                             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                        NOT FOR PUBLICATION WITHOUT THE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-3016-15T1

DEPARTMENT OF CHILDREN AND
FAMILIES, DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Petitioner-Respondent,

v.

S.M.,

        Respondent-Appellant.

___________________________

              Submitted June 1, 2017 – Decided July 24, 2017

              Before Judges Gooden Brown and Farrington.

              On appeal from the Department of Children and
              Families, Division of Child Protection and
              Permanency, DCF Case No. 16250240.

              Christian       A.    Pemberton,       attorney      for
              appellant.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Andrea M. Silkowitz,
              Assistant Attorney General, of counsel; Lori
              J. DeCarlo, Deputy Attorney General, on the
              brief).

PER CURIAM
     Appellant S.M.1 appeals from the February 1, 2016 final agency

decision of the Public Defender's Conflict Investigation Unit

(PDCIU), acting as an agent for the Department of Children and

Families (Department), finding that an allegation of abuse and

neglect against S.M. was "not established" pursuant to N.J.A.C.

10:129-7.3(c)2   and   N.J.S.A.   9:6-8.21.   S.M.   argues   that   the

evidence adduced through the investigation fails to meet the

standard for "not established" but rather shows that the allegation

was "unfounded."   We disagree and affirm.

                                       I.

     S.M., a caseworker with the Division of Child Protection and

Permanency (Division), a Division of the Department, has been

employed by the Division for ten years.        From September 26 to

November 23, 2015, she was assigned to supervise the visitation

of H.B. with her five-year-old adopted son, M.B., who was removed

from H.B.'s care along with other foster and adoptive children and

placed in the Division's custody in the wake of threats of gun

violence by H.B. and pending child endangerment criminal charges

against H.B.


1
  We use initials to protect the privacy of those involved and to
preserve the confidentiality of this matter.
2
   N.J.A.C. 10:129-7.3 was recodified as N.J.A.C. 3A:10-7.3
effective January 3, 2017. See 49 N.J.R. 98(a) (Jan. 3, 2017).
Where applicable, we cite the recodified regulations.

                                   2                            A-3016-15T1
       H.B. was entitled to supervised visits for two hours, twice

a week, at the Division office. Because the visits were classified

as "high alert visits," S.M. was required to see and hear the

parties at all times and follow other safety precautions, which

included random "walk-throughs" of the visitation area by the

security guard on duty, security screening upon entry by the guard

of all family members, and staff carrying a buzzer to alert the

guard if necessary.     S.M. described the visitation protocol as

follows:

            [H.B.] and her family sat in the first
            visiting room, Room #1, and [S.M.] sat outside
            the visiting room on a chair outside the door,
            with the door open.    The security guard on
            duty made rounds, but his desk is outside a
            closed door at the end of that hallway,
            closest to room #1. . . . [W]hen [M.B.]
            need[ed] to use the rest room, [S.M.] escorted
            [him] and his mother out into the lobby area
            where the guard was seated and waited inside
            the bathroom for them to finish. . . . [I]f
            [S.M.] needed to use the bathroom, and she
            [had] no relief, she would walk [M.B.] out
            into the lobby area where the security guard
            was seated, and had him sit in the lobby while
            being monitored by the guard until she [was]
            finished.

       On November 25, 2015, the Division received an e-mail referral

from    a   self-proclaimed   "former   journalist"   and   "government

activist" alleging "child endangerment" at a Division office based

on S.M. leaving the parties unsupervised during their November 16

and 23, 2015 visits.      To support the allegations, the referent

                                   3                            A-3016-15T1
attached two photos with captions purportedly posted on Facebook

by H.B.     Both photos depicted an image of an empty chair.            One

caption read "Last night we had our visit at the dyfs office.

[S.M.] left her chair empty many times and [at] one point fell

asleep!     I was about to take a picture and she woke up."             The

other caption read "We are a super huge threat so we must see

[M.B.] at the dyfs office. All workers must wear emergency buzzer.

Check this out, guard no longer takes apart my bags to search and

oh do you see the worker?????"

     As a result of the referral, pursuant to N.J.S.A. 9:6-8.11,

an investigation by the PDCIU was conducted.3            In the course of

the investigation, interviews with H.B., her paramour and her

adult     daughter   were   conducted   during   which    they   confirmed

observing S.M. sleeping, talking on the phone and walking away

from her post during visits.        Regarding the November 16 visit,

although H.B. could not recall exactly how long S.M. was gone,

H.B. provided a photo from her phone of S.M.'s empty chair to

document her absence at 6:20 p.m. Regarding the November 23 visit,

H.B. provided photos taken at 5:18 p.m., 5:43 p.m., and 6:50 p.m.,



3
  The PDCIU acts as an agent of the Division to investigate
allegations of abuse or neglect "in situations involving
[Division] employees and those persons with whom they have a
personal or professional relationship, or with whom their
objectivity may be compromised." N.J.A.C. 3A:10-1.3.

                                    4                              A-3016-15T1
each of which depicted S.M.'s empty chair.       In two of the photos,

a blue bag identified by H.B. as S.M.'s bag was depicted on a

chair next to S.M.'s purported empty chair.           According to H.B.,

at one point that evening, she observed S.M. sleeping in her chair

but S.M. woke up when she tried to take her picture.           H.B. also

confirmed posting the photos with the captions on Facebook and

being contacted via Facebook by an individual who identified

himself as a journalist.

     S.M.   was   also   interviewed   during   the   investigation   and

disputed the allegations.     Although she specifically denied ever

sleeping during a visit, she admitted taking calls and receiving

messages while supervising visits but asserted that she remained

in her chair outside of the visitation room.      When confronted with

the photos of her empty chair containing only a blue bag, S.M.

confirmed that the bag belonged to her but explained that any

absences from her post were for bathroom breaks.            According to

S.M., during bathroom breaks for M.B., she accompanied H.B. and

M.B. to the bathroom and during bathroom breaks for herself, she

obtained coverage in accordance with office protocol.

     S.M. explained that at some point during the November 16

visit, a co-worker sent her a text asking to use her employee

access card.      The co-worker confirmed that S.M. was positioned

outside the visitation room when she came to retrieve the card.

                                   5                             A-3016-15T1
S.M. also stated that during the November 23 visit, she sent a

text at 6:49 p.m. to another co-worker, asking to be relieved to

use the bathroom, and she was immediately relieved.                     The co-worker

confirmed S.M.'s account and provided a screenshot of the text

message documenting the exchange.

     The investigation concluded that "the allegation of neglect

for inadequate supervision" by S.M. was "not established."                          The

report   noted   that     while   "[t]he        information       gathered   in   this

investigation did not constitute child abuse or neglect as defined

by . . . [N.J.S.A. 9:6-8.21], . . . the child was harmed or placed

at risk of harm."       S.M. was notified of the investigative finding

through correspondence dated February 1, 2016, and this appeal

followed.

                                              II.

     On appeal, S.M. argues, "there is no indicia that the standard

of preponderance of the evidence was applied" in the PDCIU's

conclusion.      Rather,    S.M.       asserts      that      "[t]he   investigator's

'evaluation'     is   simply      a    recitation        of    evidence[,]    not    an

analysis[.]"     As such, according to S.M., "the findings of the

[PDCIU] fail both factually and as a matter of law" and are

therefore "arbitrary and capricious." S.M. urges that the findings

of the PDCIU be set aside and the accusations against her be deemed

"'unfounded'     within     the       meaning       of   N.J.A.C.      10:129-7.3(c)"

                                          6                                   A-3016-15T1
instead.     S.M. argues further that due process and our prior

decisions demand that the notification include language clearly

explaining "that the investigation is inconclusive, and is not

adjudicatory."    We reject both arguments.

     We are guided by well-established principles in our review

of the Department's decision.      A finding of "not established" does

not entitle a party to a hearing, see N.J.A.C. 3A:5-4.3(a)(2), but

is deemed a final agency decision appealable as of right to the

Appellate Division. R. 2:2-3(a)(2). The scope of appellate review

of an administrative agency's final determination is limited.            In

re Stallworth, 208 N.J. 182, 194 (2011).

     In    determining   whether   an   agency   action   is   arbitrary,

capricious, or unreasonable, we must make three inquiries:

            (1) whether the agency's action violates
            express or implied legislative policies, that
            is, did the agency follow the law; (2) whether
            the record contains substantial evidence to
            support the findings on which the agency based
            its action; and (3) whether in applying the
            legislative policies to the facts, the agency
            clearly erred in reaching a conclusion that
            could not reasonably have been made on a
            showing of the relevant factors.

            [In re Herrmann, 192 N.J. 19, 28 (2007)
            (quoting Mazza v. Bd. of Trs., 143 N.J. 22,
            25 (1995)).]

Where an agency satisfies this standard of review, we must give

"substantial deference to the agency's expertise and superior


                                    7                             A-3016-15T1
knowledge of a particular field."        Id. at 28.       We must defer even

if we would have reached a different result.               In re Carter, 191

N.J. 474, 483 (2007).

     In short, we are not permitted to substitute our judgment

"for that of [the] administrative agency."           Barrick v. State, 218

N.J. 247, 260 (2014) (alteration in original) (citation omitted).

Finally, there is a "strong presumption of reasonableness [that]

attaches to the actions of the administrative agencies."                 In re

Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In re

Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J.

306 (1994)).

     With these principles in mind, we discern no factual or legal

basis   to   overturn   the    Department's    final      decision   that   the

allegation of abuse was "not established."                If the Department

evaluates    an   allegation   of   abuse,    it   must    determine   if   the

allegation is "substantiated," "established," "not established,"

or "unfounded."     See N.J.A.C. 3A:10-7.3(c).         After completing its

investigation, the Department must "notify the alleged perpetrator

and others of the outcome of its investigation."                Matter of E.

Park High Sch., 314 N.J. Super. 149, 155 (App. Div. 1998).

     N.J.A.C.     3A:10-7.3(c)(3)     defines      "not     established"      as

follows:



                                     8                                 A-3016-15T1
          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.

An allegation is deemed "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. 3A:10-7.3(c)(4).]

     An "abused or neglected child" is defined in N.J.S.A. 9:6-

8.21(c) in pertinent part as

          [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 . . . 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,
          including the infliction of excessive corporal
          punishment; 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).]

"Parent or guardian" as defined by N.J.S.A. 9:6-8.21(a) includes

"a teacher, employee, or volunteer . . . of an institution who is

responsible for the child's welfare and any other staff person of




                                9                          A-3016-15T1
an    institution   regardless        of    whether         or    not   the   person     is

responsible for the care or supervision of the child."

       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. v. Dep't of Human Servs., 157 N.J.

161, 178 (1999); 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.

       Applying the appropriate standard of review, we conclude that

the   Department's       determination          that    the      allegation     was   "not

established" pursuant to N.J.A.C. 3A:10-7.3(c)(3) is supported by

substantial evidence in the record and is neither arbitrary,

capricious, nor unreasonable.               We therefore find no reason to

disturb the Department's determination.                     While the record clearly

demonstrates that M.B. was not abused or neglected pursuant to

N.J.S.A.      9:6-8.21(c),    the     finding          of    "not   established"       was

appropriate because the evidence indicated that M.B. was placed

at risk of harm by S.M.'s failure to maintain constant audio and

visual contact during "high alert" supervised visits.                         The witness

statements, photos and S.M.'s own admissions that she took calls

and received messages during visits support the conclusion.

                                           10                                     A-3016-15T1
       We also reject S.M.'s contention that the notification should

include language clearly explaining "that the investigation is

inconclusive, and is not adjudicatory."            In In re R.P., 333 N.J.

Super. 105, 113 (App. Div. 2000), we stated 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."

(citation omitted).        See also Dep't of Children & Families v.

D.B., 443 N.J. Super. 431, 443-44 (App. Div. 2015); N.J. Dep't of

Children & Families' Institutional Abuse Investigation Unit v.

S.P., 402 N.J. Super. 255, 270-71 (App. Div. 2008); In re A.I.,

393 N.J. Super. 114, 131 (App. Div. 2007).

       "We did, however, find that teachers do have the right to

challenge    the     wording   of   the      findings   of    the    Department"

communicated to their employer.             D.B., supra, 443 N.J. Super. at

444 (citing S.P., supra, 402 N.J. Super. at 270-71).                    However,

"'[d]ue    process    is   flexible    and     calls    for   such    procedural

protections as the particular situation demands.'"                  R.P., supra,

333 N.J. Super. at 113 (quoting Morrissey v. Brewer, 408 U.S. 471,

481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)).                   Here,

given the fact that the investigating agency and the employer are

essentially the same entity, we find no procedural defect or

                                       11                                A-3016-15T1
violation of due process in the Department's failure to include

S.M.'s requested language in the notification.   Moreover, neither

D.B., S.P., nor In re A.I. dictates a contrary conclusion.

    Affirmed.




                              12                             A-3016-15T1
