                       RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5434-12T3
                                              A-0276-13T3

DEPARTMENT OF CHILDREN AND
FAMILIES, INSTITUTIONAL
ABUSE INVESTIGATION UNIT,

         Respondent,

v.

D.B.,

          Appellant.
_________________________

DEPARTMENT OF CHILDREN AND
FAMILIES, INSTITUTIONAL
ABUSE INVESTIGATION UNIT,

         Respondent,

v.
                                      APPROVED FOR PUBLICATION

A.G.,                                     OCTOBER 20, 2015

          Appellant.                     APPELLATE DIVISION
_________________________


         Argued May 19, 2015 – Decided July 29, 2015

         Before Judges Reisner, Koblitz and Currier.

         On appeal from New Jersey Department of
         Children and Families, Institutional Abuse
         Investigation Unit, Intake ID: 17589252 and
         17717832.
          Louis P. Bucceri argued the cause for
          appellant D.B. (Bucceri & Pincus, attorneys;
          Mr. Bucceri, of counsel and on the briefs).

          Albert J. Leonardo argued the cause for
          appellant A.G. (Bucceri & Pincus, attorneys;
          Mr. Leonardo, of counsel and on the briefs).

          Salima   Burke,  Deputy   Attorney  General,
          argued the cause for respondent (John J.
          Hoffman, Acting Attorney General, attorney;
          Andrea M. Silkowitz, Assistant Attorney
          General, of counsel; Lori J. DeCarlo, Deputy
          Attorney General, on the briefs).


      The opinion of the court was delivered by

KOBLITZ, J.A.D.

      We consolidate these two appeals for the purpose of writing

one opinion.      Defendant A.G., a teacher's aide for an autistic

child, appeals from an August 14, 2013 findings report issued by

the   Institutional    Abuse   Investigation     Unit   (IAIU)    of    the

Department   of   Children   and   Families   (Department).      Defendant

D.B., an elementary school art teacher, appeals from an amended

August 1, 2013 IAIU findings report.           Both defendants contest

the validity of N.J.A.C. 10:129-7.3, upon which the Department's

findings were based.

      D.B. and A.G. both seek to have the Department's findings

letter changed from "not established" to "unfounded."            We affirm

the findings of "not established," but reverse and remand for




                                     2                            A-5434-12T3
the Department to issue new reports in conformity with the clear

directions we have previously provided to the agency.

                                        A.G.

       We first summarize the factual information with regard to

each    defendant     separately,       beginning      with   A.G.       A.G.   was

employed by the Paterson public schools for twenty-nine years.

On May 16, 2013, the Department received a referral from the

principal stating that the prior day the teacher of a class of

students with learning disabilities saw A.G. hit five-year-old

Joey1 multiple times on his arm with her open hand.                      Joey had

been diagnosed as autistic.

       From   May    to    July   the   IAIU   investigator     interviewed     the

following parties: A.G.; the reporting teacher; two adults who

were in the classroom at the time; the principal; the school

nurse; Joey; Joey's mother; and six of Joey's classmates.                       The

investigator        also    received     copies   of    notes    taken    by    the

principal as well as a May 15, 2013 account of the incident

written by the teacher; a May 16, 2013 account written by A.G.;

and a May 16, 2013 employee incident report written by A.G. and

the principal.

       On May 16, 2013, A.G. wrote that:


1
  We use initials for the parties and fictitious names for the
children to preserve their privacy.



                                          3                               A-5434-12T3
         Yesterday at 1:00 p.m. when [we] were doing
         the math [Joey] was very upset when [a
         classmate, "Ana"] s[a]t next to another
         student.    [Joey] doesn't want[] [anyone]
         near to [Ana] so he was very ag[g]ressive
         and he started hit[t]ing so I was protecting
         the other[] students.   He hit me . . . in
         the face and scratched me in the right side
         of my face and left side of my hand.    [The
         teacher] was next to me.    [H]e was kicking
         the chair so I was holding his hands[.]    I
         told him that he needs to respect, that he
         needs to stop and that he needs to do his
         work, then he [did] wash his face and
         hands[.]   I was with him, then he did his
         work (test).

    The classroom teacher wrote in her May 15 statement that:

         [Joey] did not want to complete his class
         work and was acting out: screaming and
         trying to run out of the classroom. When he
         transitioned to [A.G.'s] group she tried
         prompting him to complete his work but he
         did not comply.      He threw the classroom
         materials from the table and ripped a test
         paper that was in front of him. When [A.G.]
         asked him to work, [Joey] scratched her
         face. At this point, [A.G.] started to hit
         [Joey] repeatedly and stating "You are not
         going to scratch me" and "You need to have
         respect".   The incident was reported to the
         building administrator[.]

    When interviewed by the investigator on June 14, 2013, the

teacher asserted the following.       A.G. hit Joey four times.    She

estimated that on a scale of one to ten, with one being the

softest and ten being the hardest, A.G. struck Joey using a

force of five to six.   She had previously witnessed A.G. pinch

or press on a student's neck in order to make the student sit




                                  4                          A-5434-12T3
down.      Joey's   behavior   had   improved   dramatically     after    the

termination of A.G.

    According to the principal's notes, the reporting teacher

brought Joey to the office.

            Due to [Joey's] disability, it is difficult
            to understand what he is saying.    However,
            the teacher showed him the class picture and
            had him identify the students and teachers.
            When he pointed to [A.G.] he was able to say
            [A.G.'s last name].    He was then asked if
            she had hurt him.    He said yes and touched
            his mouth.   He also brought his foot up to
            his cheek.   He was again asked if she had
            hurt him.     However, he was not able to
            respond or elaborate on what had happened.
            [The teacher] was not sure if and when he
            had been hit in the areas shown because it
            was not what she had seen in the particular
            incident.

    Joey's     mother,     L.N.,   informed   the   investigator   of     the

following.    She noticed a bruise on Joey's face in April 2013,

and Joey stated that a teacher did it, although he did not

identify the teacher.          She had had no concerns about Joey's

safety at the school prior to April 2013.            She had photographed

and videoed Joey's bruise, and in the video Joey responds to

questioning about how he had been bruised, without indicating

who was involved.

    The investigator tried to interview Joey, but he replied

"Sponge Bob" and shut his eyes when asked about a classroom

incident    with    A.G.    The    instructional    assistant   claimed    he




                                      5                            A-5434-12T3
witnessed Joey run out of the classroom after which he had to be

brought back in and seated by a teacher and himself; Joey began

to knock items down; he heard Joey and A.G. scream, but did not

see   Joey    scratch   A.G.    nor   see   any    marks    on     Joey.     The

instructional assistant also stated that although A.G. could be

loud and aggressive in her tone of voice, he never witnessed her

hit a student.

      The investigator interviewed the substitute and the school

nurse who examined both A.G. and Joey.              They did not see any

marks on Joey or marks on A.G.'s face, although A.G. had a small

scratch on her hand.      Six of Joey's classmates said they had not

seen A.G. hit Joey.

      A.G.   was   terminated   effective    May    31,    2013.      The   IAIU

embodied its findings report in three separate letters dated

August 14, 2013.        The letters were sent to the state district

superintendent, A.G., and Joey's mother.

      Each of the three letters included the following text:

             Investigative findings

             Physical Abuse/Substantial Risk of Physical
             Injury/Environment Injurious to Health and
             Welfare is not established, in accordance
             with N.J.S.A. 9:6-8.21.      No adjudicative
             findings    have    been   made,   as    the
             Institutional Abuse Unit's review herein is
             solely investigative.




                                      6                                A-5434-12T3
         Not established findings are not disclosed
         in a Child Abuse Registry Check but are
         maintained in agency records.

    The letters to the district superintendent and to Joey's

mother continued under the heading "Investigative Observations":

         [Joey,]   age   [five,]   had  no   observable
         injuries.     On May 16, 2013, [Joey] was
         examined by the school nurse.     The results
         of the investigation indicate that [Joey]
         was yelling and throwing papers in class.
         An adult witness observed [A.G.] smack
         [Joey] on the hand. [A.G.] denied that she
         smacked [Joey.]     [A.G.] admitted that she
         put her hand over [Joey's] hand after he
         scratched her.     It should be noted that
         [Joey] manifested a bruise under his eye in
         April   2013.      However,   there   was   no
         information to support that [A.G.] caused
         the injury.

         Based upon the information gathered and
         physical observations of the child, [Joey]
         is not an abused child as defined by
         statute.   However, the information gathered
         indicates that [Joey] was harmed or placed
         at risk of harm by virtue of the incident.

    Additionally,   each     letter   included   a   "Confidentiality

Statement" providing that:

         [T]he    results     of    the     Department's
         investigation,      including       identifying
         information,    are     maintained    in    the
         Department's files and can only be disclosed
         as set forth in N.J.S.A. 9:6-8.10a.          In
         accordance with the statute, however, we can
         release     the     findings      report     to
         administration to help ensure that proper
         care, treatment or supervision is provided,
         not only to the specific child or children
         involved here, but to all children under the
         care and supervision of the above referenced



                                  7                          A-5434-12T3
            facility. These reports may be used by any
            person or entity conducting a disciplinary,
            administrative or judicial proceeding to
            determine terms of employment of an officer,
            employee or volunteer with an agency or
            organization providing services to children.

                                           D.B.

    On April 24, 2013, the Department received a referral from

the principal of a public elementary school in Paterson.                              The

principal    reported         that   Larry,     a     six-year-old     student,     said

D.B., the child's art teacher, grabbed Larry’s arm and scratched

the child earlier that day.                Over the following three weeks two

investigators from the IAIU interviewed the following parties:

Larry;   D.B.;     the   principal;        five       of   Larry’s    classmates;     the

school nurse; the school security officer; and Larry’s mother.

An investigator also took photographs of Larry’s arm on the day

of the referral.

    When     the    principal        was    interviewed        that    same    day,    he

explained that earlier in the morning Larry showed him a linear

red mark caused by D.B. scratching him.                         The principal also

stated that, although students regularly complained about D.B.,

this was the first time he saw a raised mark on a child in

connection    with       an    incident.            Additionally,      the    principal

indicated that he had prior concerns about D.B.'s failure to

properly     maintain     control      of       her    students,      asserting     that




                                            8                                  A-5434-12T3
students      in   D.B.'s       classroom   would   run    around    and   hit    each

other.

    Shortly after interviewing the principal, an investigator

interviewed        Larry    in    the   presence    of   the    principal.       Larry

stated that D.B. had sent him to the security guard because he

and a classmate were laughing while refusing to stay seated.

The security guard then sent him back into the classroom.                        When

Larry returned to the classroom, he refused to sit down when

asked to do so by D.B., which led to D.B. scratching him on his

right arm.         After Larry was scratched he went back out to the

security guard with a classmate, at which time he showed the

guard his arm and was then directed to the school nurse.                         Larry

conceded that he did not always listen to D.B.'s instructions

during class.

    An investigator interviewed Larry's mother, who stated that

Larry had informed her about his injury.                       Larry told her that

his teacher grabbed and scratched his arm when he did not comply

with her instruction to sit down in class.

    An investigator also interviewed D.B., who explained that

she saw Larry throwing a chair at a student, but did not touch

Larry    at    all.         A     "Parent   Conference         Request/Modification

Report," written by D.B., detailed Larry’s conduct in her class

on the date of the incident.                    The Report stated that Larry




                                            9                                A-5434-12T3
called another student names, refused to sit down, ran around

the classroom, and threw a chair.

       The school nurse, who examined Larry's arm, observed three

faint reddish marks on Larry's arm, which disappeared after the

application        of    ointment.             An     investigator         reviewed      the

"Individual        Student    Health     Log,"       which   documented      the    school

nurse's examination of Larry on the referral date.

       The    investigators          also      interviewed          five    of      Larry’s

classmates.        Three children stated that Larry threw a chair, and

D.B.   then    grabbed       him   by    the    arm    and    removed      him    from   the

classroom.         The two other children gave completely divergent

accounts.      The security guard stated that D.B. called her to the

classroom after which she brought Larry to the nurse.

       In    three      separate     letters,         the    IAIU    communicated        its

findings to D.B., the state district superintendent, and Larry’s

mother.       After counsel for D.B. wrote to IAIU seeking certain

changes,      on    August    1,    2013    the      IAIU    sent    amended      findings

letters to D.B. and the superintendent.                        The finding of "not

established" remained unchanged.

       Each of the August 1, 2013 amended letters included the

following      text      under     the     heading      "Investigative           Findings":

"Physical      Abuse/Cuts,         Bruises,         Welts    and    Abrasions      is    not

established        in     accordance        with       N.J.S.A.      9:6-8.21.             No




                                            10                                     A-5434-12T3
adjudicative findings have been made.                The Institutional Abuse

Unit's review herein is solely investigative."                Furthermore, the

"Investigative Findings" section of the amended letters recited

that, "Not established findings are not disclosed in a Child

Abuse   Registry   Check   []    but    they    are   maintained    in    agency

records."

    The August 1, 2013 amended letters further stated under the

heading "Investigative Observations" that:

            [Larry] age [six], was examined by the
            school nurse who noted three faint red marks
            on [Larry’s] right arm.     It was reported
            that [D.B.] grabbed and scratched [Larry] on
            his right arm.    Four witnesses interviewed
            reported that [D.B.] made physical contact
            with [Larry’s] right arm.    When interviewed
            [D.B.] denied grabbing [Larry’s] arm.

            Based upon the interviews and physical
            observations of the child, [Larry] is not an
            abused or neglected child as defined by
            statute. The information gathered indicates
            that [Larry] was harmed or placed at risk of
            harm by virtue of the incident.

    Each     amended    letter    also       included    a    "Confidentiality

Statement" identical to the one included in the letters sent

concerning A.G.

    In a memorandum dated June 14, 2013, which had attached

IAIU's June 3, 2013 findings letter to the superintendent, the

principal    informed   D.B.     that    due    to    the    district's     "zero

tolerance policy approach to teachers possibly causing harm to




                                        11                               A-5434-12T3
students,"        the         principal       had      recommended       "additional

disciplinary actions ranging from suspension to tenure charges."

The same day the superintendent sent D.B. a letter stating that

"due to conduct unbecoming," the district would withhold D.B.'s

salary increment for the 2013-2014 school year.

                                           I

     Both A.G. and D.B. argue that, "IAIU's findings that the

child 'was harmed or placed at risk of harm' constitutes an

adjudication and not a mere investigatory finding.                          [A.G. and

D.B.] further contend[] that the procedures followed by IAIU in

this case are violative of the due process safeguards ordered by

this court in its prior decisions."

     The     Department         asserts    that       N.J.A.C.    10:129-7.3(c)(3),

effective    April       1,    2013,   does     not    violate     the   Due   Process

Clause, and the "promulgation of this regulation is authorized

by   statute       and        consistent       with     the      agency’s      mandated

responsibilities under Title Nine, N.J.S.A. 9:6-8.21 to -8.73."

     "It     is     settled        that    '[a]n        administrative         agency's

interpretation          of     statutes       and      regulations       within      its

implementing and enforcing responsibility is ordinarily entitled

to our deference.'"            Wnuck v. N.J. Div. of Motor Vehicles, 337

N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by

Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div.




                                           12                                  A-5434-12T3
1997)).      "Absent arbitrary, unreasonable or capricious action,

the agency's determination must be affirmed."                        Ibid. (citing R &

R   Mktg.,    L.L.C.    v.    Brown-Forman            Corp.,    158    N.J.    170,    175

(1999)).      "Although we recognize that deference is generally

given to an administrative agency charged with interpretation of

the   law,   we   are   not    bound    by      the    agency's       legal   opinions."

Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App.

Div. 2001) (citing G.S. v. Dep't of Human Servs., 157 N.J. 161,

170 (1999)).      An agency's exercise of its statutorily delegated

responsibilities        is    entitled       to       a     strong     presumption      of

reasonableness     and       our   court     will         generally    defer    to    that

agency's expertise and superior knowledge in the field.                          City of

Newark v. Natural Res. Council, Dep't of Envtl. Prot., 82 N.J.

530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed.

2d 245 (1980).

      N.J.S.A.     9:6-8.21(c)         provides           in   pertinent       part    the

definition of an abused or neglected child as follows:

             "Abused or neglected    child" means 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, as herein
             defined, to exercise a minimum degree of
             care . . . by unreasonably inflicting or
             allowing   to    be   inflicted   harm,   or
             substantial risk thereof, including the
             infliction of excessive corporal punishment;




                                           13                                    A-5434-12T3
            or by any other acts of a similarly serious
            nature requiring the aid of the court[.]

    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., supra, 157 N.J. at 178; 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.

    On   April      1,   2013,   the    Department     adopted      a    framework

providing    four    possible    findings    that      are   made       after   the

Department evaluates the available information: "substantiated";

"established"; "not established"; and "unfounded."

            1.   An allegation shall be "substantiated"
            if   the   preponderance  of   the  evidence
            indicates that a child is an "abused or
            neglected child" as defined in N.J.S.A. 9:6-
            8.21 and either the investigation indicates
            the existence of any of the circumstances in
            N.J.A.C. 10:129-7.4 or substantiation is
            warranted based on consideration of the
            aggravating and mitigating factors listed in
            N.J.A.C. 10:129-7.5.

            2.   An allegation shall be "established" if
            the preponderance of the evidence indicates
            that a child is an "abused or neglected
            child" as defined in N.J.S.A. 9:6-8.21, but
            the act or acts committed or omitted do not
            warrant a finding of "substantiated" as
            defined in (c)1 above.




                                       14                                 A-5434-12T3
            3. 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.

            4.    An allegation shall be "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. 10:129-7.3(c).]

       After   completing      its    investigation,        the   Department     must

"notify the alleged perpetrator and others of the outcome of its

investigation."         In re Allegations of Sexual Abuse at E. Park

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

to N.J.A.C. 10:129-7.3(d) "[a] finding of either established or

substantiated shall constitute a determination by the Department

that   a   child   is    an    abused    or     neglected    child    pursuant      to

N.J.S.A. 9:6-8.21[,]" but only findings that are substantiated

are    disclosed   for        the    purposes    of   a     child    abuse    record

information check.        N.J.A.C. 10:129-7.7(a).

       If an allegation of abuse or neglect is substantiated, the

accused has a right to request an administrative hearing within

twenty days of notice of the finding.                 N.J.A.C. 10:120A-2.5(a);

N.J.A.C. 10:120A-4.3(a)(2).             However, N.J.A.C. 10:120A-4.3(a)(2)

does not provide a right to an administrative hearing for a



                                         15                                  A-5434-12T3
finding   that   abuse      or   neglect        has    been    "established",        "not

established", or "unfounded."                   See N.J.A.C. 10:120A-4.3(a)(2)

(providing     that    by   request    a     person     can    seek    administrative

review    of   substantiated         findings);        N.J.A.C.       10:120A-2.5(a).

When administrative review is not available, such findings are a

final decision appealable as of right to the Appellate Division.

R.   2:2-3(a)(2).       N.J.A.C.      10:129-8.1(b)           provides   that    "[t]he

Department      shall       retain     each       record       which     contains        a

substantiated,        established,      or       not    established      report,       as

specified in N.J.A.C. 10:129-7.3."

      D.B. and A.G. argue that IAIU findings of "not established"

violate due process when sent to other government agencies.                            In

L.R., we explained that a person's due process rights are not

violated when IAIU provides its findings to other government

agencies, even though the agency has not found abuse or neglect.

In re an Allegation of Physical Abuse Concerning L.R., 321 N.J.

Super. 444, 460 (App. Div. 1999).

           Appellants also argue that they are entitled
           to an evidentiary hearing because DYFS[2]
           damaged their professional reputations by
           notifying parents and guardians of the
           alleged abused students and the Newark
           school    district   of    its  investigatory
           findings.          However,    we    rejected

2
  DYFS, the Division of Youth and Family Services, is now known
as the Division of Child Protection and Permanency, and is a
division within the Department.



                                           16                                   A-5434-12T3
           substantially    the    same    argument    in
           [Allegations of Physical Abuse at Blackacre
           Academy, 304 N.J. Super. 168, 184-85 (App.
           Div. 1997)].       Although the New Jersey
           Constitution extends due process protection
           to personal reputation, "without requiring
           any other tangible loss," Doe v. Poritz, 142
           N.J. 1, 104 (1995), this does not mean that
           a liberty interest is implicated anytime a
           governmental agency transmits information
           that may impugn a person's reputation.
           DYFS' transmittals of investigatory findings
           to the parents and guardians of alleged
           abused students and the school district
           constituted a significantly more limited
           dissemination of adverse information than
           the notifications concerning the presence of
           Tier II and III sex offenders in a community
           which the Court in Doe found to require due
           process protections.     142 N.J. at 103-07.
           Moreover,   a   finding   that   child   abuse
           allegations have not been substantiated but
           that   DYFS   has    nevertheless    expressed
           "concerns" about a person's conduct is
           intrinsically less damaging to reputation
           than a finding that child abuse charges have
           been "substantiated" or that a person is a
           convicted sex offender.      Therefore, DYFS'
           limited dissemination of the results of its
           investigations did not cause the kind of
           damage to reputation which would entitle
           appellants to a hearing.

           [Ibid.]

    Although, in L.R. we were considering the finding of "not

substantiated" under the prior framework of the N.J.A.C. 10:129-

7.3(c),   our   reasoning   is   also   valid   when   considering   "not

established" under the current N.J.A.C. 10:129-7.3(c)(3).

    In In re an Allegation of Physical Abuse Concerning R.P.,

333 N.J. Super. 105, 113 (App. Div. 2000), we opined that:



                                   17                           A-5434-12T3
         "[D]ue process is flexible and calls for
         such    procedural    protections    as   the
         particular situation demands."     Thus, even
         if a person has a constitutionally protected
         interest, it does not automatically follow
         that   the   person  must   be   afforded  an
         opportunity for an adjudicatory hearing.

         [(internal citations omitted).]

We continued, stating 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."     Id.   at    117

(internal citation omitted).

    Similarly, we again reaffirmed this principal in the S.P.

case providing that:

         [A]   teacher    is    not    entitled     to   an
         adjudicatory hearing to challenge a finding
         that   child    abuse    allegations     are   not
         substantiated, even when DYFS has expressed
         "concerns" about a teacher's conduct because
         such   a   finding    is   "intrinsically     less
         damaging to reputation than a finding that
         child      abuse      charges       have      been
         'substantiated.'"     "A finding by DYFS 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."

         [N.J.   Dep't   of   Children   &   Families'
         Institutional Abuse Investigation Unit v.
         S.P., 402 N.J. Super. 255, 270 (App. Div.
         2008) (internal citations omitted).]



                                 18                           A-5434-12T3
       We did, however, find that teachers do have the right to

challenge the wording of the findings of the Department, which

we address later in this opinion.                         Id. at 270-71.      Thus, the

notification-of-findings process of N.J.A.C. 10:129-7.3 does not

constitute a violation of due process.

       D.B. and A.G. also assert that N.J.A.C. 10:129-8.1, which

allows the Department to retain unproven accusations forever is

a violation of N.J.S.A. 9:6-8.40a.                          As the case law clearly

states,      the     interest        of    retaining      information     about   alleged

claims of abuse, where some cause for concern is demonstrated,

is    within       the    mandate         given    to    the   Department   to    protect

children from abuse.                 The records retained for "substantiated"

allegations are the only ones made public, thus D.B. and A.G.

have a lesser due process right in regard to information kept

for    the     use       of    the   agency        and    entities   involved     in    the

protection of children.

                                                  II

       D.B. and A.G. also argue that the conclusion specified by

IAIU as to their conduct is beyond the authority of the agency.

They argue that the language in the findings letters sent to the

superintendents           of    schools       is       conclusory,   in   violation      of

established case law.




                                                  19                              A-5434-12T3
    Both D.B.'s and A.G.'s argument that the Department has

exceeded   its   regulatory   authority    is   unpersuasive     and

inconsistent with New Jersey case law.    We stated in L.R. that:

           "[T]he    grant     of  authority    to    an
           administrative agency is to be liberally
           construed in order to enable the agency to
           accomplish its statutory responsibilities
           and . . . the courts should readily imply
           such incidental powers as are necessary to
           effectuate fully the legislative intent."
           DYFS has been granted broad authority to
           investigate     child   abuse    allegations,
           including specific authority to investigate
           any child abuse allegation against a public
           school teacher and to report its findings to
           the teacher's employer.    N.J.S.A. 18A:6-7a.
           An investigation of an abuse complaint
           against a teacher may disclose conduct which
           poses a threat to the physical or emotional
           well-being of the teacher's students even
           though it does not rise to the level of
           "child abuse" within the intent of N.J.S.A.
           9:6-8.21.   Therefore, we are satisfied that
           DYFS has not only the authority but the
           responsibility to take reasonable measures
           to protect students from any threat to their
           well-being.     The most obvious available
           measure to protect students from a teacher
           who poses a danger to their safety or
           welfare is for DYFS to communicate its
           concerns and recommendations to the school
           district which employs the teacher.       The
           district can then take whatever action it
           deems appropriate to address DYFS' concerns,
           including   counseling,   transfer   of   the
           teacher to another assignment or, in an
           extreme case, termination of employment.
           Accordingly, we are satisfied that DYFS has
           the statutory authority to find that child
           abuse allegations against a teacher are "not
           substantiated"    but  that   the   teacher's
           conduct poses a risk of harm to his or her
           students, and to report those concerns to



                                20                         A-5434-12T3
          the   school    district       which   employs     the
          teacher.

          [L.R., supra, 321        N.J. Super.      at 451-52
          (emphasis   added)         (internal       citations
          omitted).]

                                   III

    D.B. and A.G. argue that the Department's findings letters

to the superintendents of schools violate the requirements of

due process and fundamental fairness.             In S.P. we explained

that:

          A teacher against whom a finding has been
          made by DYFS expressing concern about the
          teacher's conduct "has a due process right
          to challenge the wording of such a finding
          on the ground that it is misleading and
          unfairly damaging to his reputation."     "The
          impact upon a teacher's reputation of a
          finding by DYFS expressing concern about the
          teacher's   conduct    may   be   significant,
          especially if it is accompanied by what
          appears to be an affirmative finding by DYFS
          that a teacher has had improper physical
          contact with a student." "The investigatory
          findings and 'concerns about the teacher's
          conduct,'    warrant    'some   due    process
          protection'    by    'judicial   review    and
          correction   [of   the   findings]   to   curb
          administrative abuses.'"

          [S.P., supra, 402 N.J. Super.                 at   270
          (internal citations omitted).]

    In   A.I.,   we   determined   that    the   IAIU   acted   within   its

authority in issuing its findings but nonetheless ordered the

IAIU to amend its letter to embody language explicitly stating




                                   21                              A-5434-12T3
that the IAIU had not adjudicated the findings or could not make

binding recommendations, stating that the letter:


            needs to be amended to avoid an improper
            impression conveyed despite the ultimate
            finding that the charges of abuse were
            "unfounded."      Although   interviews   with
            students and teachers presented conflicting
            accounts and no adjudication took place,
            IAIU's letter to the District stated, as if
            conclusively found, that appellant "grabbed
            [A.I.'s] ponytail quickly at the same time
            as [the student] was trying to move away and
            as a result, the student fell to the floor."
            Accordingly, even though the section on
            "Investigative Findings" states that "[n]o
            adjudicative findings have been made [and]
            IAIU's     review     herein     is     solely
            investigative," the factual recitation in
            the "Evaluation of Facts" should be reworded
            to reflect this distinction.       The letter
            should also note that IAIU's findings are
            not binding or conclusive.       However, the
            overall conclusion that appellant's actions
            were "unjustified and inappropriate" is
            supported by the witness accounts, all of
            which suggest some physical confrontation
            between [the student] and [the teacher], and
            need not be deleted.

            [A.I., supra, 393      N.J.     Super.   at   131
            (citation omitted).]

    Similar to the A.I. case, the letter dated August 14, 2013

sent to the superintendent of schools regarding A.G. and the

amended letter dated August 1, 2013, relating to D.B., failed to

include     in   the   "Investigative     Observations"   section     the

statement that "IAIU's findings are not binding or conclusive."

Ibid.     Moreover, in S.P. we opined that simply stating that the



                                   22                           A-5434-12T3
findings are not binding or conclusive is insufficient, and the

IAIU’s    findings       must     clearly        explain     that      it   has        made    no

determination as to the validity of the statements provided by

witnesses.       S.P., supra, 402 N.J. Super. at 272-73.                         We noted in

R.P. that DYFS is not permitted to convey "the impression that

its finding[s] [are] based on an adjudicatory hearing."                                    R.P.,

supra,    333    N.J.    Super.      at    117.        Therefore,       both       cases      are

reversed and remanded to the agency with direction to comply

with    our   holdings       in   A.I.,      R.P.,     and      S.P.        Any    remaining

arguments       that    we   have    failed       to     specifically        address          are

without    sufficient        merit    to    require      discussion         in     a    written

opinion.      R. 2:11-3(e)(1)(E).

       D.B. and A.G. are entitled to findings letters that state,

after the conflicting witness statements are presented, that no

determination as to the accuracy of the statements                                     has been

made.     If a statement that there were allegations that a child

was    harmed    or    put   at     risk    of    harm     is    included         within      the

"Investigative Observations" section of the letters, it must be

followed by the language that "there has been no determination

of the accuracy of [the] allegations."                          R.P., supra, 333 N.J.

Super. at 117.          The Department's findings of "not established"

for both D.B. and A.G. need not be changed to "unfounded."

       Reversed and remanded.              We do not retain jurisdiction.




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