B.T. v. Department of Children and Families

• Court: New Jersey Superior Court Appellate Division
• Decided: September 26, 2025
• Docket: A-4073-23
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4073-23

B.T.,

Petitioner-Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES,

Respondent-Respondent. ____________________________

Submitted September 15, 2025 – Decided September 26, 2025

Before Judges Natali and Walcott-Henderson.

On appeal from the New Jersey Department of Children and Families, Division of Child Protection and Permanency, Case ID No. 10113310.

Williams Law Group, LLC, attorneys for appellant (Alvin Eugene Richards, III, of counsel and on the briefs).

Matthew J. Platkin, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Meaghan Goulding, Deputy Attorney General, on the brief). PER CURIAM

B.T. (Bill) appeals from a final agency decision of the Department of

Children and Families, Division of Child Protection and Permanency (Division),

which determined that allegations of abuse and neglect against N.R.-A. (Nora)

were "not established" under N.J.A.C. 3A:10-7.3(c)(3).1 Bill argues that the

Division did not identify any credible evidence supporting its determination.

Because we are satisfied the "not established" finding is supported by some

credible evidence and is not arbitrary, capricious, or unreasonable, we affirm.

Bill is the adult foster brother of Nora, who was born in December 2007.

Nora's adoptive mother, C.A. passed away, and Nora's adult sister, M.D. (Molly)

adopted her and Nora's other sister, N.R.-A. (Nancy). Nora and Nancy live with

Molly, her husband, E.D., and their biological children.

In January 2024, an anonymous reporter called the Division and expressed

concerns for then sixteen-year old Nora's safety. The reporter stated that Nora

disclosed to her cousin that Bill had fondled Nora's breasts and digitally

penetrated Nora's vagina while she visited him a few weeks earlier.

A Division investigator visited Molly's house the day it received the report

1 We use initials and pseudonyms in order to protect the privacy interests of the family. R. 1:38-3(d)(12).

A-4073-23 2 and interviewed Nora with Molly present. According to the Division's records,

Nora verbally answered the investigator's questions at times but also simply

nodded in response to other questions. After initially denying the account, Nora

stated Bill inappropriately touched her and when Molly left the room, Nora

confirmed Bill had digitally penetrated her vagina and fondled her breasts as

well as having done so once in the past. Nora also stated she told her cousin

about the abuse.

The Division investigator also spoke with Molly and Nancy. Molly stated

she asked Bill if Nora could stay with him for a brief period due to Nora's

behavioral issues while in Molly's household. Bill agreed, and from December

17, 2023, to January 3, 2024, Nora lived with Bill and his family. Nancy

reported that after Nora's stay at Bill's house, Nora disclosed Bill had "touched

her vagina through her shorts and grabbed her chest."

On March 12, 2024, Nora was referred to the CARES Institute at Rowan

Medicine, a regional treatment and diagnostic center established to address the

needs of neglected and abused children, N.J.S.A. 9:6-8.99, for an evaluation and

possible treatment related to her disclosure. Nora refused a genital examination,

but was interviewed by medical professionals.

Nora informed a doctor at CARES that Bill abused her for the first time

A-4073-23 3 when she was eight or nine years old. She stated he digitally penetrated her

vagina with his finger and after she informed him he was hurting her, she stated

he stopped and went outside to smoke.

In the second, more recent incident, Nora stated after members of Bill's

household had gone to sleep, he approached her from behind on the couch and

began touching her. She repeated Bill again digitally penetrated her vagina and

fondled her breasts and she did not say anything or move during the incident.

Bill walked away, washed his hands, and left to smoke a cigarette.

Nora explained that she felt uncomfortable during the incident and had

trouble falling asleep that night. When asked what she would like to say to Bill,

Nora responded "[f]uck you." After completing Nora's evaluation, a CARES

doctor recommended that Nora be referred to "trauma-informed mental health

services."

The Division also interviewed Bill approximately a week later and learned

that he lives with his girlfriend, their biological child, and two children from a

separate relationship. Bill confirmed that Nora recently stayed with him and his

family. He denied the allegations and attributed Nora's statements to her being

upset with him because he informed Molly that Nora was sexually active with

boys from her school.

A-4073-23 4 The Division interviewed Molly a second time when she confirmed none

of the children had contact with Bill since the incident. Molly also declined

Division services, instead electing to obtain them on her own. The Division

closed its case, but provided the Camden County Prosecutor's Office with the

CARES report. The prosecutor declined to pursue the matter and advised the

Division to reach out to Camden County Police Department to inquire if they

would investigate the matter.

Following the investigation, the Division substantiated Bill for sexual

abuse. On May 16, 2024, it notified him of the finding and of his right to

challenge it. Bill challenged the Division's finding and, after reconsidering the

matter, the Division modified its finding to "not-established." It notified Bill of

the change on July 18, 2024.

In its July 18 letter, the Division explained that its "non-established"

finding was based on the fact that during the CARES evaluation Nora "made

disclosures of sexual abuse-sexual penetration. While these disclosures were

seriously considered, the Division was unable to confirm [you] [were] providing

routine and repetitive care as defined in the statutes when the act was

committed." The notice further informed Bill that he could provide additional

information for the Division's consideration, and it would consider any

A-4073-23 5 submitted materials before making its final determination.

Bill continued to dispute the Division's findings and submitted only a July

29, 2024 letter from his counsel, which maintained the "not established" finding

does not comport with the requirements articulated by the New Jersey Supreme

Court because the Division failed to provide him with the required notice of the

evidence that supported the Division's finding. S.C. v. N.J. Dep't of Child. &

Fams., 242 N.J. 201, 211 (2020). According to Bill, the Division did not meet

its duty to provide him with "a summary of the support for the finding" and

instead improperly only "provided a limited version of their findings without

any tangible evidence." He maintained "such a bald record" cannot possibly

afford Bill meaningful notice "necessary in order to protect . . . the basics of due

process."

In its August 5, 2024 response, the Division informed Bill it had reviewed

his supplemental submission and arguments but would not be "changing the

"[n]ot [e]stablished" finding as the information submitted did not alter" its

investigatory conclusion. This appeal followed.

The Division "is charged with the responsibility to investigate all

allegations of child abuse or neglect." S.C. v. N.J. Dep't of Child. & Fams., 242

N.J. at 211. After the Division completes its investigation, it makes one of four

A-4073-23 6 possible findings: "substantiated," "established," "not established," or

"unfounded." N.J.A.C. 3A:10-7.3(c); S.C., 242 N.J. at 211. A "substantiated"

or "established" finding is one in which "the preponderance of evidence

indicates that [the] child is 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)(1) and (2).

By contrast, a "not established" finding is one in which "there is not a

preponderance of the evidence that [the] child is an abused or neglected

child . . ., but evidence indicates that the child was harmed or was placed at risk

of harm." N.J.A.C. 3A:10-7.3(c)(3). Our Supreme Court has explained that a

"not established" finding requires some "credible evidence" that the child was

harmed or placed at risk of harm. S.C., 242 N.J. at 239. The Court has also

explained that the Division's "finding" is not based on "adjudicated facts . . .;

rather, it merely ascribes what functions as a working label to the evidence

collected through investigation." Id. at 235.

"Thus, a 'not established' finding ... differ[s] from an 'established' or

'substantiated' finding of abuse or neglect [in] two ways: first, relating to the

quantum of evidence, and second, the nature of the finding." N.J. Dep't of Child.

& Fams. v. R.R., 454 N.J. Super. 37, 41 (App. Div. 2018). "[I]n a 'not

established' finding, that lesser quantum of evidence 'indicates' only [the] child

A-4073-23 7 'was harmed or was placed at risk of harm,' and does not establish the child was

an 'abused or neglected child' under N.J.S.A. 9:6-8.21(c)." Id. at 42 (quoting

N.J.A.C. 3A:10-7.3(c)(3)). Indeed, "placing a child 'at risk of harm' may involve

a lesser risk than the 'substantial risk of harm' or 'imminent danger' required to

establish abuse or neglect under the statute." Ibid. If "the evidence indicates

that a child was not harmed or placed at risk of harm," the allegation is deemed

"unfounded." N.J.A.C. 3A:10-7.3(c)(4).

A record containing a "not established" finding is required to be retained

by the Division. Although the record is confidential, it is subject to disclosure

in certain circumstances pursuant to N.J.S.A. 9:6-8.10(a). S.C., 242 N.J. at 228-

29. By contrast, an "unfounded" finding is subject to expunction. N.J.A.C.

3A:10-7.7(b).

Our Supreme Court has held that due process does not require an

adjudicatory proceeding to make a determination of "not established" because

the Division's findings are only investigatory findings. Nevertheless, the Court

has also held that the Division must provide meaningful notice of its finding of

"not established" and afford "the investigated subject an informal opportunity to

be heard by the agency before the investigatory finding is finalized." S.C., 242

N.J. at 238. In that regard, the Court has stated that the notice "should include

A-4073-23 8 a summary of the support for the finding, and the [Division's] reasoning should

be transparently disclosed." Id. at 238-39. "Moreover, the individual must be

informed of his or her opportunity to rebut the [Division's] conclusion or

supplement the record so that the informal opportunity to be heard before the

agency is not illusory." Id. at 239.

The scope of our review of a final agency decision is limited. In re

Stallworth, 208 N.J. 182, 194 (2011). We "must defer to an agency's expertise

and superior knowledge of a particular field," Greenwood v. State Police

Training Ctr., 127 N.J. 500, 513 (1992), and "extend substantial deference to an

'agency's interpretation and implementation of its rules enforcing the statutes for

which it is responsible' based on the agency's expertise." R.R., 454 N.J. Super.

at 43 (quoting In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89

(2004)). Nevertheless, when an agency's decision is not accompanied by the

necessary findings of fact, we generally remand the matter to provide the agency

the opportunity to correct the deficiency. See DiMaria v. Bd. of Trs. Pub. Emps.'

Ret. Sys., 225 N.J. Super. 341, 347 (App. Div. 1988).

Before us, Bill argues that the Division's decision was arbitrary,

capricious, and unreasonable because its investigation did not yield the quantum

of credible evidence required to sustain the finding of "not established," and,

A-4073-23 9 therefore, he was entitled to a finding of "unfounded." Bill specifically contends

that the agency failed to make a showing by a preponderance of evidence that

Nora has been abused or neglected, and its investigatory findings violated his

due process rights.

As noted, we are satisfied there is some credible evidence to support the

Division's "not established" finding and reject Bill's arguments on that point.

Nora's CARE evaluation, performed after the Division concluded multiple

interviews, including one with Bill, and upon which the Division expressly

based its revised "not established" finding, considered her claims that Bill

sexually assaulted her on two occasions, one of which included the December

2023 assault. As a result of her disclosures and other statements, the physician

conducting the CARE evaluation recommended Nora receive a referral for

trauma-focused therapy. Bill also does not dispute Nora was in his care during

the December 2023 to January 2024 time period, nor does he specifically contest

the "not established" finding on that basis.

Nothing in the administrative record supports his contention Nora's

credibility should be questioned sufficient for us to override the Division's

discretionary decision. Although he maintains Nora made the allegations to

retaliate against him for reporting her behavior to Molly, the Division was aware

A-4073-23 10 of his contention having interviewed Bill and, as we discern from the record,

was unsatisfied his assertion warranted an "unfounded" finding in light of the

CARES evaluation. We are therefore satisfied "some evidence" existed to

support the Division's finding.

We also reject Bill's claims he was denied procedural or substantive due

process in the context of the investigation, or the Division's final decision, or

his contention the Division's "not established" finding is functionally

indistinguishable from a Title Nine abuse and neglect determination. In S.C.,

the Court addressed the constitutional due process concerns implicated in

connection with the Division's review of abuse or neglect allegations. S.C., 242

N.J. at 230-35. The Court noted our case law has repeatedly characterized

determinations of "not established" as being investigatory rather than

adjudicatory in nature, and explained findings of "not established" involve "no

determination of ... accuracy," but only "interviews and 'other available

evidence' followed by a review and analysis of the information." Id. at 233

(quoting In re R.P., 333 N.J. Super. 105, 117 (App. Div. 2000)).

S.C. explained the Division "has not adjudicated facts or reached any sort

of conclusion about what actually occurred when it applies a "not established"

finding; rather it merely ascribes what functions as a working label to the

A-4073-23 11 evidence collected through investigation." Id. at 235. Further, a party's due

process rights can be satisfied through: "(1) meaningful notice of the

Department's planned investigatory conclusion of a "not established" finding

and (2) affording the investigated subject an informal opportunity to be heard

by the agency before the investigatory finding is finalized." Id. at 238.

Here, the Division followed the procedures enumerated in S.C. It

provided "meaningful notice" of its "not established" finding, an "informal

opportunity to be heard," and provided the reasons for its conclusion. It also

invited Bill to submit supplemental information before the agency issued its

final determination and considered the submissions by his counsel. Any claim

Bill was entitled to a formal hearing is without merit as the Division's finding

was investigatory and not adjudicatory.

To the extent we have not addressed a particular argument, it is because

either our disposition of the appeal renders it unnecessary, or the argument was

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

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