                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0586-15T4



NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                               February 1, 2017
v.                                             APPELLATE DIVISION

V.E.,

     Defendant-Appellant.
__________________________________

IN THE MATTER OF R.S., a minor.
__________________________________

         Argued December 1, 2016 - Decided    February 1, 2017

         Before Judges Lihotz, Hoffman and Whipple.

         On appeal from Superior Court of New Jersey,
         Chancery   Division,  Family   Part,  Bergen
         County, Docket No. FN-02-179-15.

         Deric Wu, Assistant Deputy Public Defender,
         argued the cause for appellant (Joseph E.
         Krakora, Public Defender, attorney; Mr. Wu,
         on the brief).

         Christian A. Arnold, Assistant Attorney
         General, argued the cause for respondent
         (Christopher S. Porrino, Attorney General,
         attorney; Andrea M. Silkowitz, Assistant
         Attorney   General,  of  counsel;   Jill  N.
         Stephens-Flores, Deputy Attorney General, on
         the brief).
             Noel C. Devlin, Assistant Deputy Public
             Defender, argued the cause for minor (Joseph
             E. Krakora, Public Defender, Law Guardian,
             attorney; Mr. Devlin, on the brief).

    The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

    Defendant V.E., the mother of R.S. now age nine, challenges

an order dismissing a Title 9 action filed by plaintiff the New

Jersey Division of Child Protection and Permanency (Division),

prior   to    an    evidentiary     hearing.           The    Division    issued     an

administrative "established" finding of abuse or neglect against

V.E.,   who    was    not    afforded       an     administrative        hearing     to

challenge     the    determination.1             She   sought     to   contest      the

Division's finding before the Superior Court in this matter.

However, over V.E.'s objection, the Family Part judge granted

the Division's motion to dismiss the Title 9 litigation.

    On appeal, V.E. argues due process and fundamental fairness

mandate she be granted an evidentiary hearing to contest the

Division's     finding      child   neglect        was       "established."         She

maintains the court erred when it dismissed the Title 9 action

without considering her challenge to the finding.




1
     The action also involved A.S., the child's father.
However, he has not appealed and therefore we limit our
discussion to V.E.'s challenges.



                                        2                                     A-0586-15T4
       Following our review, we conclude the court did not abuse

its   discretion     in    dismissing      the   Title     9   action.       However,

because an established finding is a finding of child abuse or

neglect under N.J.S.A. 9:6-8.21(c)(4), subject to disclosure as

permitted    by    N.J.S.A.       9:6-8.11a(b)      and    other    statutes,      due

process considerations require a party against whom abuse or

neglect     is    established      be     afforded     plenary      administrative

review.      The agency's denial of an administrative hearing is

reversed.

                                          I.

       At the time of the Division's involvement, A.S., V.E. and

R.S. resided on the first floor of a two-family home located in

Hackensack.       The residence was owned by A.S., who was V.E.'s

partner and R.S.'s father.              According to V.E., there were three

families residing in the residence.                In addition to her family,

and a family living on the second floor, V.E. told police "[two]

unknown    Hispanic       males   in    their    30s   .   .   .   live[d]    in   the

basement."

       On December 22, 2014, a kitchen grease fire erupted on the

second floor of the dwelling.                  At the time, V.E. was in her

apartment, A.S. was out of state working, and R.S. was attending

an    after-school    program.           When    concerns      arose   regarding      a

possible    gas   leak,     the   fire    department       forcibly    entered     the




                                           3                                 A-0586-15T4
basement through a back door.                     While searching for the gas line,

firemen forced open an inside basement door and discovered two

rooms containing "a very large quantity of [c]annabis [p]lants."

       A    report       authored          by    Officer     Pedro     Dominguez     of    the

Hackensack Police Department stated when he reviewed the scene

with       the    fire       department,          he      "immediately        smell[ed]    the

overwhelming odor of raw marijuana emanating in the back yard

area of the home."                  Officer Dominguez described the basement's

"sophisticated           .     .    .    growing       operation,"     which     included     a

makeshift irrigation system, fans, fluorescent lights, and heat

lamps.       The entire building was evacuated after the Hackensack

Building         Department         condemned       the    structure     because      of    the

possible         gas    leak       and    an    "unsafe     overload     of    the   electric

panel."

       Narcotics Detective Alexander Lopez-Arenas took over the

criminal investigation.                   He noted the "entire home smelled like

marijuana"        and    valued          the    growing    operation     at    approximately

$2,000,000.

       V.E. was charged with child endangerment and various drug-

related offenses.                  She was detained in the county jail.                    A.S.

was not located; a warrant for his arrest was issued.                                      The




                                                   4                                 A-0586-15T4
Division exercised an emergency removal of R.S., who was placed

with his Godmother.2

     On    December   26,    2014,        the   Division    filed     a    verified

complaint for custody to protect the best interests of R.S.,

pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12.                      The court

upheld the emergency removal and R.S.'s placement outside his

home.      The   resultant   order        granted    the   Division       legal   and

physical    custody   of    the    minor      and   contained    provisions       for

supervised visitation, substance abuse evaluations, and random

urine screenings for both parents.

     On    December    23,        2014,       the   Division's      investigation

commenced with V.E.'s interview.                She denied knowledge of the

growing operation and explained her basement access was limited

to using the laundry room.            Further, she asserted R.S. never

entered the basement.        V.E. insisted she knew nothing of drugs

in her home and stated she was very confused by the police

action.




2
     The Division's removal of a child without a court order,
commonly called a "Dodd removal," is authorized by the Dodd Act,
which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. "The
Act was authored by former Senate President Frank J. 'Pat' Dodd
in 1974[,]" for whom it was named. N.J. Div. of Youth & Family
Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div.
of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2
(App. Div. 2010)).



                                          5                                 A-0586-15T4
       The Division later communicated with A.S. by cell phone.

He reported a man named "Jose" rented the basement apartment.

A.S. maintained he had not been in the basement "for over a

year" and denied knowledge of drugs in his home.                      He insisted

neither V.E. nor R.S. knew of the marijuana growing operation.

Although A.S. stated he was returning to New Jersey that evening

and would report to police, he did not do so and his exact

whereabouts remained unknown.

       The Division also spoke to R.S., who appeared "happy and

talkative" during his interview.             R.S. stated he lived with his

parents, an adult sibling, and his grandparents.                    R.S. confirmed

two of A.S.'s friends lived in the basement, and explained he

only   entered    the     laundry     area   with   V.E.       R.S.'s     responses

reflected he had no knowledge of drugs in the home and never saw

plants in the basement.

       The   Division   also    (1)    interviewed        R.S.'s   Godmother,    her

household members, and V.E.'s adult son, who attended college in

Maine;   (2)    reviewed    R.S.'s     medical      and    school    records;    (3)

considered police reports; and (4) viewed photographs of the

crime scene depicting "multiple rooms in the basement of the

home   with    hundreds    of   marijuana     plants      growing    at   different

stages of development," "many haphazardly placed wires, lighting




                                         6                                 A-0586-15T4
system and an irrigation system throughout the basement" along

with a security system with a video monitor.

      Once    completed,   the     Department      of   Children       and    Families

(Department)        "Investigation     Summary"         issued     findings          and

concluded "substantial risk of injury and environmental neglect"

was   "established"      against     V.E.    and    A.S.     Noting          V.E.    was

incarcerated        on   charges      of     "possession          of     marijuana,

maintaining/operating         CDS      production/facility,                  fortified

structure     for    dispensing     drugs,    hindering      apprehension            [by

uttering] false infor[mation], and endangering the welfare of a

child," the Department stated R.S.

             was placed [at] a substantial risk of harm
             as the home [where] he was residing was
             condemned for illegal wiring which was used
             to conduct an elaborate, illegal marijuana
             growing   operation   complete    with   an
             irrigation system, security cameras and
             lighting.

      The Division released this report to V.E.'s attorney during

a February 19, 2015 case management hearing and informed the

judge   its    investigation       "established"        neglect    against          both

parents.      The Division then proposed to dismiss the Title 9

complaint to proceed solely under Title 30.                       V.E. objected,

arguing:

             [W]e are objecting to the Division's request
             for a dismissal of the Title 9, since we do
             want an opportunity for a fact finding, and
             we do want an opportunity to have the



                                       7                                      A-0586-15T4
            Division   put forth   their  proofs,  and
            indicate a specific reason and prove by a
            preponderance of the evidence that this
            child is an abused [or] . . . neglected
            child.

      The judge denied V.E.'s request for a hearing, reasoning a

hearing was not warranted since the Division was "not asking the

court to make that finding" of abuse or neglect under Title 9.

The judge further stated the "established" finding would not

require     either   parents'   name       to   be   added   to   the   central

registry.      She ordered the Title 9 action dismissed without

prejudice.     The litigation continued pursuant to N.J.S.A. 30:4C-

12.

      Thereafter, V.E. stipulated there was a need for continued

services extended by the Division and waived her right to a

summary hearing.3     Physical custody of R.S. was returned to V.E.,

with the Division continuing care and supervision.                  On August

18, 2015, the court terminated the litigation.               The final order

stated it was safe for R.S. to return to the joint legal and

physical custody of V.E. and A.S.           This appeal followed.




3
     V.E. attended a psychological examination and all random
urine   screens  were  negative,  obviating   substance abuse
treatment.



                                       8                                A-0586-15T4
                                   II.

                                    A.

      Our review of a Family Part order is limited.                     We give

substantial deference to the Family Part's findings of fact,

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), "when supported

by   adequate,    substantial,    credible      evidence."        Finamore      v.

Aronson, 382 N.J. Super. 514, 519 (App. Div. 2006) (quoting

Cesare, supra, 154 N.J. at 412).          Reversal is warranted if there

is   insufficient    evidentiary    support      for     the    trial   judge's

findings, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.

261, 279 (2007), or if the stated findings are "so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably   credible   evidence    as     to   offend    the    interests     of

justice."    Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65

N.J. 474, 484, (1974).     On the other hand, our review of a trial

judge's legal conclusions remains de novo.                Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

                                    B.

      "The primary concern of all public agencies involved with

abuse and neglect is to ensure the safety, well-being, and best

interests    of   the   child."          N.J.A.C.   3A:10-1.4.4          "Other


4
     The    Department of Children         and Families        has recodified
certain      regulations  relevant           to  abuse          and    neglect
                                                                   (continued)


                                     9                                  A-0586-15T4
considerations,   such   as   the   objective     of    maintaining    family

integrity,   promoting   family     functioning    or    the   concern      for

traditional 'parental rights,' are secondary."            Ibid.

    Relevant to the instant appeal, the Legislature has defined

an abused or neglected child as

         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 . . . to exercise a minimum degree
         of care . . . in providing the child with
         proper    supervision   or    guardianship,  by
         unreasonably inflicting or allowing to be
         inflicted harm, or substantial risk thereof
         . . . .

         [N.J.S.A. 9:6-8.21(c)(4)(b).]

    Not every harm or risk of harm is of such a serious nature

to cause a child to become an abused or neglected child.                  Only



(continued)
investigations.   See 49 N.J.R. 98(a) (January 3, 2017) ("The
Department of Children and Families requested, and the Office of
Administrative   Law  agreed   to  permit,   the  administrative
recodification of the Department's rules from Title 10, Human
Services, to the newly created Title 3A, Children and Families,
of the New Jersey Administrative Code.").        The Notice of
Administrative Changes noted the recodified chapters and
technical changes were effective January 3, 2017, but it was
"anticipated that approximately two to four chapters will be
recodified with each Code Update produced."        Ibid.   Where
applicable we cite the recodified regulations.        The Notice
included a table, which set forth "the Title 10 chapters being
recodified along with their chapter headings and new Title 3A
codification." Ibid.     For example, N.J.A.C. 3A:10-1.4 was
formerly N.J.A.C. 10:129-7.7(a).



                                    10                                A-0586-15T4
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).         L.A. v. N.J. Div. of Youth & Family Servs., 217

N.J. 311, 332 (2014).          Thus, it is not inconsistent to find a

child was placed at risk of harm and yet was not abused or

neglected.

      The Department oversees the Division and is charged with

the   prompt    investigation       of    allegations        of   child    abuse    or

neglect.       N.J.S.A.    9:6-8.11.5          See   also    N.J.A.C.     3A:10-2.1.

"[The Department] has broad authority to investigate allegations

of child abuse."          In re L.R., 321 N.J. Super. 444, 449 (App.

Div. 1999).       The "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."                   N.J. Guild of Hearing

Aid Dispensers v. Long, 75 N.J. 544, 562 (1978).

      After receiving a referral regarding possible child abuse

or neglect, the Department follows the defined child protection

investigation process, as authorized by N.J.S.A. 9:6-8.11 and

promulgated        regulations,          N.J.A.C.      3A:10-7.3(b).               The

5
     N.J.S.A.   9:6-8.11  designates  the   Division  as   the
representative in the Department to investigate child abuse or
neglect.



                                          11                                 A-0586-15T4
investigation is designed to assess and assure a child's health

and safety, while the Division gathers evidence regarding the

child's condition, obtains statements from the child, interviews

alleged    perpetrators      or     other       witnesses,        requests    available

police     reports,    and      consults        with    medical     and    educational

professionals.        N.J.A.C. 3A:10-2.4; N.J.A.C. 3A:10-3.1 to -3.3.

The evidence specific to each allegation must be evaluated to

determine whether abuse or neglect has occurred, making "every

reasonable     effort      to     identify        the       perpetrator       for   each

allegation of abuse or neglect."                N.J.A.C. 3A:10-7.3(a).

      The investigation must be completed and a report issued

within seventy-two hours.            N.J.S.A. 9:6-8.11.               Once completed,

the Department must "notify the alleged perpetrator and others

of   the   outcome    of   its    investigation."             Dep't   of     Children    &

Families v. D.B., 443 N.J. Super. 431, 441-42 (App. Div. 2015)

(quoting In re Allegations of Sexual Abuse at E. Park High Sch.,

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

      The statutory and regulatory framework also delineates the

authorized     actions       with    respect           to   any     findings.         The

Department, through the Division, may take both administrative

and judicial action.         Div. of Youth & Family Servs. v. D.F., 377

N.J. Super. 59, 64 (App. Div. 2005).                   Thus, concurrent review of

the Division's findings of abuse or neglect may be undertaken.




                                           12                                   A-0586-15T4
       When a child is removed from his or her home and when the

Division concludes it must provide services to the abused or

neglected child, which would also include services to aid the

parents, its only recourse is to file a protective services

complaint     in    the     Family     Part.         N.J.S.A.       9:6-8.22.        "The

objective of such an action is 'the immediate protection of' the

abused or neglected child."                D.F., supra, 377 N.J. Super. at 67.

In such a proceeding, the Division is obliged to prove the child

was abused or neglected by "preponderance of the evidence, and

only through the admission of 'competent, material and relevant

evidence.'"        P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A.

9:8.46(b)).        If the Division satisfies its burden, the court may

enter    appropriate        orders    to    protect       the    child.     See,    e.g.,

N.J.S.A. 9:6-8.31(b) (awarding temporary custody of the child to

a    "suitable     person");     N.J.S.A.         9:6-8.55      (permitting     court   to

enter appropriate orders of protection).                     When the Division opts

to    proceed      in    the    Family      Part,    it    often     accompanies        its

complaint for custody, care and supervision of the child under

N.J.S.A. 9:6-8.21 to -8.82, with a claim the family is in need

of services under N.J.S.A. 30:4C-12.

       However,         there   are      circumstances          where     the   Division

investigates an incident administratively and concludes a person

committed child abuse or neglect, as defined by N.J.S.A. 9:6-




                                             13                                  A-0586-15T4
8.21(c)(4), forwards the perpetrator's name to the child abuse

registry, N.J.S.A. 9:6-8.11, but does not seek further relief.

In other words, if the Division administratively concludes a

child has been abused or neglected, it need not also file a

complaint in the Superior Court.

      In the past, the administrative findings of child abuse or

neglect        were         categorized        as     "substantiated,"        "not

substantiated,"        or    "unfounded."       However,   effective   April    1,

2013, the Department adopted a regulatory framework providing it

could render one of four findings at the conclusion of an abuse

or   neglect    investigation.        N.J.A.C.       3A:10-7.3(c).     Now,    the

Division   may        conclude   an   abuse     or    neglect   allegation     is:

"substantiated,"            "established,"          "not   established,"        or

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

      The regulations explain:

           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. 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.

           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



                                          14                             A-0586-15T4
            warrant a finding of         "substantiated"    as
            defined in (c)1 above.

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

    In      evaluating    information     gathered,   the       Department

considers    the    following   "aggravating   factors"    to    determine

whether abuse or neglect should be substantiated or established:

            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;

            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;




                                    15                            A-0586-15T4
            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).]

      Additionally,     the     following      mitigating    factors      are

assessed:

            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 "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.   N.J.A.C. 3A:10-7.4.         Although an "established" finding

of abuse or neglect appears to apply to less egregious conduct,

regulations make clear "[a] finding of either established or




                                     16                             A-0586-15T4
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."           N.J.A.C.      3A:10-7.3(d)       (emphasis      added).

See    D.B.,    supra,       443    N.J.     Super.     at    442.     Conversely,      "[a]

finding of either not established or unfounded shall constitute

a determination by the Department that a child is not an abused

or neglected child pursuant to N.J.S.A. 9:6-8.21."                                 N.J.A.C.

3A:10-7.3(d).

       The     Division      asserts       an    established       finding    is    used     to

denote      less   severe         conduct,      and     maintains     the    gradation       of

findings        permits           the   "records         to     better       reflect       the

circumstances of an investigation" and "allow the Division to

distinguish between incidents of abuse and neglect," identifying

the most severe as "substantiated and subject to a Child Abuse

Record Information (CARI) check."                       44 N.J.R. 357(a) (Feb. 21,

2012).         Thus,        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.

                                                III.

       On appeal, raising issues of procedural due process and

fundamental fairness, V.E. urges us to determine an established

finding essentially places her in the same legal position as a




                                                 17                                 A-0586-15T4
substantiated finding.        She insists the report and record makes

her subject to the adverse consequences of disclosure of the

Division's    abuse    finding,     yet      she   was   denied     the     right    to

contest the determination in an adjudicatory forum.

    The     Division    admits     defendant's       name    and    its   report    of

established child abuse are in its database, but maintains V.E.

is not included in the "central abuse registry," which is a

reporting    the      Division     reserves        solely     for    substantiated

findings.      Further,      the    Division        admits    disclosure      of     an

established finding is authorized in more limited circumstances

than a substantiated finding.             Relying on that distinction, the

Division asserts its established finding amounts to nothing more

than an investigatory determination, for which no adjudicatory

review is required.

    The Law Guardian for R.S. asserts the child's safety and

security    were   properly      protected     in    the     continued      Title    30

action.     Thus, the Law Guardian supports the dismissal of the

Title   9   action,    and   suggests      administrative          review    is    more

appropriate to challenge an established finding.                    Alternatively,

the Law Guardian suggests this court could order a remand to

develop the record.




                                        18                                   A-0586-15T4
                                              A.

      "An 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. 1997)).               We recognize "[a]n 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." D.B., supra, 443 N.J. Super. at 443.

"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)).

                                              B.

      We start our review by examining the relevant statutes.

The Legislature has directed the Department maintain a child

abuse     registry,        which      "shall        be    the    repository        of         all

information regarding child abuse or neglect that is accessible

to the public pursuant to State and federal law."                            N.J.S.A. 9:6-




                                              19                                      A-0586-15T4
8.11    (emphasis        added).        The     statute      does     not   differentiate

between the type of abuse or neglect findings; rather, such

designations are regulatory.

       We understand all records for which abuse and neglect has

been "substantiated," "established," or "not established" are

retained by the Department.                   N.J.A.C. 3A:10-8.1(b).            See D.B.,

supra, 443 N.J. Super. at 442.                  Further, the Department does not

isolate those matters where abuse or neglect was substantiated.

Rather,       one     database         contains        all    information       regarding

investigations           of    child    abuse    or    neglect.         N.J.A.C.    3A:10-

7.3(d).             Although       a     regulation          limits     disclosure        of

"substantiated"           findings      when    a     CARI   check     is   required,     we

locate no specific insulation from the child abuse registry for

individuals against whom abuse and neglect is established, other

than    the    Division's         assurances.           N.J.A.C.      3A:10-7.7(a)       ("A

Department employee shall disclose only substantiated findings

for a . . . (CARI) check.")                  But see 45 N.J.R. 738(a) (April 1,

2013)   (stating         the    Division       will    not    disclose      "established"

findings).          We    reject       the   contention       that    the    regulations'

purported limitations can restrict the clear scope of disclosure

authorized by N.J.S.A. 9:6-8.10a(b).

       The information in the child abuse registry is not public

information, as it is considered confidential.                              N.J.S.A. 9:6-




                                               20                                  A-0586-15T4
8.10a(a);      N.J.S.A.   9:6-8.11.6          However,   N.J.S.A.    9:6-8.10a(b)

expressly authorizes release of abuse or neglect records upon

written request to designated persons and entities.                       A lengthy

list of institutions, governmental entities, and persons to whom

the Division may release information contained in the registry

regarding      any   finding    of    abuse    or   neglect    is   set   forth   in

N.J.S.A. 9:6-8.10a(b)(1) to (23), -8.10a(c) to (g).                       Under the

statute, disclosure is not limited solely to perpetrators of

substantiated findings of abuse or neglect, subject to a CARI

check.        Even though N.J.A.C. 3A:10-7.7(a) restricts Department

employees' disclosure of only substantiated findings when a CARI

check    is    requested,7     that   regulation     does     not   encompass     all

authorized disclosures of abuse and neglect findings.

    In a prior matter, this court observed, subject to the

statute's        confidentiality       requirements,          the   Division      is

empowered to disclose "all information" from its investigations

of abuse or neglect "regardless of whether the allegations are

substantiated and whether . . . the information has been entered

6
     Violation of the confidentiality restrictions as defined,
may result in prosecution. N.J.S.A. 9:8-10b.
7
     We also note a CARI check is required in connection with
employment-related background screenings, D.B., supra, 443 N.J.
Super. 442; N.J.A.C. 3A:10-7.7(a), and for applications seeking
to serve as a foster or adoptive parent.      N.J.A.C. 10:122C-
5.5(a)(1).   An established finding would not be revealed for
these purposes.



                                         21                                A-0586-15T4
in the Central Registry."           N.J. Div. of Youth & Family Servs. v.

M.R., 314 N.J. Super. 390, 402 (App. Div. 1998).                 Cf. N.J. Div.

of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App.

Div.   2004)   (The   scope    of     "[p]ermissible   disclosure    of   names

contained in the Central Registry . . . is . . . extensive."),

certif. denied, 182 N.J. 426 (2005).

       In many instances, the authorized disclosure relates to an

investigation of abuse or neglect conducted by police, doctors,

hospitals, the Office of Administrative Law, grand juries, and

the courts.     N.J.S.A. 9:6-8.10a(b)(2), (3), (4), (6), (7).                See

also N.J. Dep't of Children & Families, Div. of Child Prot. and

Permanency     v.   E.D.-O.,    223    N.J.   166,   170   n.2   (2015)   ("The

records may be disclosed to physicians, courts, child welfare

agencies, and certain employers.").

       However, disclosure as authorized by the Legislature is not

as circumscribed as the Division suggests.                 Information may be

released:      to "[a] family day care sponsoring organization for

the purpose of providing information on child abuse or neglect

allegations     involving      prospective     or    current     providers    or

household members," N.J.S.A. 9:6-8.10a(b)(10), N.J.S.A. 30:5B-

25.2; to any person or entity which must conduct a background

check or employment providing services to children that screens

for child abuse or neglect, N.J.S.A. 9:6-8.10a(b)(13), (14); or




                                        22                             A-0586-15T4
regarding a person being evaluated as a possible caregiver for a

child in the Division's care, N.J.S.A. 9:6-8.10a(b)(16).                            The

records may be released when a person seeks registration as a

professional      guardian,     N.J.S.A.       9:6-8.10e,     licensure       for     a

daycare facility, N.J.S.A. 30:5B-25.3; qualification to provide

kinship care, N.J.A.C. 10:122C-2.1(e);8 and persons seeking to

adopt, N.J.S.A. 9:3-54.2(b).

       A prior finding of abuse or neglect may be used by the

Division     to    determine       an    individual's       suitability        as     a

prospective child care placement of children in other public and

private agencies, N.J.S.A. 30:5B-25.3, and "facts of those prior

acts    of    abuse      apparently      are     considered      by    [Division]

representatives when determining whether future allegations are

'substantiated' based on a pattern of abuse," Fall & Romanowski,

N.J.   Family     Law,   Relationships         Involving    Children     §    30:7-1

(2015).      "Finally, and perhaps most significantly, an abuse or

neglect finding may provide a basis for an action to terminate a

parent's     custodial    rights    to   a    child.       N.J.S.A.    30:4C-15(a)

(allowing     petition     to   terminate        parental     rights    based        on




8
     According to the January 3, 2017, Notice of Administrative
Changes, N.J.A.C. 10:122C was recodified to N.J.A.C. 3A:51.
However,   as  of   the   publication   of  this   opinion, the
recodification is not yet manifested in the Code itself.



                                         23                                  A-0586-15T4
adjudication of abuse or neglect)."          N.J. Div. of Child Prot. &

Permanency v. Y.N., 220 N.J. 165, 179 (2014).

       In D.B., this court noted the Division's stated distinction

between substantiated and established findings, but we were not

requested to squarely decide the impact of such an established

finding because our examination in D.B. involved the right of

the defendants-teachers to challenge the communication to their

employer of the Department's findings "child abuse charges have

not been substantiated."        D.B., supra, 443 N.J. Super. at 431

(emphasis added).       The defendants argued "N.J.A.C. 10:129-8.1

[now   at   N.J.A.C.   3A:10-8.1],   which   allows   the    Department    to

retain unproven accusations forever is a violation of N.J.S.A.

9:6-8.40a."9     Id.    at   444.    We   rejected    this   argument     and

concluded

            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 [the defendants] 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.


9
     "The Division . . . shall expunge from its records all
information relating to a report, complaint, or allegation of an
incident of child abuse or neglect . . . which the division
. . . has determined . . . unfounded." N.J.S.A. 9:6-8.40a(a).



                                     24                            A-0586-15T4
               [Ibid.]

       Our     reasoning      in    D.B.    was     grounded       on    the   specific

investigatory nature of the agency's conclusion.                         Understanding

the Division is granted broad authority to investigate child

abuse     allegations,        we    determined       its       release   of    reported

unsubstantiated        findings     to     the   defendants'       employer        did   not

require      the      same    procedural         protections       mandated         by    an

adjudicatory proceeding.             D.B., supra, 443 N.J. Super. at 446-

47.     See also Dep't of Children & Families' Institutional Abuse

Investigation Unit v. S.P., 402 N.J. Super. 255, 270 (App. Div.

2008) ("[A] teacher is not entitled to an adjudicatory hearing

to challenge a finding . . . 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.'") (quoting In re L.R., supra, 321 N.J.

Super. at 460; In re L.R., supra, 321 N.J. Super. at 449) ("We

also    conclude      that   when    DYFS       submits    a    report   to    a    school

district that it has found a charge of child abuse against a

teacher to be 'not substantiated with concerns,' the teacher has

no     right     to    a     hearing       to    contest       DYFS'     investigatory

findings.").




                                            25                                     A-0586-15T4
      Here,      the    Division    similarly       suggests    its    established

finding is a mere "investigatory finding made solely by the

Division and not for disclosure to third parties."                    We disagree.

      Although the regulations provide some differentiation in

the level of disclosure between individuals against whom abuse

or neglect is "established" and those against whom abuse and

neglect is "substantiated,"10 we conclude there is broad impact

accompanying an established finding, which significantly affects

an   individual        against   whom   it    is   issued.     The    effect   of   a

finding that abuse and neglect is established is much closer to

the effect of a substantiated finding than a not substantiated

finding.

      As we have observed, despite the Division's interpretation

of   promulgated        regulations,     N.J.S.A.     9:6-8.10a(b)       and   other

statutes allowing release of records, findings, and reports of a

person found to commit child abuse or neglect or who put a child

at   risk   of   serious     injury     or   harm   do   not   exclude    from   the

disclosure the "less severe" established finding of child abuse


10
     We are aware N.J.A.C. 3A:10-7.6, which mandates the
Department's obligation to issue notification of its findings of
abuse or neglect to a perpetrator, an abused or neglected child,
the child's parents or guardians, and others, restricts
notification to include persons regarding substantiated abuse or
neglect findings.    The regulation, which pre-dates the 2013
amendments, does not mention an obligation to notify those
involved in matters resulting in established findings.



                                         26                                A-0586-15T4
or neglect.     In short, an established finding is a conclusion

abuse    or   neglect     occurred,         as      defined       by   N.J.S.A.        9:6-

8.21(c)(4).          N.J.A.C.       3A:10-7.3(d).                 Disclosure      of     an

established finding is authorized by N.J.S.A. 9:6-8.10a(b) and

other   statutes,     imposing      upon      the    rights       of   a     perpetrator.

Thus, the result of an established finding is "significant" and

is accompanied by "longstanding adverse consequences," which, in

part, match the effects attached to a substantiated finding.

Y.N., supra, 220 N.J. at 179.

                                         IV.

       We turn to the heart of V.E.'s appeal, which regards the

fact    she   was    denied     independent         review        of   the    Division's

determination establishing R.S. was an abused or neglected child

and that it was she who subjected the child to "substantial risk

of injury and environmental neglect."                 She seeks the opportunity

to challenge this conclusion before an independent factfinder.

                                         A.

       Administrative         hearings      are      permitted         to      attack     a

substantiated       finding    of   abuse     and    neglect.          N.J.A.C.      3A:5-

4.3(a)(2)11    (providing       that     by      request      a    person      can     seek

administrative review of substantiated findings); D.F., supra,

377 N.J. Super. at 64-66.           But, "N.J.A.C. 10:120A-4.3(a)(2) [now

11
       Formerly N.J.A.C. 10:120A-4.3(a)(2).



                                         27                                      A-0586-15T4
at   N.J.A.C.       3A:5-4.3(a)(2)]          does   not   provide    a    right     to    an

administrative hearing to one challenging a finding that abuse

or     neglect      has    been    'established,'         'not    established,'          or

'unfounded.'"        D.B., supra, 443 N.J. Super. at 442.

       Few cases examine the nature of review of the Division's

findings and none examine the right to challenge an established

finding.       Prior opinions have addressed possible due process

concerns arising from the Division's findings.                      For example, the

defendants in D.B. attacked the Division's disclosure of "not

substantiated"            findings       because        they     were      denied         an

administrative hearing.                We concluded no hearing was required

because      the    defendants     were      afforded     due   process    protections

such as, defendants retained the right to challenge the wording

used    in    the    notice    sent     to    the   defendants'      employer,       D.B.,

supra, 443 N.J. Super. at 443-44, and a hearing was required,

prior    to    any    action      by    the    school     district       impacting       the

defendants' employment.            Id. at 443.

                   A teacher against whom a finding has
              been made by [the Division] 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 [the Division]
              expressing   concern  about   the  teacher's
              conduct may be significant, especially if it
              is accompanied by what appears to be an
              affirmative finding by [the Division] that a



                                              28                                  A-0586-15T4
            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
            (citations omitted).]

       We reject any suggestion the present matter is governed by

our holding in D.B.             First, as we have discussed, significant

ramifications      of    disclosure        are    attached       to     an    established

finding.        Second,      no   availing        due    process       protections        are

offered    to   V.E.    if     aggrieved     by    the   disclosure          of    what   she

believes is an unsupported conclusion.12                         We also reject the

notion that only the broader implications of a substantiated

finding trigger adjudicatory review.

       Federal and state courts alike recognize due process as a

"flexible"      concept,       such   that      the     scope    of     its       procedural

protections depend upon the circumstances at issue.                           In re R.P.,

333 N.J. Super. 105, 112-13 (App. Div. 2000) (citing Doe v.

Poritz, 142 N.J. 1, 106 (1995)).                  When determining what process

is due, the primary inquiry is "whether there is a protectable

liberty interest at stake."            In re E. Park High Sch., supra, 314

N.J.   Super.    at     160.      A   liberty      interest       is    not       implicated


12
     The parties agree regulations limit the remedy to challenge
an established finding to an appeal to this court.



                                           29                                       A-0586-15T4
anytime   a    governmental   agency    transmits   information   that   may

impugn a person's reputation.          L.R., supra, 321 N.J. Super. at

460.

                   Whether the requirements of procedural
              due process apply to the interest asserted
              hinges upon whether it is encompassed in the
              Fourteenth Amendment's protections of life,
              liberty and property.   Ingraham v. Wright,
              430 U.S. 651, 672, 97 S. Ct. 1401, 1413, 51
              L. Ed. 2d 711 (1977).      If one of these
              interests is implicated, the second step of
              the analysis is to determine what procedure
              would afford the proper level of procedural
              due process to an individual being deprived
              of that right. Ibid.

                   The interest in reputation and the
              interest in nondisclosure have both been
              recognized as protectable liberty interests.
              Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.
              Ct. 869, 876-877, 51 L. Ed. 2d 64, 73-74
              (1977); Wisconsin v. Constantineau, 400 U.S.
              433, 437, 91 S. Ct. 507, 510, 27 L. Ed. 2d
              515, 517 (1971); Doe v. Poritz, 142 N.J. 1,
              100 (1995). However, reputation "apart from
              some   more   tangible  interests   such  as
              employment, is not either 'liberty' or
              'property' by itself sufficient to invoke
              the procedural protection of the Due Process
              Clause." Paul v. Davis, 424 U.S. 693, 701-
              702, 96 S. Ct. 1155, 1160-1161, 47 L. Ed. 2d
              405, 413-414 (1976). Thus, it has been said
              there must be "stigma plus" some other
              tangible element in order to be considered a
              "protectable liberty interest." Valmonte v.
              Bane, 18 F.3d at 992, 999 (2d Cir.1994).

              [M.R., supra, 314 N.J. Super. at 402-03.]

       In the context of due process claims concerning privacy and

reputational interests, the New Jersey Constitution extends due




                                       30                          A-0586-15T4
process protection to personal reputation, "without requiring

any other tangible loss."             Doe, supra, 142 N.J. at 104.                   But

"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."                     R.P., supra, 333

N.J.   Super.    at    113.13      Therefore,       "if    a    government      agency

publicly      disseminates       findings     which       adversely        affect    the

subject of an investigation, the agency may be required as a

matter   of    due    process    to   establish     procedures        by    which    the

investigatory findings may be challenged."                  In re Allegations of

Physical Abuse at Blackacre Academy on 2/10/93, 304 N.J. Super.

168, 182 (App. Div. 1997).            See also Hannah v. Larche, 363 U.S.

420, 442, 80 S. Ct. 1502, 1514-15, 4 L. Ed. 2d 1307, 1321 (1960)

("[W]hen      governmental       agencies     adjudicate        or    make     binding

determinations        which     directly     affect       the   legal       rights    of

individuals,     it    is     imperative     that     those     agencies      use    the

procedures     which    have    traditionally       been    associated       with    the

judicial process.").




13
     Federal law differs as a party must demonstrate "damage to
his or her reputation and impairment of some other interest" to
establish a protectable liberty interest under federal law. In
re E. Park High Sch., supra, 314 N.J. Super. at 160. State law
"gives a plaintiff a protectable interest in reputation
warranting due process protections 'without requiring any other
tangible loss.'" Id. at 161.



                                        31                                     A-0586-15T4
      In M.R., we concluded disclosure of a substantiated finding

of abuse or neglect standing alone "would not rise to the level

of   deprivation   of   [a   defendant's]      liberty      interest."      M.R.,

supra,   314   N.J.   Super.   at    403-04.      Nevertheless,      the    court

determined the procedure employed violated "administrative due

process requirements," id. at 409, and concluded the defendant

was entitled to "an opportunity for an evidentiary hearing" to

challenge a substantiated finding.14           Ibid.


14
     The opinion of          the    court   relied     on     a   violation     of
fundamental fairness:

                [T]he doctrine of fundamental fairness
           is an integral part of due process, and is
           often extrapolated from or implied in other
           constitutional guarantees.      The doctrine
           effectuates   imperatives   that   government
           minimize arbitrary action, and is often
           employed    when   narrowed    constitutional
           standards    fall   short    of    protecting
           individual[s]       against       unjustified
           harassment, anxiety, or expense.

           [State v. Miller, 216 N.J. 40, 71-72 (2013),
           cert. denied, ___ U.S. ___, 134 S. Ct. 1329,
           188   L.   Ed.  2d  339   (2014)  (citations
           omitted).]

     Courts have applied the fundamental fairness doctrine when
"someone was being subjected to potentially unfair treatment and
there was no explicit statutory or constitutional protection to
be invoked."    Doe, supra, 142 N.J. at 109.       However, two
concurring judges, Judge Skillman, see M.R., supra, 314 N.J.
Super. at 417-25, and Judge Eichen, id. at 426, rejected
application of the use of fundamental fairness doctrine, and
separately concluded the defendant was entitled to a trial type
administrative hearing.



                                      32                                 A-0586-15T4
    The       Division        refutes         V.E.'s       assertions         maintaining             an

established         finding     has      no    direct       or    indirect       impact          on    a

perpetrator's         "employment         or    liberty          interests"      because          the

Division does not consider the perpetrator as someone included

in the child abuse registry.                   It reasons no adjudicatory hearing

rights    arise       because      the    information            is   generally        kept       for

agency use.          See D.B., supra, 443 N.J. Super. at 444 (stating

individuals         "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").

    For       the     reasons      outlined         in    our    opinion,       we    reject          as

unsupported the premise of the Division's position.                                     What due

process requires depends in part on "the private interest at

stake"    and    on    "the     fiscal        and    administrative           burdens        .    .    .

additional procedural safeguards would entail."                               J.E. on behalf

of G.E. v. State, 131 N.J. 552, 566-67 (1993).                                  Applying this

test,    we     conclude      an    administrative              hearing    is    required             to

contest       the     Division's          conclusion             abuse     or        neglect          is

established.

    As we have detailed, an established finding is a conclusion

of child abuse or neglect, which is subject to the concomitant

disclosure       to     persons,          agencies,            and     entities         we       have

identified.           Although       disclosure           is    not   as   extensive             as    a




                                                33                                       A-0586-15T4
substantiated          finding,     it     nonetheless      may    affect       certain

employment opportunities related to children, the right to adopt

or   serve      as   a   resource    parent,      and    impact    possible      future

Division proceedings.           Certainly V.E.'s private interests are at

stake.

      It is also undisputed defendant was denied an opportunity

to challenge the Division's findings.                   The Division's conclusion

was reflected only in the Department's "Investigative Summary,"

finalized on February 12, 2015, and disseminated to defendant's

counsel during the February 19, 2015 case management conference.

Importantly, V.E. was not informed this report represented a

final agency decision.

      Examining the content of the report, we note it includes

circumstantial evidence supporting V.E.'s possible knowledge of

the cannabis growing operation, such as the pervasive odor of

marijuana and V.E.'s initial evasiveness when asked about her

relationship with A.S.              Yet, V.E. and others offered evidence

disputing V.E.'s knowledge of drugs in her home, the marijuana

growing    in    the     basement,    or    the   illegal     electrical    overload

caused by the illicit operation.                    Also, the growing operation

occurred behind locked doors to which V.E. was not shown to have

keys; V.E. entered the basement only to wash laundry and never

viewed    the    space    she     asserted    was    rented   by   A.S.    to    third-




                                            34                                  A-0586-15T4
parties;    R.S.'s     statements    to        the     Division   confirmed    these

assertions; the child's Godparents maintained neither A.S. nor

V.E. used or sold drugs, which was borne out by their respective

substance     abuse    evaluations;        R.S.         regularly   attended       and

performed well in school; and defendant was an involved parent

who provided for the health and physical well-being of R.S., as

well as her older college-age child.

    On     this   record,    necessary         procedural     safeguards    must    be

employed    to     allow    V.E.    the        right     to   challenge     disputed

adjudicative facts.         This point is highlighted further when the

credibility       of   witnesses     impacts           the    factual     foundation

underpinning the agency's conclusion.                  Under such circumstances,

procedural fairness entitles V.E. to an opportunity to be heard.

The administrative action must be accompanied by the ability to

seek an administrative remedy.            See M.R., supra, 314 N.J. Super.

at 411 ("The right to a hearing before a government agency,

whose proposed action will affect the rights, duties, powers or

privileges of, and is directed at, a specific person, has long

been embedded in our jurisprudence." (quoting Cunningham v. N.J.

Dep't of Civil Serv., 69 N.J. 13, 19 (1975))).                      See also N.J.

Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 298-99

(2011); D.F., supra, 377 N.J. Super. at 64.




                                          35                                A-0586-15T4
      We   recognize     a    party      against           whom   abuse   or     neglect      is

established may seek recourse through a direct appeal from what

amounts to the agency's final decision.15                             N.J.A.C. 3A:5-2.8.

See Fall & Romanowski, supra, § 30:6-2(b) (2015) ("To the extent

that administrative review is precluded, such findings are a

final decision appealable as of right to the Appellate Division

pursuant to R. 2:2-3(a)(2).").                       However, as we recognized in

M.R., the determination of disputed facts, including credibility

determinations, is not the function of this court.                              M.R., supra,

314   N.J.   Super.      at    411-12.               Accordingly,         we    reject       the

suggestion      appellate      review      should           be    undertaken,         and,    as

necessary,   a    remand      ordered.           The       inherent    delay     of    such     a

process is untenable, particularly in light of the fact the

administrative     review      process          is    well-established           and    easily

engaged.

      Finally,     we    do    not       view        the    additional         need    for    an

administrative      hearing         as     a         burden,      which        significantly

outweighs the need to adjudicate the disputed facts impacting

the   private    interest      of    the    party          affected     by     the    agency's

finding.        During   argument         it     was        estimated     by     the    Deputy


15
     The Division admits no document informed defendant the
report served as the final agency determination, subject to
appeal as of right.    At oral argument the Division agreed the
issue is raised in this appeal.



                                            36                                         A-0586-15T4
Attorney     General         that        approximately            five     percent        of    the

approximately         2000     abuse       and        neglect      determinations          issued

annually     were       "established"            findings.              Not   all    of        these

approximately         100    matters      will        be    challenged,       suggesting         the

burden is manageable.              Overall, "we cannot ignore the overriding

concern    for    the       appearance      of        procedural        fairness     in    agency

adjudications."             Id. at 412 (quoting J.E. on behalf of G.E.,

supra, 131 N.J. at 568).

     We     hold       when        the     Division             finds    parental         conduct

establishes       abuse       or    neglect           of    a     child,      subjecting        the

individual       to    the    ramifications            of       disclosure     set    forth      in

various identified statutes, a party who seeks to challenge that

finding shall be entitled to an administrative hearing.

                                                 B.

     V.E.     alternatively              sought       to     challenge        the    Division's

finding before the Family Part.16                      She argues the dismissal over




16
     Regulations   recognize   the   potential   for   concurrent
investigations and review by the Division and the Family Part,
resulting in both administrative and judicial findings regarding
any abuse or neglect allegations.     See e.g., N.J.A.C. 3A:10-
7.3(h)(1) (providing the Division to retain administrative
authority to decide "whether an allegation of conduct determined
to be abuse or neglect by the . . . Chancery Division, is
established   or   substantiated");    N.J.A.C.   3A:10-7.3(h)(3)
(authorizing the Division the administrative authority to
"[d]etermine the finding for each allegation of abuse or
neglect" even if the court declines to adjudicate the issue).



                                                 37                                       A-0586-15T4
her objection violated Rule 4:37-1(b).                       We are not persuaded.

We briefly address this challenge.

             When   a   judge   has    given    the   Division
             authority and responsibility for the care
             and supervision of a child removed from his
             home pursuant to Title 9 and Title 30,
             N.J.S.A. 9:6-8.30 and N.J.S.A. 30:4C-12, the
             Division   may    proceed    under    Title   30,
             irrespective of a finding of abuse or
             neglect.    M.M., supra, 189 N.J. at 292-93
             (2007).   However, when the abuse or neglect
             proceeding is terminated without a finding
             that the allegations in the complaint are
             substantiated, the Title 9 action should be
             dismissed after exercise of jurisdiction
             under Title 30 and orders should be entered
             in   accordance    with    the    standards   and
             procedures     pertaining      to     Title    30
             litigation.

             [Div. of Youth & Family Servs. v. N.D., 417
             N.J. Super. 96, 109 (App. Div. 2010).]

       Rule 4:37-1(b) governs the voluntary dismissal of actions

by   order   of     the    court.         In    relevant       part,    Rule    4:37-1(b)

provides that "an action shall be dismissed at the plaintiff's

instance     only    by    leave     of    court       and     upon    such    terms     and

conditions as the court deems appropriate" and, unless otherwise

stated, such dismissals are made without prejudice.                            Our courts

have    consistently       held     that       Rule    4:37-1(b)       is     intended    to

protect    litigants       from    having       to    defend    a     subsequent    action

premised upon similar charges in the future.                           Burns v. Hoboken

Rent Leveling & Stabilization Bd., 429 N.J. Super. 435, 445

(App.   Div.      2013).      This    decision          lies    within      the    judge's



                                               38                                  A-0586-15T4
reasoned discretion.            A.T. v. Cohen, 445 N.J. Super. 300, 307

(App. Div. 2016).

      The Division's request resulted from its conclusion abuse

or neglect was not substantiated and, with limited services, the

child could safely be returned home.                   Although we disagree with

the   suggestion      V.E.      was   not   subject     to     significant        adverse

ramifications        of    disclosure,      (a    determination          noted    by     the

reviewing   judge),        we   recognized       the   Division's         objective       to

effectuate reunification was achieved.                    The "primary concern"

under   Title    9        "is   the    protection       of     children,         not     the

culpability     of    parental        conduct."        G.S.    v.    Dep't       of    Human

Servs., 157 N.J. 161, 177 (1999).                See also N.J.S.A. 9:6-8.50(c)

("[I]f the court concludes that its assistance is not required

on the record before it, the court shall dismiss the [Title 9]

complaint and shall state the grounds for the dismissal.").

      The   ordered          administrative        hearing          on    the         issues

surrounding the Division's findings satisfies adequate review.

Under these facts, we cannot agree the Title 9 litigation should

have remained open to provide such an adjudication, when the

child's safety was no longer in dispute.                      We conclude the judge

did not abuse her discretion in granting the Division's motion

to dismiss.




                                            39                                    A-0586-15T4
                               V.

    In summary, we affirm the order dismissing the Title 9

litigation.   We reverse the agency's denial of an adjudication

hearing and remand the matter to the Office of Administrative

Law for proceedings consistent with our opinion.

    Affirmed in part.   Reversed and remanded in part.




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