                             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                         NOT FOR PUBLICATION WITHOUT THE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-0729-15T2

STATE OF NEW JERSEY,
DEPARTMENT OF CHILDREN
AND FAMILIES,

        Respondent,

v.

Y.N.,

        Appellant.

____________________________________

              Argued November 2, 2016 – Decided           March 3, 2017

              Before    Judges    Fuentes,    Carroll    and   Gooden
              Brown.

              On appeal from the Department of Children and
              Families.

              Clara S.       Licata     argued     the    cause    for
              appellant.

              Erin O'Leary, Assistant Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney; Ms.
              O'Leary, on the brief).

              Deric Wu, Assistant Deputy Public Defender,
              argued the cause for amicus curiae Office of
              Parental Representation (Joseph E. Krakora,
             Public Defender, attorney; Mr. Wu, of counsel
             and on the brief).

PER CURIAM

       On June 29, 2011, the Family Part found the Division of Child

Protection and Permanency (hereinafter "the Division") proved by

a preponderance of the evidence that Y.N. (Yvonne)1 abused or

neglected her infant son, Paul, by using methadone before and

during her pregnancy.        Yvonne was prescribed methadone by a

physician as part of a medically sanctioned treatment plan.          This

court affirmed the Family Part's finding of abuse and neglect

based on evidence showing Paul suffered "severe withdrawal, which

required treatment in the NICU and numerous doses of morphine over

an extended period of time[.]"    N.J. Div. of Youth & Family Servs.

v. Y.N., 431 N.J. Super. 74, 82 (App. Div. 2013).

       The    Supreme   Court   granted    Yvonne's     petition      for

certification, 216 N.J. 13 (2013), and reversed, holding "that,

absent exceptional circumstances, a finding of abuse or neglect

cannot be sustained based solely on a newborn's enduring methadone

withdrawal following a mother's timely participation in a bona

fide   treatment   program   prescribed   by   a   licensed   healthcare



1
  To preserve the confidentiality of these proceedings, we use
pseudonyms to identify the child and his parents.     R. 1:38-
3(d)(12).


                                   2                             A-0729-15T2
professional to whom she has made full disclosure."      N.J. Div. of

Child Prot. & Permanency v. Y.N., 220 N.J. 165, 168 (2014).        The

Court remanded the matter to this court "to decide whether there

is sufficient credible evidence in the record to support the

finding of abuse or neglect on an alternate theory articulated by

the family court."    Id. at 186.

    On remand, this court reviewed the evidence the Division

presented at the fact-finding hearing before the Family Part and

concluded that the record was "inadequate to permit a meaningful

determination of the alternative theories[]" of abuse or neglect.

N.J. Div. of Youth & Family Servs. v. Y.N., No. A-5880-11 (App.

Div. Mar. 18, 2015) (slip op. at 5).        This court concluded that

"the fairest procedure to all parties is a remand to the Family

Part for a de novo fact-finding."       Ibid.

    On July 31, 2015, the Supreme Court granted Yvonne's petition

for certification, summarily reversed this court's decision to

remand, and vacated the Family Part's 2011 finding of abuse and

neglect.   N.J. Div. of Child Prot. & Permanency v. Y.N., 222 N.J.

308, 308–09 (2015).

           As the burden of presenting sufficient
           credible evidence of abuse and neglect is on
           the   Division,  the   Appellate   Division's
           conclusion in this regard is tantamount to a
           finding that the Division failed to satisfy
           that   burden.  The   panel's   determination


                                    3                         A-0729-15T2
            resolves the question posed by this Court in
            its remand in favor of petitioner.

            [Id. at 309.]

    On August 13, 2013, while Yvonne's first appeal to the Supreme

Court was pending, a person who identified herself as Paul's

paternal aunt called the Division's "Hotline" and alleged that

Yvonne "is a [h]eroin addict and she continues to use."                          As

described    in   the   Division's       screening    summary,   the     reporter

claimed that Paul's father, Phil, went to Yvonne's home the

previous    night    "and   had     to   call   the   police   four    times[.]"

According to the reporter, Phil stated there were "'drug addicts'

throwing    bricks   and    pipes    through    [Yvonne's]     windows   because

[Yvonne] owe[d] them money."             On that same day, Phil filed an

order to show cause in the Family Part.                Phil sought to obtain

custody of his son, whom he believed was "in imminent danger of

physical harm."

    Phil's custody application was transferred to a Family Part

judge who was hearing Yvonne's application to obtain a domestic

violence temporary restraining order against Phil.                    During the

hearing, the judge informed Yvonne that Phil had filed an order

to show cause seeking custody of Paul, based on his belief that

Yvonne was "back using drugs[.]"                This prompted the following

colloquy between Yvonne and the court.


                                         4                                A-0729-15T2
          THE COURT: [Yvonne], what is your position
          regarding this request to have custody at this
          time?

          [YVONNE]: Your Honor, I feel that at this
          point, I have relapsed --

          THE COURT: Okay.

          [YVONNE]: -- and I feel that my son's father's
          concerns are legitimate.

          THE COURT: All right.

          [YVONNE]: And I appreciate his concern because
          he's done nothing --

          THE COURT: I appreciate -- the [c]ourt
          appreciates the fact that you're being honest
          about it and are --

          [YVONNE]: Yes.

          THE COURT: -- and care enough about your son
          that you are -- you know, that you're willing
          to, at this point, grant [Phil] physical
          custody.

          [YVONNE]: I am. Yes. And my son deserves to
          be with his father until I seek the adequate
          treatment that I deserve for myself, so that
          I can be the proper mother --

     The subject matter of the call Phil's sister made to the

Division's Hotline involved two separate incidents.     The record

includes two Newark Police Department incident reports documenting

what occurred at Yvonne's residence.    The first incident occurred

at 10:05 p.m. on August 11, 2013.      The police report identified

the person who called to report "criminal mischief" as the manager


                                  5                         A-0729-15T2
of the property where Yvonne and Paul resided at the time.                   Two

police officers responded to investigate.

      According    to    "the   victim,"    later   identified   as   Yvonne's

mother, "she was watching television when she heard a knock at the

front door."     When she responded, she saw an African American man

and a white man, neither of whom she recognized.            Because she did

not know these men, "she refused to open the door."              The two men

"proceeded to the backyard and began to forcibly kick the rear

door."     The men damaged her rear door and also shattered the

kitchen and car windows.        Yvonne told the responding officers that

she knew both men.       Although she did not know where they lived or

their actual names, Yvonne told the officers "the street names"

of both of these men. The African American man, whom she described

as approximately twenty-six to twenty-eight years old, she knew

as "Cy."      She knew the white man only as "Powder."

      The second incident occurred at 6:44 a.m. on August 12, 2013.

The police report again identified the person who called as the

manager of the property.         Two police officers were dispatched to

investigate what was first described as "a burglary in progress."

The caller described the suspects as "two black males[.]"              The two

men   "were    outside    the   residence    screaming[,]   ['G]ive     me    my

money[.']"     They then proceeded to the rear of the location, where

"one actor broke the rear window and the other actor began to kick

                                      6                                A-0729-15T2
the rear door[,] causing some damage[.]"     Both men fled the scene

before the police officers arrived.

     Two Division investigators responded to Yvonne's residence

on August 13, 2013.    They described the property as a "beige and

white   multi-family   home[.]"    The   investigators   "immediately

noticed" in their report "that there was no visible broken glass

or damage to the home."      They stayed outside the property for

approximately forty-five minutes to determine whether there was

any indication of illicit drug activity.         They did not find

anything to suggest any criminal activity had taken place.     Yvonne

moved out of this property the following morning.

     Division investigators met personally with Yvonne on August

15, 2013.   Paul was present and appeared to be in good health.

Yvonne was alert and responsive and did not appear to be under the

influence of any illicit drugs.    She admitted that the August 11,

2013 and August 12, 2013 incidents of vandalism were related to

her history of substance abuse.    Furthermore, these incidents were

the reasons she moved out of her home.     She denied using drugs at

the time and stated she was receiving methadone treatment.         She

claimed to have been sober and drug-free for two years.            The

Division concluded its investigation, finding the allegations

against Yvonne were "unfounded."

     On July 7, 2014, the Division revisited its finding of neglect

                                  7                           A-0729-15T2
stemming from the August 13, 2013 referral.      The Division changed

its prior finding from "unfounded" to "substantiated" based on new

information it received following the completion of the earlier

investigation. By letter dated July 9, 2014, the Division informed

Yvonne that it had "determined that neglect was substantiated for

Substantial   Risk   of   Physical   Injury/Environment   Injurious    to

Health and Welfare[.]"      The letter apprised Yvonne of her right

to appeal the decision and request "an Office of Administrative

Law (OAL) Hearing."       On August 1, 2014, Yvonne appealed and

requested a hearing before the OAL.      She also filed an application

to compel the Division to "pay for Public Defender counsel" and

to pay for the cost of an expert if necessary.

     On September 19, 2014, Yvonne filed a motion for summary

disposition of the matter before it was transmitted to the OAL.

The Division Director denied the motion on December 1, 2014, and

ordered that the matter be transmitted to the OAL for a hearing.

On December 26, 2014, the Director denied Yvonne's application for

counsel and expert fees.     On August 27, 2015, the Division sent a

form-letter to the Administrative Law Judge (ALJ) assigned to the

case, advising that the Department of Children and Families (DCF)

had "modified the finding[] . . . , resulting in a change from

'substantiated' to . . . 'established[.]'"        The form-letter was

signed by Brenda Phillips, MSW, Administrative Analyst I, DCF-

                                     8                          A-0729-15T2
Administrative Hearings Unit.

       In a Notice of Change of Child Abuse or Neglect Finding dated

September 23, 2015, DCF Newark-Northeast Local Office Manager

Monica Chavez notified Yvonne, the Essex County Area Director, and

the Supervising Family Service Specialists I and II that the DCF

had     formally   changed      its       investigative   finding       from

"substantiated" to "[e]stablished."

       In this appeal, Yvonne argues she has the right to a hearing

before an ALJ to challenge the evidential basis for the Division's

finding that child abuse and neglect has been "established" against

her.   We agree and remand this matter for a hearing before an ALJ

for the reasons expressed in N.J. Div. of Child Prot. & Permanency

v. V.E., ____ N.J. Super. _____ (App. Div. 2017).            Because "an

established finding is a finding of child abuse or neglect under

N.J.S.A. 9:6-8.21(c)(4), subject to disclosure as permitted by

N.J.S.A. 9:6-8.10a(b) and other statutes," we conclude that "due

process considerations require a party against whom abuse or

neglect is established be afforded plenary administrative review."

Id. (slip op. at 3).

       Reversed and remanded.    We do not retain jurisdiction.




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