                                      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                                NOT FOR PUBLICATION WITHOUT THE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- 2218-18T4

NEW JERSEY DIVISION
OF CHILDREN AND FAMILIES,

          Plaintiff-Respondent,

v.

B.C.,

     Defendant-Appellant.
_______________________________

                   Submitted April 20, 2020 – Decided July 14, 2020

                   Before Judges Rothstadt and Moynihan.

                   On appeal from the New Jersey Department of Children
                   and Families, Division of Child Protection and
                   Permanency, Case Id No. 17291358.

                   Williams Law Group, LLC, attorneys for appellant
                   (Allison C. Williams, of counsel and on the brief;
                   Victoria Danielle Miranda, on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Mary C. Zec, Deputy Attorney
                   General, on the brief).
PER CURIAM

      Defendant, B.C. the father of a now eleven-year-old son, appeals from the

plaintiff's, the Department of Children and Families, Division of Child

Protection and Permanency (Division), January 15, 2019 final agency

determination that allegations it had received about defendant having abused or

neglected his son were "not established." The finding was based upon the

Division's investigation that arose after the son arrived at his school with an

injury to his head that the child explained was caused by defendant pushing him,

which led the child to hit his head against a table.

      The Division's January 15, 2019 letter to defendant informing him of the

"[n]ot [e]stablished" finding did not state what evidence the Division relied upon

in making its decision. The letter advised that "[a] record of the incident [would]

be maintained in [the Division's] files.       Current law provide[d] that this

information may not be disclosed by the Division except as permitted by

N.J.S.A. 9:6-8.10[(a)]. A finding of [n]ot [e]stablished [was] not subject to an

administrative appeal."    It also stated that no "further services" would be

provided to the family.

     On appeal, defendant argues that the finding of "not established" was

arbitrary, capricious, and unreasonable, and therefore, the Division should


                                                                           A-2218-18T4
                                         2
vacate the finding and change it to "unfounded," or that the matter be remanded

for an administrative hearing. Defendant contends the Division's finding was

not supported by any evidence "that the child was harmed or placed at risk of

harm by" defendant, other than the child's initial interview where he alleged

defendant pushed him. Defendant also relies upon the fact that his son did not

need any medical attention. He contends that a finding of "not established"

should only be used when parents are determined to be negligent, which he

argues is not the case here.

      In the alternative, defendant argues that he was entitled to a hearing to

challenge the investigatory finding of "not established" to protect his due

process rights, as the finding can "be used as an aggravating factor to

demonstrate a pattern of abuse or neglect by the alleged perpetrator" and the

finding will be in the Division's system forever.

      After this appeal was submitted for our consideration, on May 27, 2020,

the New Jersey Supreme Court issued its opinion in S.C. v. N.J. Dep't of

Children & Families, ___ N.J. ___ (2020), in which it addressed similar

contentions under similar circumstances. Addressing, among other issues, the

sufficiency of the Division's notice of its determination and the parent's right to

an adjudicatory hearing, the Court held that such hearings were not required, id.


                                                                           A-2218-18T4
                                        3
at ___ (slip op. at 41-42), but the parent was entitled to "meaningful" notice of

the determination that "should include a summary of the support for the finding,

and [that] the [Division's] reasoning should be transparently disclosed." Id. at

___ (slip op. at 43).      Moreover, the parent must be given an informal

"opportunity to rebut the [Division's] conclusion or supplement the record [and]

that the informal opportunity to be heard before the agency . . . not [be]

illusory." Ibid. Finally, the Court cautioned that when reaching a determination

that an allegation of abuse or neglect is "not established," while it may be based

upon the current standard that there must be "some evidence" to support the

determination, the evidence it relies upon must be "credible evidence." Id. at

___ (slip op. at 44).

      Applying those controlling principles here, we now do as the Court did in

S.C.: "[W]e remand [this matter] for [defendant] to have the opportunity to

rebut or supplement the [Division's] record, after [it] provides greater clarity for

its conclusion. The remand will allow development of a proper record that can

be reviewed on appeal for abuse of discretion." Id. at ___ (slip op. at 46).

      Remanded for reconsideration applying the principles announced in S.C.

and for the issuing of a new determination consistent with our opinion. We do

not retain jurisdiction.


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