New Jersey Division of Child Protection and Permanency

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NOT FOR PUBLICATION WITHOUT THE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.

40 A-0586-15T4