                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2003-17T2

DEPARTMENT OF CHILDREN
AND FAMILIES,

          Petitioner-Respondent,

v.

I.S.,

     Respondent-Appellant.
_____________________________

                    Submitted July 16, 2019 – Decided July 30, 2019

                    Before Judges Vernoia and Mayer.

                    On appeal from the New Jersey Department of Children
                    and Families, Division of Child Protection and
                    Permanency, Case Id No. 10583930.

                    Rosemarie A. Anderson, attorney for appellant.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Donna Sue Arons, Assistant Attorney
                    General, of counsel; Joann Marie Corsetto, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Defendant I.S. appeals from the final agency decision of the Department

of Children and Families (DCF), Division of Child Protection and Permanency

(Division), finding an allegation she abused her three-year-old son, R.S., was

"not established." N.J.A.C. 3A:10-7.3(c)(3). Based on our review of the record

in light of the applicable law, we are convinced the not established finding is

supported by substantial credible evidence and is not otherwise arbitrary,

capricious or unreasonable, and affirm.

                                       I.

      On July 24, 2013, the Division received a referral of possible child abuse

or neglect in connection with the drowning death of I.S.'s three-year-old son,

R.S. in a pool in his grandmother M.B.'s backyard. The Division investigated

and, in a January 10, 2014 letter, notified I.S. that child neglect was

"substantiated" for "[i]nadequate [s]upervision with regard to" R.S.         I.S.

appealed the Division's finding and a hearing was held before an administrative

law judge (ALJ).

      Following the hearing, the ALJ issued an initial decision finding that on

July 24, 2013, I.S. took R.S. to her mother's, M.B.'s, home to visit and have

dinner. Upon arriving at M.B.'s home, I.S. went into the kitchen to prepare

dinner and R.S. "was in and out of the front of the house playing with" children


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                                          2
from the neighborhood.     The front of the house included a porch and the

backyard included "an above-ground pool, the entrance of which is decked and

gated."

      The ALJ summarized the witnesses' testimony. On July 24, 2013, police

Sergeant Ronald Fusco investigated the incident. He described the above -

ground pool and explained it "had four wooden deck-type steps . . . lead[ing] up

from the ground to the decked platform" with a "small gate at the top of the steps

that is secured by a latch and bar." Sergeant Fusco could not "determine if the

gate to the pool was secured or not at the time of the incident." He concluded

R.S.'s death was accidental.

      The ALJ detailed the testimony of Division Investigator James Williams,

who described his interview with M.B. on the day following the incident.

Williams testified M.B. said R.S. and the "other children from the

neighborhood" were playing on the porch and "making a lot of noise." At one

point, R.S. entered the house and asked M.B. if he could go to the park to play

with the other children. M.B. referred R.S. to I.S., who told R.S. he could not

go to the park. R.S. then returned to the porch and continued playing with the

other children.




                                                                          A-2003-17T2
                                        3
      According to Williams, M.B. also reported it was common for the children

to play by themselves outside of her home without "an adult actually being

outside with them," but on July 24, 2013, "the children were all within [sight]

because the front of the house is surrounded by windows and the children could

all be heard playing." M.B. reported she could see the porch and front yard from

the living room where she was located while the children played. She also

reported the backyard was visible from the kitchen. M.B. told Williams that

"when it suddenly became quiet because the children were not making noise she

immediately asked about R.S. and [she and the other adults present] began

asking and looking for him."

      The ALJ further noted that Williams interviewed the doctor who

performed R.S.'s autopsy. The doctor reported that R.S.'s "organs were filled

with fluid but that it only takes a few minutes for that to happen." Williams

concluded R.S. was inadequately supervised because the three-year-old child

was left unattended and none of the witnesses he interviewed "could say what

period of time R.S. was missing," "[t]he statements of the adults varied as to

how long R.S. was unaccounted for" and, based on the statements he obtained,

"R.S. was unaccounted for anywhere from twenty to sixty . . . minutes." In




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                                       4
arriving at his determination, Williams considered that "all of the adults said

that it was common for R.S. to play outside without adult supervision."

       The ALJ also summarized M.B.'s testimony that she was in her living

room talking to a friend while R.S. played on the front porch and in the front

yard with "other kids from next door and [the] neighborhood." M.B. said she

was "going back and forth from her living room to the front porch," and R.S.

entered the house on two occasions asking if he could go to the playground but

was told "no." She explained that R.S. was then playing outside but "[s]uddenly

the noises stopped" and within "two minutes" she "ask[ed] about the

whereabouts of R.S. because his dinner was ready." M.B. denied that R.S. had

ever gone to the park or played in the backyard without adult supervision, and

she "never heard the children in the backyard" on July 24, 2013.

       The ALJ also detailed the recorded interviews of Blair and Ida, 1 the two

eleven-year-old children who played with R.S. on the day of the incident. In her

first statement, Blair said she and Ida played with R.S., but they left him at his

grandmother's home when he said he could not go to the park. In her second

statement, Blair said the three children were in the backyard, and R.S. stood "on




1
    We use pseudonyms for these children to protect their privacy.
                                                                          A-2003-17T2
                                        5
the things that hold up the pool" and touched the water. Blair said she took R.S.

off of the "things," brought him to the house and then went to the park with Ida.

      The ALJ explained that Ida reported that she and Blair were touching the

water in the pool, and R.S. climbed onto a bin "so he could touch the water too."

Ida said she took R.S. off of the bin, and she went to the park, leaving Blair and

R.S. in the front yard. Blair later joined Ida at the park, where Blair said she

had taken R.S. into the house before she left for the park.

      The ALJ summarized I.S.'s testimony. I.S. testified that after arriving at

M.B.'s house, she went into the kitchen to prepare dinner and "could see the

back yard through the back door." She said R.S. played outside on the front

porch with other children and entered the house twice asking if he could go to

the park. On both occasions, she told him he could not go to the park. She

explained that "she could tell where R.S. was at all times because she could hear

him," but that "suddenly everything was quiet." She heard M.B. say, "where's

R.S.," and she and a friend looked for R.S. I.S. found R.S. in the backyard pool.

The ALJ noted I.S. said she had been at M.B.'s house "at most a little less than

one hour" and "R.S. was not missing more than five to ten minutes."

      The ALJ rejected the Division's conclusion that I.S. allowed R.S. to play

outside unsupervised. The ALJ noted that R.S. was playing on the porch and


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                                        6
was continuously running in and out of the house and that there were at least

four adults in the home. The ALJ found the adults reacted immediately "when

it suddenly got quiet" and that a very short time elapsed from when R.S. was

last on the porch to when he went missing.          The ALJ rejected Williams'

conclusion that R.S. was unsupervised for twenty to sixty minutes and concluded

the evidence was insufficient to substantiate neglect. The ALJ recommended

reversal of the DCF's substantiation finding.

      The Division filed exceptions to the ALJ's determination, but limited its

argument to the assertion that the ALJ erred by failing to consider whether the

substantiation finding should be changed to "unfounded" or "not established."

N.J.A.C. 3A:10-7.3(c)(3), (4). In its final agency decision, the DCF modified

the ALJ's order, finding that although the evidence supported the ALJ's finding

that I.S. did not neglect R.S., N.J.S.A. 9:6-8.21(c)(4), "the finding should be 'not

established' as the record supports that R.S. was harmed and accordingly, the

appropriate finding is 'not established' pursuant to N.J.A.C. 3A:10-7.3(c)[(3)]."2

This appeal followed.


2
  The DCF subsequently issued a Notice of Change of Child Abuse or Neglect
Finding stating that the "substantiated child abuse or neglect" finding was
changed "on appeal" to a "not established" finding, and erroneously advising
that the "records associated with this investigation shall be expunged from DCF


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                                         7
      I.S. presents the following arguments for our consideration:

            POINT I

            [THE DIVISION'S] FINDING IS ARBITRARY,
            CAPRICIOUS,      UNREASONABLE          AND
            UNSUSTAINABLE IN LAW AND FACT AND A
            FINDING OF "UNFOUNDED" WOULD BE
            CONSISTENT WITH [THE] ALJ['S] . . . INITIAL
            DECISION.

            POINT II

            [THE DIVISION'S] EXCEPTIONS TO [THE] ALJ['S]
            . . . INITIAL DECISION FAIL TO MEET THE
            REQUIREMENTS UNDER [N.J.A.C.] 1:1-18.4 AND
            MUST NOT BE PERMITTED TO STAND.

            POINT III

            [THE DIVISION] HAD MANY OPPORTUNITIES TO
            CHANGE ITS FINDING BUT DID NOT AND
            SHOULD NOT NOW BE PERMITTED TO DO SO
            WHEN THEY HAVE A FINDING THAT IS
            ADVERSE TO THEM, THIS IS GIVING THEM A
            SECOND BITE AT THE APPLE.

            POINT IV

            THE FINDING OF "NOT ESTABLISHED"
            PREJUDICES   [I.S.] IN  HER    FUTURE
            ASPIRATIONS TO WORK WITH CHILDREN AND

files pursuant to N.J.S.A. 9:6-8.40a" unless certain specified events occurred.
The DCF subsequently issued an Amended Notice of Change of Child Abuse or
Neglect Finding, again stating that the "substantiation of a child abuse or
neglect" finding was changed to "[n]ot [e]stablished," but noting that "[a] record
of the investigation will be retained in DCF files."
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                                        8
             THE ELDERLY AND AT [TWENTY-FIVE] YEARS
             OLD THIS STANDS TO IMPACT NEGATIVELY ON
             THE REST OF HER LIFE.

                                         II.

      The scope of our review of a final agency decision is limited. In re

Stallworth, 208 N.J. 182, 194 (2011). We "must defer to an agency's expertise

and superior knowledge of a particular field," Greenwood v. State Police

Training Ctr., 127 N.J. 500, 513 (1992), and "extend substantial deference to an

'agency's interpretation and implementation of its rules enforcing the statutes for

which it is responsible' based on the agency's expertise." N.J. Dep't of Children

& Families v. R.R., 454 N.J. Super. 37, 43 (App. Div. 2018) (quoting In re

Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)).

      Here, we consider whether the DCF's "not established" finding is clearly

"arbitrary, capricious, or unreasonable" or lacked "fair support in the record."

Dep't of Children & Families v. T.B., 207 N.J. 294, 301 (2011) (quoting In re

Herrmann, 192 N.J. 19, 27-28 (2007)); see also Dep't of Children & Families v.

D.B., 443 N.J. Super. 431, 440 (App. Div. 2015). "However, we are 'in no way

bound by [an] agency's interpretation of a statute or its determination of a strictly

legal issue,'" T.B., 207 N.J. at 302 (first alteration in original) (quoting

Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer Affairs of Dep't of


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                                         9
Law & Pub. Safety, 64 N.J. 85, 93 (1973)), and "if an agency's statutory

interpretation is contrary to the statutory language, or if the agency's

interpretation undermines the Legislature's intent, no deference is required,"

Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008) (quoting In

re N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997)).

      I.S. argues the evidence establishes only that R.S.'s death was accidental

and therefore supports the ALJ's finding, which the DCF does not challenge,

that she did not abuse or neglect R.S. I.S. contends "[t]he only logical and legal

conclusion . . . is an 'unfounded' finding" and that, as a result, the DCF's "not

established" finding is not supported by the evidence and is arbitrary, capricious

and unreasonable.

      A "not established" finding "is one of four outcomes the Division may

reach after investigating an abuse or neglect allegation." R.R., 454 N.J. Super.

at 40. The DCF "shall make a finding that an [abuse or neglect] allegation is

'substantiated,' 'established,' 'not established,' or 'unfounded.'" N.J.A.C. 3A:10-

7.3(c). "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." R.R., 454 N.J. Super. at 40 (emphasis removed) (quoting N.J.A.C.


                                                                           A-2003-17T2
                                       10
3A:10-7.3(c)(3)). Only if "the evidence indicates that a child was not harmed

or placed at risk of harm," is the allegation deemed "unfounded." N.J.A.C.

3A:10-7.3(c)(4).      As the Division has explained, "[t]he critical distinction

between findings of not established and unfounded is that not established

findings are based on some evidence, though not necessarily a preponderance of

evidence, that a child was harmed or placed at risk of harm." 45 N.J.R. 738(a)

(April 1, 2013) (response to Comment 86). "[P]lacing a child 'at risk of harm'

may involve a lesser risk than the 'substantial risk of harm' or 'imminent danger'

required to establish abuse or neglect under the statute." R.R., 454 N.J. Super.

at 42.

         Sadly, but indisputably, the DCF's finding that R.S. was "harmed or placed

at risk of harm" is supported by "some evidence": three-year-old R.S. was left

to play without direct adult supervision, wandered from the front porch to the

backyard, entered an above-ground pool and drowned. That evidence precluded

the unfounded finding that I.S. urges; an unfounded finding may be made only

where the child is neither harmed nor placed at risk of harm. N.J.A.C. 3A:10 -

7.3(c)(4).

         Moreover, we reject I.S.'s contention that the DCF's failure to establish by

a preponderance of the evidence that I.S. neglected R.S. under N.J.S.A. 9:6-


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                                         11
8.21(c) requires an unfounded finding. The argument ignores that a finding of

no abuse or neglect is measured against a different legal standard and quantum

of proof and is not determinative of a not established finding under N.J.A.C.

3A:10-7.3(c)(3), and that a not established finding, by definition, is made where

the evidence does not establish the child was abused or neglected. See R.R.,

454 N.J. Super. at 41-42 (explaining the different standards for establishing

abuse or neglect under N.J.S.A. 9:6-8.21(c) and sustaining a not established

finding under N.J.A.C. 3A:10-7.3(c)(3)). In sum, the DCF's not established

finding is supported by some evidence and I.S. fails to demonstrate the finding

is otherwise arbitrary, capricious or unreasonable.

      I.S. further argues that the DCF was barred from changing its finding

following the ALJ's decision and that the finding should be reversed because it

will negatively impact I.S.'s plans to work with children and the elderly in the

future. The arguments are without sufficient merit to warrant discussion in a

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

      Affirmed.




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