                                       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                                NOT FOR PUBLICATION WITHOUT THE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.




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                                       10
