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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1688-15T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
S.P.,
Defendant-Appellant,
and
A.P.,
Defendant. ____________________________________
IN THE MATTER OF C.P.,
A Minor. ____________________________________
Telephonically Argued April 27, 2017 – Decided November 28, 2017
Before Judges Suter and Grall.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0161-15.
Richard A. Foster, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Foster, of counsel and on the brief). Peter D. Alvino, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill Stephens-Flores, Deputy Attorney General, on the brief).
Charles Ouslander, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ouslander, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
S.P. appeals the February 19, 2015 order that dismissed
without prejudice the Division of Child Protection and
Permanency's (DCPP) Title Nine litigation in which she requested
a hearing to contest DCPP's administrative finding that
"established" she abused and neglected her child, C.P.1 Although
the Title Nine action was properly dismissed without prejudice,
because S.P. requested a hearing to contest DCPP's administrative
decision that established she abused and neglected C.P., we remand
that issue to DCPP for transmittal to the Office of Administrative
Law (OAL) for a hearing.
1 S.P. also appealed the April 9, 2015 Summary Finding Order entered under Title Thirty following trial that continued services to S.P. and her child because she "[was] unable to adequately care for the child." Because her brief does not address this order, she has abandoned the issues raised in the Title Thirty trial. See Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).
2 A-1688-15T4 S.P. had a one-car accident in November 2014, when she passed
out behind the wheel after leaving church. C.P. was not in the
car. The police found a bottle of prescribed oxycodone in the car
and charged S.P. with driving under the influence.2 The hospital
where S.P. was treated contacted DCPP.
S.P. was the subject of five earlier referrals to DCPP for
neglect, all regarding alleged substance abuse and all determined
to be unfounded. S.P. told DCPP that she was addicted to opiates,
which were first prescribed for her in 1996 for back injuries from
a car accident. She had attended inpatient and outpatient
substance abuse treatment programs and suffered occasional
relapses. After this accident, she increased her attendance at
an intensive outpatient program from three to five days per week.
Her treating physician confirmed prescribing oxycodone, but was
not aware of a current addiction. C.P.'s father told DCPP he
believed S.P. was addicted to prescription opiates as she "has
always abused her prescribed medications." S.P.'s hair follicle
test was positive for oxycodone and benzodiazepines.
DCPP's "Investigation Summary" from December 11, 2014,
concluded that "the allegations of [s]ubstantial [r]isk of
[p]hysical [i]njury/[e]nvironment [i]njurious to [h]ealth and
2 The charge was dismissed in April 2015.
3 A-1688-15T4 [w]elfare against [S.P.] were ESTABLISHED." The summary reported
that S.P. "failed" to stay drug free and "[a]ll along [S.P.] was
caring for her child [C.P.] and using prescribed medications for
her alleged back pain." The record does not show whether or how
S.P. was advised by DCPP of its determination.
On December 2, 2014, DCPP filed a verified complaint in the
Family Part under N.J.S.A. 9:6-8.21 to -8.73 (Title Nine) and
N.J.S.A. 30:4C-11 to -15.4 (Title Thirty) for the care and
supervision of C.P. The court upheld removal of C.P. from S.P.'s
physical custody, placed the child under DCPP's care and
supervision and continued the child's physical custody with his
father, A.P. S.P. was ordered to attend various evaluations and
substance abuse treatment. Her visitations with the child were
supervised.
At a case management hearing in February 2015, DCPP presented
its Investigation Summary that "established" S.P. abused or
neglected her son. S.P.'s counsel requested "a fact-finding on
the issue of abuse and neglect," but the judge granted DCPP's
request to withdraw the Title Nine complaint without prejudice,
denied S.P.'s request for a hearing or for a dismissal with
prejudice, and continued the proceeding solely under Title Thirty.
Following a hearing, the judge issued an order on April 9,
2015, that the child was in need of "care and supervision or
4 A-1688-15T4 custody" by DCPP because S.P. was unable to care for him based on
her "extensive history of treatment and ongoing treatment for drug
and alcohol abuse." The judge found that S.P.'s "failed attempts
at recovery occurred [when she] . . . had custody of the child."
In subsequent compliance reviews, S.P. was compliant with
services, tested negative for drugs, and was allowed to exercise
unsupervised visitation with C.P. The parties were able to agree
on custody and parenting time as memorialized in a consent order.
The Title Thirty litigation was terminated on November 5, 2015,
after a finding by the court that "conditions have been
remediated."
On appeal, S.P. contends she was denied due process when,
because of the dismissal without prejudice of the Title Nine case,
she was not able to have a fact-finding hearing in the Family Part
to contest DCPP's administrative finding under N.J.A.C. 10:129-
7.3(c) that "established" she abused and neglected C.P. Based on
our decision in N.J. Div. of Child Prot. & Permanency v. V.E., 448
N.J. Super. 374 (App. Div. 2017), we agree that S.P. should have
had an administrative hearing to contest DCPP's finding that
"established" her abuse and neglect.
An abused or neglected child is defined in pertinent part as:
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of
5 A-1688-15T4 the failure of his parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . or by any other acts of a similarly serious nature requiring the aid of the court . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
DCPP investigates allegations of child abuse and neglect under
that statute by following "the defined child protection
investigation process, as authorized by N.J.S.A. 9:6-8.11 and
promulgated regulations, N.J.A.C.
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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-1688-15T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
S.P.,
Defendant-Appellant,
and
A.P.,
Defendant. ____________________________________
IN THE MATTER OF C.P.,
A Minor. ____________________________________
Telephonically Argued April 27, 2017 – Decided November 28, 2017
Before Judges Suter and Grall.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0161-15.
Richard A. Foster, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Foster, of counsel and on the brief). Peter D. Alvino, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jill Stephens-Flores, Deputy Attorney General, on the brief).
Charles Ouslander, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ouslander, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
S.P. appeals the February 19, 2015 order that dismissed
without prejudice the Division of Child Protection and
Permanency's (DCPP) Title Nine litigation in which she requested
a hearing to contest DCPP's administrative finding that
"established" she abused and neglected her child, C.P.1 Although
the Title Nine action was properly dismissed without prejudice,
because S.P. requested a hearing to contest DCPP's administrative
decision that established she abused and neglected C.P., we remand
that issue to DCPP for transmittal to the Office of Administrative
Law (OAL) for a hearing.
1 S.P. also appealed the April 9, 2015 Summary Finding Order entered under Title Thirty following trial that continued services to S.P. and her child because she "[was] unable to adequately care for the child." Because her brief does not address this order, she has abandoned the issues raised in the Title Thirty trial. See Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).
2 A-1688-15T4 S.P. had a one-car accident in November 2014, when she passed
out behind the wheel after leaving church. C.P. was not in the
car. The police found a bottle of prescribed oxycodone in the car
and charged S.P. with driving under the influence.2 The hospital
where S.P. was treated contacted DCPP.
S.P. was the subject of five earlier referrals to DCPP for
neglect, all regarding alleged substance abuse and all determined
to be unfounded. S.P. told DCPP that she was addicted to opiates,
which were first prescribed for her in 1996 for back injuries from
a car accident. She had attended inpatient and outpatient
substance abuse treatment programs and suffered occasional
relapses. After this accident, she increased her attendance at
an intensive outpatient program from three to five days per week.
Her treating physician confirmed prescribing oxycodone, but was
not aware of a current addiction. C.P.'s father told DCPP he
believed S.P. was addicted to prescription opiates as she "has
always abused her prescribed medications." S.P.'s hair follicle
test was positive for oxycodone and benzodiazepines.
DCPP's "Investigation Summary" from December 11, 2014,
concluded that "the allegations of [s]ubstantial [r]isk of
[p]hysical [i]njury/[e]nvironment [i]njurious to [h]ealth and
2 The charge was dismissed in April 2015.
3 A-1688-15T4 [w]elfare against [S.P.] were ESTABLISHED." The summary reported
that S.P. "failed" to stay drug free and "[a]ll along [S.P.] was
caring for her child [C.P.] and using prescribed medications for
her alleged back pain." The record does not show whether or how
S.P. was advised by DCPP of its determination.
On December 2, 2014, DCPP filed a verified complaint in the
Family Part under N.J.S.A. 9:6-8.21 to -8.73 (Title Nine) and
N.J.S.A. 30:4C-11 to -15.4 (Title Thirty) for the care and
supervision of C.P. The court upheld removal of C.P. from S.P.'s
physical custody, placed the child under DCPP's care and
supervision and continued the child's physical custody with his
father, A.P. S.P. was ordered to attend various evaluations and
substance abuse treatment. Her visitations with the child were
supervised.
At a case management hearing in February 2015, DCPP presented
its Investigation Summary that "established" S.P. abused or
neglected her son. S.P.'s counsel requested "a fact-finding on
the issue of abuse and neglect," but the judge granted DCPP's
request to withdraw the Title Nine complaint without prejudice,
denied S.P.'s request for a hearing or for a dismissal with
prejudice, and continued the proceeding solely under Title Thirty.
Following a hearing, the judge issued an order on April 9,
2015, that the child was in need of "care and supervision or
4 A-1688-15T4 custody" by DCPP because S.P. was unable to care for him based on
her "extensive history of treatment and ongoing treatment for drug
and alcohol abuse." The judge found that S.P.'s "failed attempts
at recovery occurred [when she] . . . had custody of the child."
In subsequent compliance reviews, S.P. was compliant with
services, tested negative for drugs, and was allowed to exercise
unsupervised visitation with C.P. The parties were able to agree
on custody and parenting time as memorialized in a consent order.
The Title Thirty litigation was terminated on November 5, 2015,
after a finding by the court that "conditions have been
remediated."
On appeal, S.P. contends she was denied due process when,
because of the dismissal without prejudice of the Title Nine case,
she was not able to have a fact-finding hearing in the Family Part
to contest DCPP's administrative finding under N.J.A.C. 10:129-
7.3(c) that "established" she abused and neglected C.P. Based on
our decision in N.J. Div. of Child Prot. & Permanency v. V.E., 448
N.J. Super. 374 (App. Div. 2017), we agree that S.P. should have
had an administrative hearing to contest DCPP's finding that
"established" her abuse and neglect.
An abused or neglected child is defined in pertinent part as:
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of
5 A-1688-15T4 the failure of his parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . or by any other acts of a similarly serious nature requiring the aid of the court . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
DCPP investigates allegations of child abuse and neglect under
that statute by following "the defined child protection
investigation process, as authorized by N.J.S.A. 9:6-8.11 and
promulgated regulations, N.J.A.C. 3A:10-7.3(b)." V.E., supra, 448
N.J. Super. at 386.
DCPP's regulations allow for four types of findings:
substantiated, established, not established, and unfounded. See
N.J.A.C. 3A:10-7.3(c)(1)-(4). While "substantiated" and
"established," require a finding by DCPP of child abuse under
N.J.S.A. 9:6-8.21(c), the other two findings, "not established"
and "unfounded," are made when DCPP's investigation does not
indicate child abuse. N.J.A.C. 3A:10-7.3(c)(1)-(4).
An "established" finding occurs when "the preponderance of
the evidence indicates that a child is an 'abused or neglected
child' as defined, 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).
The regulations allow for a fact finding hearing only when DCPP's
6 A-1688-15T4 investigation has "substantiated" child abuse or neglect, but not
when the finding of child abuse or neglect is "established."
We recently held in V.E., supra, 448 N.J. Super. at 402, that
"when [DCPP] 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."
In V.E., DCPP investigated an allegation that V.E. had abused
or neglected her child. DCPP made a finding under N.J.A.C. 3A:10-
7.3(c)(2) that "established" abuse and neglect by V.E. DCPP filed
a complaint under Title Nine and Title Thirty for the care, custody
and supervision of the child. When DCPP sought to dismiss the
Title Nine portion of the complaint and proceed solely under Title
Thirty, V.E. objected, and asked for a hearing on the
administrative finding that established her abuse and neglect.
The judge denied V.E.'s request, and ordered the Title Nine action
dismissed without prejudice.
We concluded in V.E. that due process required an
administrative hearing because DCPP's determination that
"established" V.E.'s abuse or neglect had "broad impact." V.E.,
7 A-1688-15T4 supra, 448 N.J. Super. at 395.3 We agreed that the Title Nine
litigation was properly dismissed without prejudice because
reunification was achieved and DCPP concluded abuse and neglect
was not substantiated. Also, appellate review alone was not
adequate because "the determination of disputed facts, including
credibility determinations, [was] not the function of this court."
Id. at 401-02 (citing N.J. Div. of Youth & Family Servs. v. M.R.,
314 N.J. Super. 390, 411-12 (App. Div. 1998)). Thus in V.E., we
affirmed the dismissal of the Title Nine litigation, reversed the
DCPP's denial of an adjudicative hearing and remanded the matter
to the OAL for a hearing. 448 N.J. Super. at 404.
V.E.'s holding applies here. Using the same regulations that
we examined in V.E., DCPP made an administrative finding that the
allegation of abuse or neglect against S.P. was "established."
Similar to V.E., S.P. requested a hearing in the Title Nine
litigation but that litigation was withdrawn by DCPP, leaving her
without a hearing on DCPP's finding of abuse and neglect. We
agree the Family Part judge correctly ordered the dismissal without
3 The impact included the release of DCPP's "abuse and neglect records" pursuant to N.J.S.A. 9:6-8.10a(b) to "[a] lengthy list of institutions, governmental entities, and persons," set forth in N.J.S.A. 9:6-8.10a(b)(1) to (23), -8.10a(c) to (g). Id. at 392. The records could be used by DCPP for future actions involving childcare placement and termination of parental rights. Ibid.
8 A-1688-15T4 prejudice of the Title Nine litigation when DCPP requested this.
However, under DCPP regulations, S.P. could not obtain an
administrative hearing to contest the finding that established her
abuse and neglect. As we held in V.E., "an administrative hearing
is required to contest the [DCPP's] conclusion abuse or neglect
is established." 448 N.J. Super. at 400.
S.P. contends the hearing should be conducted in the Family
Part. However, S.P. is challenging a decision by DCPP. This
court has exclusive jurisdiction to review the final decisions of
State agencies. R. 2:2-3(a). Because we determine a hearing is
necessary, we remand this matter to DCPP for transmittal to the
Office of Administrative Law (OAL) for a hearing.
Affirmed and transferred to DCPP for transmittal to the OAL
for a hearing.
9 A-1688-15T4