both D.B.'s and A.G.'s argument that the Department has
exceeded its regulatory authority is unpersuasive and
inconsistent with New Jersey case law. We stated in L.R. that:
"[T]he 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."
DYFS has been granted broad authority to
investigate child abuse allegations,
including specific authority to investigate
any child abuse allegation against a public
school teacher and to report its findings to
the teacher's employer. N.J.S.A. 18A:6-7a.
An investigation of an abuse complaint
against a teacher may disclose conduct which
poses a threat to the physical or emotional
well-being of the teacher's students even
though it does not rise to the level of
"child abuse" within the intent of N.J.S.A.
9:6-8.21. Therefore, we are satisfied that
DYFS has not only the authority but the
responsibility to take reasonable measures
to protect students from any threat to their
well-being. The most obvious available
measure to protect students from a teacher
who poses a danger to their safety or
welfare is for DYFS to communicate its
concerns and recommendations to the school
district which employs the teacher. The
district can then take whatever action it
deems appropriate to address DYFS' concerns,
including counseling, transfer of the
teacher to another assignment or, in an
extreme case, termination of employment.
Accordingly, we are satisfied that DYFS has
the statutory authority to find that child
abuse allegations against a teacher are "not
substantiated" but that the teacher's
conduct poses a risk of harm to his or her
students, and to report those concerns to
20 A-5434-12T3
the school district which employs the
teacher.
[L.R., supra, 321 N.J. Super. at 451-52
(emphasis added) (internal citations
omitted).]
III
D.B. and A.G. argue that the Department's findings letters
to the superintendents of schools violate the requirements of
due process and fundamental fairness. In S.P. we explained
that:
A teacher against whom a finding has been
made by DYFS 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 DYFS expressing concern about the
teacher's conduct may be significant,
especially if it is accompanied by what
appears to be an affirmative finding by DYFS
that a 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
(internal citations omitted).]
In A.I., we determined that the IAIU acted within its
authority in issuing its findings but nonetheless ordered the
IAIU to amend its letter to embody language explicitly stating
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that the IAIU had not adjudicated the findings or could not make
binding recommendations, stating that the letter:
needs to be amended to avoid an improper
impression conveyed despite the ultimate
finding that the charges of abuse were
"unfounded." Although interviews with
students and teachers presented conflicting
accounts and no adjudication took place,
IAIU's letter to the District stated, as if
conclusively found, that appellant "grabbed
[A.I.'s] ponytail quickly at the same time
as [the student] was trying to move away and
as a result, the student fell to the floor."
Accordingly, even though the section on
"Investigative Findings" states that "[n]o
adjudicative findings have been made [and]
IAIU's review herein is solely
investigative," the factual recitation in
the "Evaluation of Facts" should be reworded
to reflect this distinction. The letter
should also note that IAIU's findings are
not binding or conclusive. However, the
overall conclusion that appellant's actions
were "unjustified and inappropriate" is
supported by the witness accounts, all of
which suggest some physical confrontation
between [the student] and [the teacher], and
need not be deleted.
[A.I., supra, 393 N.J. Super. at 131
(citation omitted).]
Similar to the A.I. case, the letter dated August 14, 2013
sent to the superintendent of schools regarding A.G. and the
amended letter dated August 1, 2013, relating to D.B., failed to
include in the "Investigative Observations" section the
statement that "IAIU's findings are not binding or conclusive."
Ibid. Moreover, in S.P. we opined that simply stating that the
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findings are not binding or conclusive is insufficient, and the
IAIU’s findings must clearly explain that it has made no
determination as to the validity of the statements provided by
witnesses. S.P., supra, 402 N.J. Super. at 272-73. We noted in
R.P. that DYFS is not permitted to convey "the impression that
its finding[s] [are] based on an adjudicatory hearing." R.P.,
supra, 333 N.J. Super. at 117. Therefore, both cases are
reversed and remanded to the agency with direction to comply
with our holdings in A.I., R.P., and S.P. Any remaining
arguments that we have failed to specifically address are
without sufficient merit to require discussion in a written
opinion. R. 2:11-3(e)(1)(E).
D.B. and A.G. are entitled to findings letters that state,
after the conflicting witness statements are presented, that no
determination as to the accuracy of the statements has been
made. If a statement that there were allegations that a child
was harmed or put at risk of harm is included within the
"Investigative Observations" section of the letters, it must be
followed by the language that "there has been no determination
of the accuracy of [the] allegations." R.P., supra, 333 N.J.
Super. at 117. The Department's findings of "not established"
for both D.B. and A.G. need not be changed to "unfounded."
Reversed and remanded. We do not retain jurisdiction.
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