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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1288-17T3
NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY,
Petitioner-Respondent,
v.
N.C. and D.C.,
Respondents-Appellants. __________________________________
Submitted September 18, 2018 – Decided November 27, 2018
Before Judges Suter and Firko.
On appeal from the Department of Children and Families, Division of Child Protection and Permanency, Case No. 17221326.
Williams Law Group, LLC, attorneys for appellants (Allison C. Williams, of counsel and on the brief; Melissa R. Barrella, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sara M. Gregory, Deputy Attorney General, on the brief). PER CURIAM
Defendants D.C. (Doug),1 and his wife, N.C. (Nancy), appeal from the
September 28, 2017 decisions by the Division of Child Protection and
Permanency (the Division) that child abuse and neglect allegations made in July
2017 were "not established." We reverse the decisions because the Division's
"not established," findings lacked fair support in the record. However, with
respect to the "not established" finding about child abuse against Doug involving
excessive physical discipline, we remand that issue to the Division for review
and to make specific factual findings to support its determination under N.J.A.C.
3A:10-7.3(c)(1) to (4).
B.C. (Beth) was ten-months old when in July 2017, the Division opened a
"spin-off" investigation for child abuse and neglect because Doug's nine-year
old daughter from another relationship, K.C. (Kim), complained to her mother
that Doug struck her with a belt, leaving marks. Doug had custody of Kim. A
Division caseworker interviewed Doug, Nancy and her brother, S.B. (Sam), who
resided with them. She examined Beth for any marks or bruises, but found none.
Beth was "appropriately cared for," and "well dressed and groomed." The
1 Pursuant to Rule 1:38-3(d)(12), we use initials to protect the confidentiality of the participants in these proceedings. A-1288-17T3 2 caseworker "redirect[ed]" Doug whenever he wanted to discuss the allegations
about Kim, explaining she was there to discuss Beth and could not discuss Kim.
She said the "Hudson County Prosecutor's Office [advised her] not to discuss
[Kim's] case with [Doug] until he is interviewed by their office." Another
caseworker was handling the allegations involving Kim.
Both Doug and Nancy told the caseworker about a domestic violence
incident in February 2017, which had become physical between them and
resulted in their arrests. Beth was asleep upstairs in her crib at the time. The
charges were dismissed by the next month. Nancy described the incident as
"dumb."
Doug was diagnosed with post-traumatic stress disorder (PTSD) "related
to his service in the Iraq War and later in police work," and received a disability
pension. The staff psychiatrist at the Veterans Administration confirmed Doug
had been compliant with medication monitoring since 2016; he was not a danger
to himself or others. After the domestic violence incident, Doug began weekly
counseling. Nancy told the caseworker there were "no issues" after that. Doug's
counselor and psychologist sent letters to the Division stating he was not a
danger to himself or others and was compliant with treatment. Nancy's brother
Sam, who occasionally babysat Beth, told the caseworker he did not have any
A-1288-17T3 3 concerns about domestic violence in the home, or with Doug and Nancy's ability
to parent or their mental health.
The Division found the allegations of "neglect due to family violence"
against Doug and Nancy, and the allegations of "physical abuse due to risk of
harm" against Doug were "not established" regarding Beth. The Division's
report concluded,
[t]hough [Beth] did not have any marks or bruises on her, her half-sister [Kim] was hit with a belt repeatedly on her backside leaving excessive bruising. Additionally both [Doug and Nancy] acknowledge that a domestic violence incident occurred between them in February 2017 while [Beth] slept in her crib. Therefore, there is not a preponderance of the evidence that abuse and neglect occurred, but there is evidence that [Beth] was placed at risk of harm by [Doug and Nancy] engaging in physical violence, and [Doug] using excessive physical discipline.[2]
The Division sent letters to Doug and Nancy on September 28, 2017,
advising the allegations of abuse and neglect were "not established." This meant
that "some evidence indicate[d] that a child was harmed or placed at some risk
of harm, but there [was] not a preponderance of the evidence that the child ha[d]
been abused or neglected." Further information from its investigation could not
2 There was no evidence of any physical discipline of Beth by Doug, Nancy or Sam. This reference is to the allegations regarding Kim. A-1288-17T3 4 be "disclosed by the Division except as permitted by N.J.S.A. 9:6-8.10a," but
the Division's "record of the incident" would be maintained in its files. The "not
established" finding was not subject to an administrative appeal.
Doug and Nancy appeal the September 28, 2017 decisions, arguing the
Division's "not established" finding was a final agency decision that was
arbitrary, capricious and unreasonable because there was insufficient evidence
that Beth was harmed or placed at risk of harm. They ask us to vacate the
Division's "not established" finding and to enter a finding of "unfounded," or in
the alternative, to remand the matter for an administrative hearing.
The scope of our review in an appeal from an administrative agency
decision is limited. Russo v. Bd. of Trs., Police & Fireman's Ret. Sys., 206 N.J.
14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). The agency's
decision should be upheld unless there is a "clear showing that it is arbitrary,
capricious, or unreasonable, or that it lacks fair support in the record." Ibid.
(quoting Herrmann, 192 N.J. at 27-28). We are not, however, bound by the
"agency's interpretation of a statute or its determination of a strictly legal issue."
Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
The Division is the agency charged with investigating child abuse and
neglect. The Division's regulations allow for four types of findings. See
A-1288-17T3 5 N.J.A.C. 3A:10-7.3(c)(1) to (4). Two of these, "substantiated" and
"established," require a finding of child abuse under N.J.S.A. 9:6-8.21(c).
N.J.A.C. 3A:10-7.3(c)(1) to (2). The other two findings, "not established" and
"unfounded," are made when the investigation does not indicate child abuse
under the statute. N.J.A.C. 3A:10-7.3(c)(3) to (4). A finding of "not
established" occurs when "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, but evidence indicates that the child was harmed or was placed at risk or
harm." N.J.A.C. 3A:10-7.3(c)(3).3
Free access — add to your briefcase to read the full text and ask questions with AI
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-1288-17T3
NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY,
Petitioner-Respondent,
v.
N.C. and D.C.,
Respondents-Appellants. __________________________________
Submitted September 18, 2018 – Decided November 27, 2018
Before Judges Suter and Firko.
On appeal from the Department of Children and Families, Division of Child Protection and Permanency, Case No. 17221326.
Williams Law Group, LLC, attorneys for appellants (Allison C. Williams, of counsel and on the brief; Melissa R. Barrella, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sara M. Gregory, Deputy Attorney General, on the brief). PER CURIAM
Defendants D.C. (Doug),1 and his wife, N.C. (Nancy), appeal from the
September 28, 2017 decisions by the Division of Child Protection and
Permanency (the Division) that child abuse and neglect allegations made in July
2017 were "not established." We reverse the decisions because the Division's
"not established," findings lacked fair support in the record. However, with
respect to the "not established" finding about child abuse against Doug involving
excessive physical discipline, we remand that issue to the Division for review
and to make specific factual findings to support its determination under N.J.A.C.
3A:10-7.3(c)(1) to (4).
B.C. (Beth) was ten-months old when in July 2017, the Division opened a
"spin-off" investigation for child abuse and neglect because Doug's nine-year
old daughter from another relationship, K.C. (Kim), complained to her mother
that Doug struck her with a belt, leaving marks. Doug had custody of Kim. A
Division caseworker interviewed Doug, Nancy and her brother, S.B. (Sam), who
resided with them. She examined Beth for any marks or bruises, but found none.
Beth was "appropriately cared for," and "well dressed and groomed." The
1 Pursuant to Rule 1:38-3(d)(12), we use initials to protect the confidentiality of the participants in these proceedings. A-1288-17T3 2 caseworker "redirect[ed]" Doug whenever he wanted to discuss the allegations
about Kim, explaining she was there to discuss Beth and could not discuss Kim.
She said the "Hudson County Prosecutor's Office [advised her] not to discuss
[Kim's] case with [Doug] until he is interviewed by their office." Another
caseworker was handling the allegations involving Kim.
Both Doug and Nancy told the caseworker about a domestic violence
incident in February 2017, which had become physical between them and
resulted in their arrests. Beth was asleep upstairs in her crib at the time. The
charges were dismissed by the next month. Nancy described the incident as
"dumb."
Doug was diagnosed with post-traumatic stress disorder (PTSD) "related
to his service in the Iraq War and later in police work," and received a disability
pension. The staff psychiatrist at the Veterans Administration confirmed Doug
had been compliant with medication monitoring since 2016; he was not a danger
to himself or others. After the domestic violence incident, Doug began weekly
counseling. Nancy told the caseworker there were "no issues" after that. Doug's
counselor and psychologist sent letters to the Division stating he was not a
danger to himself or others and was compliant with treatment. Nancy's brother
Sam, who occasionally babysat Beth, told the caseworker he did not have any
A-1288-17T3 3 concerns about domestic violence in the home, or with Doug and Nancy's ability
to parent or their mental health.
The Division found the allegations of "neglect due to family violence"
against Doug and Nancy, and the allegations of "physical abuse due to risk of
harm" against Doug were "not established" regarding Beth. The Division's
report concluded,
[t]hough [Beth] did not have any marks or bruises on her, her half-sister [Kim] was hit with a belt repeatedly on her backside leaving excessive bruising. Additionally both [Doug and Nancy] acknowledge that a domestic violence incident occurred between them in February 2017 while [Beth] slept in her crib. Therefore, there is not a preponderance of the evidence that abuse and neglect occurred, but there is evidence that [Beth] was placed at risk of harm by [Doug and Nancy] engaging in physical violence, and [Doug] using excessive physical discipline.[2]
The Division sent letters to Doug and Nancy on September 28, 2017,
advising the allegations of abuse and neglect were "not established." This meant
that "some evidence indicate[d] that a child was harmed or placed at some risk
of harm, but there [was] not a preponderance of the evidence that the child ha[d]
been abused or neglected." Further information from its investigation could not
2 There was no evidence of any physical discipline of Beth by Doug, Nancy or Sam. This reference is to the allegations regarding Kim. A-1288-17T3 4 be "disclosed by the Division except as permitted by N.J.S.A. 9:6-8.10a," but
the Division's "record of the incident" would be maintained in its files. The "not
established" finding was not subject to an administrative appeal.
Doug and Nancy appeal the September 28, 2017 decisions, arguing the
Division's "not established" finding was a final agency decision that was
arbitrary, capricious and unreasonable because there was insufficient evidence
that Beth was harmed or placed at risk of harm. They ask us to vacate the
Division's "not established" finding and to enter a finding of "unfounded," or in
the alternative, to remand the matter for an administrative hearing.
The scope of our review in an appeal from an administrative agency
decision is limited. Russo v. Bd. of Trs., Police & Fireman's Ret. Sys., 206 N.J.
14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). The agency's
decision should be upheld unless there is a "clear showing that it is arbitrary,
capricious, or unreasonable, or that it lacks fair support in the record." Ibid.
(quoting Herrmann, 192 N.J. at 27-28). We are not, however, bound by the
"agency's interpretation of a statute or its determination of a strictly legal issue."
Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
The Division is the agency charged with investigating child abuse and
neglect. The Division's regulations allow for four types of findings. See
A-1288-17T3 5 N.J.A.C. 3A:10-7.3(c)(1) to (4). Two of these, "substantiated" and
"established," require a finding of child abuse under N.J.S.A. 9:6-8.21(c).
N.J.A.C. 3A:10-7.3(c)(1) to (2). The other two findings, "not established" and
"unfounded," are made when the investigation does not indicate child abuse
under the statute. N.J.A.C. 3A:10-7.3(c)(3) to (4). A finding of "not
established" occurs when "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, but evidence indicates that the child was harmed or was placed at risk or
harm." N.J.A.C. 3A:10-7.3(c)(3).3
There is no right to an administrative hearing where the Division's finding
is "not established." Dep't of Children & Families v. D.B., 443 N.J. Super. 431,
442 (App. Div. 2015). A finding of "not established" is considered purely
investigatory in nature, not adjudicatory. See N.J. Dep't of Children & Families,
Institutional Abuse Investigation Unit v. S.P., 402 N.J. Super. 255, 270 (App.
Div. 2008). Because the Division's regulations do not permit an administrative
hearing for a "not established" finding, we "deem it a final decision subject to
3 "A parent is completely cleared of wrongdoing only if the allegation is 'unfounded'" meaning that the evidence did not show the child was "harmed or placed at risk of harm." N.J. Dept. of Children & Families v. R.R., 454 N.J. Super. 37, 40 (App. Div. 2018) (quoting N.J.A.C. 3A:10-7.3(c)(4)). A-1288-17T3 6 appellate review under Rule 2:2-3(a)(2)." R.R., 454 N.J. Super. at 40 n.3. For
a "not established" finding, "the evidence that a child was not abused or
neglected must be at least equal to or greater than the evidence the child was
abused or neglected." Id. at 41.
No party contends there was a preponderance of evidence that Beth was
abused or neglected. However, a "not established" finding is "'based on some
evidence, though not necessarily a preponderance of evidence, that a child was
harmed or placed at risk of harm.'" Ibid. (quoting 45 N.J.R. 738(a)). "[A] child
'at risk of harm' may involve a lesser risk than the 'substantial risk of ha rm' or
'imminent danger' required to establish abuse or neglect under the statute." Id.
at 42. The regulations contemplate that a "particular perpetrator" placed the
child at risk of harm. Id. at 43. An allegation is "unfounded" if the "evidence
indicates the alleged perpetrator did not harm the child or place the child at risk
of harm." Ibid. (citing N.J.A.C. 3A:10-7.3(c)(4)).
There was no evidence Beth was harmed by Doug or Nancy. Beth had no
marks or bruises. There was no evidence she was disciplined. She was well
dressed, groomed and cared for. During the domestic violence incident, Beth
was upstairs in her crib. The Division contends Beth was at risk of harm because
both parents were arrested after the domestic violence incident. However, there
A-1288-17T3 7 was another adult in the house, Sam, who could care for the child. There was
no evidence he was unavailable.
There is nothing in this record about the domestic violence incident other
than what Doug and Nancy explained. The evidence provided to us did not show
that Beth saw or heard the incident. As such, the Division did not show the
parties' conduct risked endangering Beth, either physically or emotionally. See
N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22 (App. Div.
2004) (finding no abuse or neglect where, among other things, there was no
evidence introduced "as a general matter" of a "causal relationship between
witnessing domestic violence and emotional distress in the young").
After the incident, Doug received counseling. His counselor and doctor
wrote to the Division advising Doug was not a risk to himself or others. The
Division did not provide any services to the family to address domestic violence
or Doug's PTSD.
The Division's "not established" finding against Doug also was based on
its conclusion that Doug used "excessive physical discipline" because Beth's
half-sister, Kim, "was hit with a belt repeatedly on her backside leaving
excessive bruising." The appendix here included a Harrison Police Department
report from July 31, 2017, about the incident; it reported the case was closed
A-1288-17T3 8 and disposition finished on August 1, 2017. There were no other reports in the
record about Doug's alleged use of excessive physical discipline. The
caseworker would not discuss the allegations with Doug because another
caseworker was handling that matter and she was told by the Hudson County
Prosecutor not to discuss it.
The Division did not explain what it relied on for its conclusion about
excessive physical discipline, other than that the allegation had been made.
There is no evidence the Division obtained or reviewed any reports by the other
caseworker about Kim or from the Hudson County Prosecutor's Office. We do
not know what that office concluded about the allegations. The Division simply
has not explained what evidence it relied on to conclude that Doug placed Beth
at risk of harm, it did not present any factual findings about Kim or evidence
that those fact findings, if any were made, applied to Beth. Its letters to Doug
and Nancy only repeated the regulatory language without providing specific
findings in support of its determination. We reverse the "not established"
determinations against Doug and Nancy because the findings lacked support in
the record.
The claim against Doug, however, involves an allegation of excessive
physical discipline with a belt. Whether corporal punishment is excessive is a
A-1288-17T3 9 fact-sensitive inquiry. See Dep't of Children & Families, Div. of Youth &
Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010). We are
constrained to remand the Division's decision regarding Doug back to the
agency, but only on the issue of excessive physical discipline. The Division
should review its existing investigation record about the physical abuse
allegation in 2017 involving Kim. It then should make specific factual findings
regarding the "spin-off" investigation of child abuse against Beth to support its
determination under N.J.A.C. 3A:10-7.3(c)(1) to (4). Because there is nothing
to indicate Nancy was involved in that matter, nor did the Division allege
physical abuse by her, we do not remand any issue regarding Nancy to the
Division.
Reversed with respect to the Division's "not established" finding against
Nancy. The Division shall deem the allegation to be "unfounded" and treat the
records accordingly. With respect to the Division's "not established" finding
against Doug based on an allegation of excessive physical discipline, the issue
is remanded. The Division's determination under N.J.A.C. 3A:10-7.3(c)(1) to
(4) must be supported by specific factual findings. We do not retain jurisdiction.
A-1288-17T3 10