                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5307-17T4

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

          Petitioner-Respondent,

v.

T.G.

     Respondent-Appellant.
_____________________________

                    Argued September 16, 2019 – Decided December 16, 2019

                    Before Judges Messano and Susswein.

                    On appeal from the New Jersey Department of Children
                    and Families, Division of Child Protection and
                    Permanency, Docket No. AHU 17-0229.

                    Thomas Ercolano, III argued the cause for appellant
                    (Forster Arbore Velez, attorneys; Thomas Ercolano, III,
                    on the briefs).

                     Joshua Paul Bohn, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
             Attorney General, of counsel; Joshua Paul Bohn, on the
             brief).

PER CURIAM

      Respondent, T.G., appeals from a final administrative decision by the

Division of Child Protection and Permanency (Division) to substantiate an

allegation of child neglect. Respondent does not dispute that she neglected her

four-year-old daughter by driving under the influence of alcohol while the

toddler was in the car and not properly secured in a child safety harness.

Respondent contends, however, that the incident should have been classified as

"established" rather than "substantiated" under the tiering system established in

N.J.A.C. 3A:10-7.3(c).

      The distinction between a "substantiated" violation and an "established"

one is significant. The Division will not issue a license to a child daycare facility

if that facility employs a staff member who has a record of a "substantiated"

incident of child abuse or neglect.      N.J.S.A. 30:5B-6.2.      Here, respondent

operates a daycare center.

      After reviewing the record, we conclude that the final agency decision is

supported by sufficient credible evidence and was not arbitrary, capricious, or

unreasonable. We therefore have no basis upon which to substitute our own

judgment for that of the Administrative Law Judge (ALJ) or the Division in this

                                                                             A-5307-17T4
                                         2
case. Accordingly, we affirm the "substantiated" classification of respondent's

neglectful conduct.

                                     I.

                                     A.

      We begin our analysis by acknowledging the deferential standard of

review that governs this appeal. An appellate court may reverse a decision of

an administrative agency only if it is "arbitrary, capricious, or unreasonable, or

if it is not supported by substantial credible evidence in the record as a whole."

P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 529-30 (1995)

(citing Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993)). Agency actions are

presumed valid and reasonable, and the plaintiff bears the burden to overcome

this presumption. Bergen Pines Cty. Hosp. v. N.J. Dep’t of Human Servs., 96

N.J. 456, 477 (1984).

      Generally,

            [c]ourts can intervene only in those rare circumstances
            in which an agency action is clearly inconsistent with
            its statutory mission or other state policy. Although
            sometimes phrased in terms of a search for arbitrary or
            unreasonable action, the judicial role is generally
            restricted to 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 bases its action; and (3)

                                                                          A-5307-17T4
                                          3
            whether, in applying 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 Musick, 143 N.J. 206, 216 (1996) (citing
            Campbell v. Dep’t of Civil Serv., 39 N.J. 556, 562
            (1963)).]

      Furthermore, it is well settled that a reviewing court cannot substitute its

own judgment in place of the agency judgment, even if the court would have

reached a different result. In re Stallworth, 208 N.J. 182, 194 (2011) (citing In

re Carter, 191 N.J. 474, 483 (2007)). This is particularly true when, as in this

instance, we are reviewing an issue related to an agency's special "expertise and

superior knowledge of a particular field." Id. at 195 (quoting In re Herrmann,

192 N.J. 19, 28 (2007)).

                                       B.

      To understand the context of respondent's contention, it is appropriate to

briefly review the regulatory classification framework the Division uses to

determine whether a child abuse or neglect allegation is "established" or

"substantiated."      The regulations governing child abuse and neglect

investigations     authorize   four   possible   outcomes:    "unfounded,"    "not

established," "established," and "substantiated." N.J.A.C. 3A:10-7.3(c). The



                                                                          A-5307-17T4
                                            4
present appeal requires us to consider the distinction between the latter two

classifications.

        An allegation is "established" when "the preponderance of the evidence

indicates that a child is an 'abused or neglected child' . . . but the act or acts

committed or omitted do not warrant a finding of 'substantiated.'" N.J.A.C.

3A:10-7.3(c)(2). An allegation is "substantiated" when "the preponderance of

the evidence indicates that a child is an 'abused or neglected child' . . . and either

the investigation indicates the existence of any of the circumstances in N.J.A.C.

3A:10-7.4 or substantiation is warranted based on consideration of the

aggravating and mitigating factors listed in N.J.A.C. 3A:10-7.5." N.J.A.C.

3A:10-7.3(c)(1).

        Accordingly, the Division can find a "substantiated" case of abuse by

means of two distinct and independently sufficient methods. First, N.J.A.C.

3A:10-7.4 lists six circumstances 1 that are sometimes referred to as the




1
    The six absolute circumstances are:

              1. The death or near death of a child as a result of abuse
              or neglect;
              2. Subjecting a child to sexual activity or exposure to
              inappropriate sexual activity or materials;
                                                                           (continued)
                                                                               A-5307-17T4
                                          5
"absolute" circumstances. N.J.A.C. 3A:10-7.4. If any one of these enumerated

circumstances is proven by a preponderance of the evidence, the Division must

find the incident to be "substantiated."

        The second classification method involves a greater degree of discretion.

Under this method, the Division considers seven aggravating factors 2 and four




              3. The infliction of injury or creation of a condition
              requiring a child to be hospitalized or to receive
              significant medical attention;
              4. Repeated instances of physical abuse committed by
              the perpetrator against any child;
              5. Failure to take reasonable action to protect a child
              from sexual abuse or repeated instances of physical
              abuse under circumstances where the parent or
              guardian knew or should have known that such abuse
              was occurring; or
              6. Depriving a child of necessary care which either
              caused serious harm or created a substantial risk of
              serious harm.

              [N.J.A.C. 3A:10-7.4.]
2
    The aggravating factors are:

              1. Institutional abuse or neglect;
              2. The perpetrator's failure to comply with court orders
              or clearly established or agreed-upon conditions
              designed to ensure the child's safety, such as a child
              safety plan or case plan;
              3. The tender age, delayed developmental status, or
              other vulnerability of the child;
                                                                         (continued)
                                                                             A-5307-17T4
                                           6
mitigating factors. 3 N.J.A.C. 3A:10-7.5. If the applicable mitigating factors

outweigh the aggravating factors, the case is "established." See ibid. If the

aggravating factors outweigh the mitigating factors, the case is "substantiated."

See ibid.




              4. Any significant or lasting physical, psychological,
              or emotional impact on the child;
              5. An attempt to inflict any significant or lasting
              physical, psychological, or emotional harm on the
              child;
              6. Evidence suggesting a repetition or pattern of abuse
              or neglect, including multiple instances in which abuse
              or neglect was substantiated or established; and
              7. The child's safety requires separation of the child
              from the perpetrator.

              [N.J.A.C. 3A:10-7.5(a).]
3
    The mitigating factors are:

              1. Remedial actions taken by the alleged perpetrator
              before the investigation was concluded;
              2. Extraordinary, situational, or temporary stressors
              that caused the parent or guardian to act in an
              uncharacteristic abusive or neglectful manner;
              3. The isolated or aberrational nature of the abuse or
              neglect; and
              4. The limited, minor, or negligible physical,
              psychological, or emotional impact of the abuse or
              neglect on the child.

              [N.J.A.C. 3A:10-7.5(b).]


                                                                         A-5307-17T4
                                         7
                                     II.

                                     A.

      We next consider the particular circumstances surrounding the incident of

child neglect at issue in this appeal. We refer to this episode as the DWI

incident. On December 7, 2015, around 1:16 p.m., a police officer responded to

a report that someone was driving a car erratically with a child inside. The

officer pulled over respondent's vehicle after determining that it matched the

description in the report. While speaking with respondent, the officer detected

the odor of alcohol and noticed that she was chewing gum, which the officer

interpreted to be an attempt to mask the smell of alcohol. Respondent failed all

three field sobriety tests that were administered and was placed under arrest for

driving while intoxicated.

      After being arrested but while still on the scene, respondent attempted to

prevent the officer from closing the door of the police vehicle by keeping her

foot outside of the car. She also attempted to remove her handcuffs. As she was

being transported from the scene, respondent screamed at the officer and

attempted to kick out the windows of the police vehicle.         Once at police

headquarters, respondent refused to provide a breath sample for testing.




                                                                           A-5307-17T4
                                           8
      The Division case worker assigned to conduct the investigation

interviewed respondent at the police station. The case worker immediately

could tell that respondent was intoxicated because she was lethargic and slurring

her words.   The case worker's investigation determined that in addition to

driving while intoxicated, respondent also failed to properly secure her four-

year-old daughter, R.V., in a child car seat. At the time of the DWI incident,

R.V. was wearing a lap belt but was not secured in the five-point harness.

Respondent told both the police officer and case worker that she had properly

secured R.V. in the harness, and she claimed that R.V. must have removed it

herself. Based on the foregoing circumstances, the case worker removed R.V.

from respondent's care.

      The DWI incident was not the first time the Division removed R.V. On

July 13, 2015, respondent called the police to report an incident of domestic

violence. Police arrived and saw that respondent was bruised and bleeding and

that there were broken dishes in the home. Respondent's two children, R.V. and

M.C., were present in the home but were not injured.    Respondent appeared to

be intoxicated. M.C.'s father, A.C., was not present when the police arrived, but

the police eventually located him. A.C. gave the police a video that showed




                                                                         A-5307-17T4
                                       9
respondent harming herself in front of her children. Based on this episode and

the video, the Division removed both children from the house.

      The July incident went before a Family Part judge on October 26, 2015.

The Division concluded that the July incident constituted an "established" case

of neglect. Respondent did not appeal that determination.

      Following the DWI incident, respondent undertook efforts to address her

mental health and substance abuse problems. Respondent spent five days at a

detoxification facility before being transferred to another rehabilitation facility

that offers a "dual diagnosis" 4 program that focuses on the mental health of the

patients. Respondent was diagnosed with bipolar disorder and was prescribed

medication. Respondent stayed in the residential program for 28 days after

which she entered a mental health intensive outpatient program.

                                      III.

      On February 9, 2016, the Division determined that the DWI incident

constituted a "substantiated" incidence of child neglect. The letter sent to

respondent on that date explained, "[t]he Division's investigation determined

that child neglect was Substantiated for Substantial Risk of Physical



4
  This term refers to the diagnosis and treatment of persons who suffer from co -
occurring substance abuse and a mental health disorders.
                                                                           A-5307-17T4
                                       10
Injury/Environment Injurious to Health and Welfare – 10/60 with regard to

[R.V.]. You have been identified as a person responsible for the neglect."

(capitalization and bold face in original). Appellant filed a timely appeal of the

"substantiated" determination and the matter was referred to the Office of

Administrative Law (OAL).

      An ALJ conducted an evidentiary hearing on February 5, 2018. At that

hearing, the Division case worker testified as to the methodology she used to

classify the neglect as "substantiated," explaining that she considered and

weighed the aggravating and mitigating factors enumerated in N.J.A.C. 3A:10-

7.5. Specifically, the case worker found that the following aggravating factors

applied: (1) the tender age of the child, who was four; (2) the Division had to

remove the child for safety; and (3) there was a pattern of neglect. With respect

to the pattern of neglect, the case worker noted that this was the third time the

Division was involved with respondent for alcohol-related reasons, and this was

the second time that the Division removed the child. The case worker found that

one mitigating factor applied because respondent participated in rehabilitation

programs while the investigation was still ongoing. 5 Considering all of these


5
  The case worker explained that the "remedial actions" mitigating factor only
applies only with respect to actions taken during the investigation, which must
                                                                     (continued)
                                                                          A-5307-17T4
                                       11
circumstances, the case worker concluded that the aggravating factors "clearly

outweighed the mitigating factors."

      The ALJ decided the case on April 30, 2018, upholding the Division's

"substantiated" classification and rejecting respondent's argument that the

neglect should have been classified as "established." The ALJ's decision rests

on two independent grounds. The ALJ first found that an absolute substantiating

circumstance set forth in N.J.A.C. 3A:10-7.4 applied.6 Specifically, the ALJ

concluded that the Division had proved by a preponderance of the evidence that

by driving a vehicle while intoxicated with an unsecured child, respondent




be completed within sixty days. See N.J.A.C. 3A:10-7.5(b)(1). Respondent
argued at the OAL hearing that the judge should have looked at her ongoing
rehabilitation efforts beyond the time period of the Division's investigation of
the July 2015 DWI incident. The ALJ found that respondent had presented very
little evidence of her rehabilitation. We would only add that this is not a parental
rights termination proceeding. The only issue before us is whether a specific
incident of child neglect is "substantiated." We therefore decline to expand the
temporal scope of the remedial action mitigating circumstance defined in
N.J.A.C. 3A:10-7.5(b)(1).
6
  The Division did not originally rely on the absolute method of establishing a
"substantiated" incidence of neglect. Rather, the case worker's recommendation
was based on her weighing of the aggravating and mitigating factors set forth in
N.J.A.C. 3A:10-7.5. We do not believe that the classification method employed
by the case worker precluded the ALJ from applying the absolute classification
method to the facts elicited by the Division at the evidentiary hearing. The
Division has since adopted the findings and rationale of the ALJ with respect to
both methods for finding that the allegation of child neglect was "substantiated."
                                                                            A-5307-17T4
                                        12
"deprived a child of necessary care that created a substantial risk of serious

harm." See N.J.A.C. 3A:10-7.4(6). As we have already explained, that finding

of an absolute circumstance by itself was sufficient to support the

"substantiated" classification of the incident.    Indeed, under the Division's

regulatory framework, that finding necessitated a "substantiated" classification.

      Respondent on appeal nonetheless urges us to rely on excerpted language

from our decision in N.J. Div. of Child Prot. & Permanency v. V.E., 448 N.J.

Super. 374 (App. Div. 2017), to overturn the ALJ's reliance on this absolute

circumstance as the basis for ruling that the neglect was "substantiated." In V.E.

we noted that a "'substantiated' finding applies to the most severe cases, and

specifically results in matters involving death or near death, inappropriate sexual

conduct, serious injuries requiring significant medical intervention, or repeated

acts of physical abuse." Id. at 389. We also commented that "the regulatory

differentiation between the 'substantiated' and 'established' findings appears to

be a question of the degree of harm and, possibly, the strength of the gathered

proofs." Ibid. Based on these dicta, respondent urges us to reject the absolute

circumstance found by the ALJ because the DWI incident is not a sufficiently

severe example of child neglect to warrant an automatic "substantiated"

classification.


                                                                           A-5307-17T4
                                       13
      Respondent's reliance on the above-quoted dicta in V.E. is misplaced. The

issue in that case was whether the respondent was entitled to an administrative

hearing after the Division had determined that the allegation of child abuse and

neglect was "established." We had no occasion in V.E. to consider whether a

particular set of facts should be classified as "established" rather than

"substantiated."    Moreover, our characterization that selected absolute

circumstances in N.J.A.C. 3A:10-7.4 represent "severe" situations, specifically,

those "involving death or near death, inappropriate sexual conduct, serious

injuries requiring significant medical intervention, or repeated acts of physical

abuse," was not meant to impliedly amend the regulation so that only those

particular circumstances would meet the "substantiated" threshold. Nor did we

have occasion in V.E. to modify the regulations by authorizing the Division to

exercise discretion and determine on a case-by-case basis whether a proven

absolute circumstance was sufficiently serious to warrant a "substantiated "

classification.

      The point simply is that the dicta in V.E. that respondent relies on was

meant to highlight the differences between an "established" and "substantiated"

finding in the context of determining whether an evidentiary hearing is required

as a matter of due process of law, not to alter the regulatory framework's criteria


                                                                           A-5307-17T4
                                       14
or process for deciding between these two classifications. It bears emphasis,

moreover, that our comments in V.E. did not even mention the sixth enumerated

absolute circumstance—"depriving a child of necessary care which either caused

serious harm or created a substantial risk of serious harm"—which happens to

be the one the ALJ in this case found. V.E. should not be read to invalidate that

circumstance as an independently sufficient basis to substantiate an allegation

of child abuse or neglect.

      We would only add with respect to respondent's argument that in our view,

her conduct in this case—drunk driving with an improperly restrained four-year-

old in the car—presents a grave and entirely foreseeable risk of death or serious

harm that, thankfully, did not come to fruition. We are not prepared to exempt

such conduct from the ambit of the absolute method for determining the

appropriate classification of child abuse or neglect. In sum, we conclude that

the ALJ properly found, applying the preponderance of the evidence standard of

proof, that respondent created a substantial risk of serious harm to her daughter

by driving under the influence while the child was not properly restrained in the

rear seat.

      As we have already noted, the ALJ employed what might be described as

a "belts and suspenders" approach by considering both methods for determining


                                                                         A-5307-17T4
                                      15
that the DWI incident was "substantiated." Although not necessary given the

finding that an absolute factor under N.J.A.C. 3A:10-7.4 had been proven, the

ALJ also applied the balancing test the case worker had used in recommending

a "substantiated" classification.   The ALJ found the same aggravating and

mitigating factors that the case worker had found, and the ALJ concluded that

the aggravating factors outweighed the sole mitigating factor. We conclude

from our review of the record that the ALJ's determination that the aggravating

factors outweighed the mitigating factor was not arbitrary, capricious, or

unreasonable, and was supported by sufficient credible evidence presented at

the hearing. This determination by the ALJ and the Division provides an

independent and sufficient basis for the "substantiated" classification.

      Affirmed.




                                                                           A-5307-17T4
                                       16
