                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3932-15T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

S.H.,

          Defendant-Appellant,

and

K.C. and O.C.,

     Defendants.
____________________________

IN THE MATTER OF L.C., J.H.,
G.H., and D.C.,

     Minors.
____________________________

                    Argued January 7, 2019 – Decided April 1, 2019

                    Before Judges Messano, Fasciale and Gooden Brown.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Bergen County,
            Docket No. FN-02-0178-15.

            Mary K. Potter, Designated Counsel, argued the cause
            for appellant (Joseph E. Krakora, Public Defender,
            attorney; Mary K. Potter, on the brief).

            Peter D. Alvino, Senior Deputy Attorney General,
            argued the cause for respondent (Grewal S. Gurbir,
            Attorney General, attorney; Andrea M. Silkowitz,
            Assistant Attorney General, of counsel; Peter D.
            Alvino, on the brief).

            Lisa M. Black, Designated Counsel, argued the cause
            for minors (Joseph E. Krakora, Public Defender, Law
            Guardian, attorney; Lisa M. Black, on the brief).

PER CURIAM

      In 2014, the Division of Child Protection and Permanency (the Division)

filed a complaint and order to show cause against defendant S.H., seeking care

and supervision of defendant's stepdaughter, L.C. (Lisa), age nine, and

defendant's other two children, ages five and three. 1 The precipitating event was

a referral from Lisa's school reporting deep scratch marks on the child's face,

and the child telling the Division that defendant had slapped and scratched her.



1
   We use initials and pseudonyms pursuant to Rule 1:38-3(d)(12). The
complaint also named as defendants O.C., the father of all three children, and
K.C., Lisa's mother.


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                                        2
The Family Part judge entered an order awarding the Division care and

supervision of the children.

        Two months later, on a date scheduled for the fact-finding hearing, see

N.J.S.A. 9:6-8.44, the Division moved to dismiss the Title Nine allegations and

proceed solely as a family-in-need-of-services litigation pursuant to Title Thirty.

Defendant objected, arguing that she wished to test the Division's allegations of

abuse and neglect. 2 The judge granted the Division's motion, ruling, "[t]he

Division is entitled to enter its finding of established on its record and is not

obligated to go forward with a fact[-]finding hearing." The judge dismissed the

Title Nine allegations without prejudice. Defendant then stipulated that her

family was in need of services pursuant to Title Thirty.

        The litigation continued for several months.       Ultimately, the parties

consented to an order that permitted defendant to reunite with her family in the

family home and supervise her three biological children.3 O.C., or a Division-




2
   The transcript of the proceedings reflects a similar argument was made in
another case earlier in the day with the same counsel involved. The judge
referenced her earlier ruling but failed to provide any specific detailed reasoning
in this case.
3
    During the litigation, defendant and O.C. had another child, D.C.


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                                        3
approved supervisor, would supervise defendant's contact with Lisa.            The

litigation terminated shortly thereafter, and defendant filed this timely appeal.

      Once again, at issue are the 2013 amendments to the Division's

regulations, which established a "four-tier framework" categorizing "outcomes

the Division may reach after investigating an abuse or neglect allegation." N.J.

Dep't of Children & Families v. R.R., 454 N.J. Super. 37, 40 (App. Div. 2018)

(citing N.J.A.C. 3A:10-7.3(c)(1)-(4); Dep't of Children & Families v. D.B., 443

N.J. Super. 431, 441 (App. Div. 2015)). 4 Prior to the amendments, the Division's

investigation of child abuse or neglect resulted in one of two findings —

"substantiated" and "unfounded." 5 44 N.J.R. 357(a) (Feb. 21, 2012). The

amendments added two intermediary findings of "established" and "not

established." Ibid.




4
  We note that in less than six years since their final adoption, these regulations
have sparked numerous appeals, resulting in three published opinions from this
court, more than a dozen unpublished decisions, and a recent grant of
certification by the Supreme Court, S.C. v. New Jersey Department of Children
& Families, No. A-4792-15 (App. Div. Aug. 31, 2018), certif. granted, ___ N.J.
___ (2019).
5
  In 1995, the Division established three categories of investigative findings:
"substantiated," "not substantiated," and "unfounded." 27 N.J.R. 3609(a) (Sept.
18, 1995). Later in 2005, the Division amended the regulation by removing the
"not substantiated" category. 37 N.J.R. 2132(a) (June 20, 2005).
                                                                           A-3932-15T2
                                        4
      According to the Division, redefining the categories of investigative

findings "would allow child protective investigators more latitude to accurately

reflect the nature of their conclusions regarding allegations of abuse or neglect."

Ibid. Under the amendments,

                  [a]n allegation shall be "substantiated" if the
            preponderance of the evidence indicates that a child is
            an "abused or neglected child" . . . and . . .
            substantiation is warranted . . . .

                  An allegation shall be "established" if 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)(1) and (2).]

       Additionally, N.J.A.C. 3A:5-4.3(a)(2), provides the right to an

administrative hearing only for "substantiated" findings of child abuse or

neglect. In D.B., we held that the lack of any ability to challenge a "not

established" finding did not violate due process. 443 N.J. Super. at 442-44. Less

than two years later, however, we held that "an administrative hearing is

required to contest the Division's conclusion abuse or neglect is established."

N.J. Div. of Child Prot. & Permanency v. V.E., 448 N.J. Super. 374, 400 (App.

Div. 2017). We rejected the defendant's argument that she had the right to

adjudicate the finding before the Family Part within the Title Nine litigation. Id.

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                                        5
at 402-04. We remanded the matter for an administrative hearing before the

Office of Administrative Law (OAL). Id. at 404.

      Against this backdrop, defendant contends due process entitles her "to a

trial-type hearing to challenge" the Division's established finding. The order

terminating the litigation in this case, as well as defendant's brief, were filed

before we issued our decision in V.E. In light of our holding in that case, the

Division concedes defendant is entitled to an administrative hearing in the OAL

and does not contest a remand for that purpose. In the interests of justice, we

deem defendant's notice of appeal amended to include the Division's established

finding. We summarily remand the matter to the Division with direction to

transmit the matter to the OAL within four weeks of this decision, so that

defendant may contest the "established" finding at an administrative hearing.

      Defendant's second point on appeal is that because the regulations denied

her an automatic right to contest the established finding, it was error to dismiss

the Title Nine complaint, particularly since "there was a joinder of issues." As

noted, we rejected a similar argument in V.E., 448 N.J. Super. at 403-04. In

light of our order remanding the matter to the OAL, we see no reason to reach a

different conclusion in this case.




                                                                          A-3932-15T2
                                        6
      Lastly, defendant poses a direct challenge to the regulations, arguing their

adoption was "ultra vires" because they are "contrary to [Title Nine's] purpose

. . . ."6 Defendant argues we should "invalidate [the] rules and permit [her] to

challenge [the] finding against her in an administrative hearing."

      Concededly, defendant never presented such a challenge to the Family

Part judge. We usually decline to address an argument not presented to the trial

court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting

appellate courts generally decline to consider issues not properly raised to the

trial court "unless the questions so raised on appeal go to the jurisdiction of the

trial court or concern matters of great public interest").

      We acknowledge that whether these regulations as adopted exceed the

Legislature's grant of authority to the Division is a question of great public

interest. Defendant argues, for example, that the regulations have their genesis

in the enactment of N.J.S.A. 9:6-8.40a, requiring the Division to "expunge from

its records all information relating to . . . an incident of child abuse or neglect"

when the allegation was unfounded. L. 1997, c. 62, § 1.            The Legislature

authorized the Division to promulgate regulations to "further define []" the


6
  We reject out of hand the Division's position, espoused at oral argument, that
defendant's brief does not pose a direct challenge to the regulations. Notably,
the Division did not address the issue at all in its brief.
                                                                            A-3932-15T2
                                         7
"process of making a determination of an unfounded" finding. Ibid. In 2004,

the Legislature amended the statute to omit the prior definition of "unfounded,"

instead allowing the Division to define the term through regulations. L. 2004,

c. 130, § 32.

      Essentially, defendant contends the Division exceeded the Legislative

grant of authority by creating a four-tier framework, denying administrative

review to all but one category of findings and exempting three of the categories,

including the "not established finding," from the expungement mandate

contained in N.J.S.A. 9:6-8.40a. See N.J.A.C. 3A:10-8.1 (limiting expunction

to only "unfounded" findings); see also R.R., 454 N.J. Super. at 39 (noting a

"not established" finding "still permanently tars a parent with a finding that there

was something to the allegation").

      However, we have granted defendant the relief she seeks, i.e., the ability

to challenge the Division's established finding. If successful, she will be entitled

to expungement. If she is not successful, there is no principled reason why the

finding should be expunged.         See N.J.A.C. 3A:10-7.3(c)(2) (defining an

"established" finding as one in which "the preponderance of the evidence

indicates . . . a child is an 'abused or neglected child' as defined in N.J.S.A. 9:6 -




                                                                              A-3932-15T2
                                          8
8.21 . . . ."). As a result, we choose not to address the direct challenge defendant

makes to the regulations as being ultra vires.

      We affirm the orders dismissing the Title Nine complaint and terminating

the Title Thirty litigation. We remand to the Division to provide defendant with

an administrative hearing within four weeks of this decision.

      Affirmed in part; remanded in part. We do not retain jurisdiction.




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