DCPP VS. P.S. AND C.L.(NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES)(RECORD IMPOUNDED)(CONSOLIDATED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2059-13T3
A-4589-14T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Petitioner-Respondent,

v.

P.S. and C.L.,

Respondents-Appellants.

________________________________________________________________

Submitted January 18, 2017 – Decided July 19, 2017

Before Judges Espinosa, Suter and Guadagno.

On appeal from the New Jersey Department of
Children and Families, Division of Child
Protection and Permanency.

P.S. and C.L., appellants pro se.

Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Lori
J. Decarlo, Deputy Attorney General, on the
briefs).

PER CURIAM
 Defendants P.S. (Patricia) and her husband, C.L. (Chad),

appeal from two decisions made by the Division of Child Protection

and Permanency (the Division) regarding A.P. (Adam) and D.P.

(David), Patricia's two sons with her former husband, J.P. (John).

The first decision, appealed under Docket No. A-2059-13, announced

in letters to defendants dated December 19, 2013 and March 14,

2014, was that child abuse allegations made against them in

September 2013 were "not established." The second decision

challenged, appealed under Docket No. A-4589-14, was made on May

6, 2015, when the Division decided not to provide services to the

family following the completion of a child welfare check. We

scheduled the two appeals back-to-back and now decide both in this

opinion.

I.

Adam and David live with Patricia, Chad, and Chad's two sons,

C.L. (Cory) and B.L. (Brian)1; they visit with John during the

week and every other weekend. The referral to the Division was

made in September 2013, shortly after defendants were married and

returned from a family vacation in the Catskills. It is evident

from the records that the children's resistance to the change in

1
At the time of the Division's investigation, Adam was thirteen;
David was eight; Brian was seventeen and Cory was ten.

2 A-2059-13T3
their lives was a factor in the allegations, although not a

dispositive one in the Division's resolution of its investigation.

John contacted the Division,2 and reported that his children

told him Chad "slaps" them "on their faces and heads and he . . .

put his knee on [Adam's] chest one day in the past." John admitted

the children did not suffer any injuries and that he did not know

what degree of force Chad used or how frequent the abuse was.

The Division interviewed David and Adam at their respective

schools. Both boys described having good relationships with their

mother but also stated she "sometimes" disciplines them by hitting

them on their heads and arms but left no marks on them. Adam

recalled that she last hit him or his brother about "two to three

months ago."

Both boys also reported physical abuse by Chad. David

reported that Chad hits him and Adam using "an open hand, on the

side of their heads, near their ear[s]," and that it happened

"often and sometimes [Chad] leaves a black and blue on the side

2
On the day before he contacted the Division, John reported to
the Glen Rock Police Department that Adam and David told him they
had been verbally and physically abused by Chad and his sons while
they were on vacation. Adam and David told the police "they have
fear issues of being home with [Chad]." The police did not observe
any physical signs of abuse on Adam and David. However, the police
noted that it was "apparent that the children feel that [Chad]
should have no authority in matters of discipline when it comes
to them." Patricia denied any abuse by Chad.

3 A-2059-13T3
of their head[s]." Adam reported that Chad hits him and David "on

the arm, on top of the head and on the face" and that it happened

"approximately four or five times a month," but "does not leave

intentional[] marks," only "accidental[] scratches." David did

not know why Chad hits him, but added that Chad "tries to teach

him a lesson" and recalled that Chad "hits him and [Adam] when

they laugh or 'for no reason.'" Adam stated that Chad hits him

because "according to [Chad], he . . . was acting like a 'moron.'"

David stated he was last hit by Chad two days prior to the

interview; Adam stated Chad last hit him a week before the

interview. Both boys reported they were hit while on vacation.

David stated that Chad "gently put him and his brother on the

ground and put his . . . knees on their chest because he was upset

that they . . . were laughing." Adam similarly recalled the

incident, and stated that he asked Chad to stop but he refused.

David stated that, in response, Patricia told him that Chad "'was

not putting to [sic] much pressure' when he put his knees on their

chest."

Both boys reported that sometimes Chad directed Brian to hit

them. Adam stated that Chad tells Brian "to keep them . . . in

line if they . . . act like morons," and that Brian sometimes hits

them without such instruction but does not leave any marks on

them. Adam said that, although Patricia does not always agree

4 A-2059-13T3
with Chad hitting them, she frequently will say they "deserve it."

David reported that his mother tells Brian to stop when she

witnesses him hitting them.

While David confirmed he was afraid of Chad because he hits

him, Adam denied being "really afraid of" Chad and Brian. Adam

said they had a recent "family meeting" where Chad agreed to "work

on not hitting him and his brother." Although David and Adam had

some observable abrasions, they denied that any were caused by

willful abuse by Chad or Brian.

The Division also conducted a meeting with Chad and Patricia

at their home. Patricia acknowledged "there was a lot of

horseplay" in the house and that Chad "has slapped the children

in the past which she allows." Patricia also admitted to slapping

the children herself, but denied causing any bruises. She

explained she slaps them "in the face because she does not want

to touch their private parts . . . because this would 'open her

up to other allegations.'" After being counseled on alternative

methods of discipline, Patricia did not seem to understand why it

was inappropriate for Chad to physically discipline Adam and David.

As an example, she believed her husband was justified in slapping

her son after he kicked Chad in the testicles. The Division

caseworker advised Patricia that the Division would be called

numerous times if she continued to allow Chad to slap her children.

5 A-2059-13T3
Chad characterized the instance of abuse on vacation as

"roughhousing," but admitted to occasionally slapping the

children. He was "very frustrated" when he was advised against

hitting David and Adam. However, following her conversation with

the caseworker, Patricia told Chad "he would no longer be hitting

the children."

After performing a safety assessment of Patricia and Chad's

home, the Division concluded the home was safe and intervention

was not required.

A search of the Division's computer records yielded ten

Division referrals involving Chad, some of which involved physical

abuse.3 The contact sheet also reproduced notes from a 2007

substantiation of neglect against Chad and his ex-wife stemming

from an instance of domestic violence. After Chad appealed that

determination, the Division modified the finding of neglect to

"unfounded." As a result, the Division issued a Notice of Change

of Child Abuse or Neglect Finding (Notice), dated December 1,

2010, that stated, in part: "Because the 'substantiated' finding

has been changed [the Division] will not keep a record of the

3
Defendants contend this report in the Division's case notes is
false and that the Division used this false information in its
investigation of the referral in this case despite the fact that
the prior allegations were substantiated against his former wife
and not him.

6 A-2059-13T3
results of this investigation on its central registry of confirmed

perpetrators of substantiated incidents of child abuse and

neglect." The Notice further advised that "all child abuse records

associated with this investigation" would be expunged after three

years pursuant to N.J.S.A. 9:6-8.40(a) and N.J.A.C. 3A:10-8.14

unless certain events occurred within that time period. As of

September 2013, when the instant referral was made, the 2007

referral records had not been expunged.

The Division conducted follow-up interviews with defendants,

David, Adam, Brian and Cory in November 2013. David stated he

knew the Division was interviewing him because Chad "hits him 'all

the time,'" and recalled Chad last slapped him on the side of the

head for spilling Gatorade on the couch. David stated "it hurt

when he was hit and that he heard ringing in his ears." David

again reported his mother occasionally slaps him and was aware of

Chad's abuse, although he stated "she would not admit to it." He

stated he was "'a little' afraid of [Chad]" and "wished [he]

would stop slapping him and [stop] tell[ing] his mother when he

had to go to bed." At one point, David claimed he was sleeping

in the garage as a result of Chad's abuse, but then admitted it

4
The regulations governing Child Protection Investigations were
originally codified under N.J.A.C. 10:129, but as of January 3,
2017, they were recodified under N.J.A.C. 3A:10.49. N.J.R. 98(a)
(Jan. 3, 2017). We refer to the current regulation throughout.

7 A-2059-13T3
was a "joke." The Division caseworker warned him against lying,

and David stated he understood.

Adam was reluctant to talk about Chad's alleged abuse and

"minimized any physical discipline, stating that [Chad] really

only slapped them on the shoulder when they were being really

disrespectful." He stated Chad had not slapped him in two months,

and denied that it hurt. Adam also denied any physical discipline

by Patricia.

Cory admitted seeing Chad "slap [Adam] on the shoulder when

he was making stupid noises" but denied seeing him hit David. Cory

felt Chad "had anger issues" because he "yelled a lot and . . .

was extremely strict." Seventeen-year-old Brian asserted,

however, "there was absolutely no child abuse going on in his

home." He admitted to wrestling and having pillow fights with his

brother and step-brothers, but denied hurting them. He also denied

that Chad ever directed him to discipline Adam or David.

Chad was described by the interviewer as "somewhat

nervous . . . but cooperative." Patricia and Chad both admitted

to slapping their children, but denied hurting them or leaving any

marks. Chad stated that "slapping" meant "a slap on the shoulder,

or the side of the head." After the Division caseworker explained

to Patricia and Chad that physical discipline was ineffective and

discouraged by experts, they were observed as "somewhat evasive

8 A-2059-13T3
initially, stating that they could not understand why [Chad] should

not be disciplining the children." The caseworker followed up by

explaining to them the laws against corporal punishment and

stressed that physical discipline, if any, should not be performed

"by anyone other than a biological parent." Patricia and Chad

were also advised that "aside from obvious harm, they were also

giving substance to the referent's allegation of physical abuse."

They "eventually agreed that neither one of them would physically

discipline the other parent's children and that they would try to

refrain from any physical punishment."

The Division also interviewed Patricia, Chad, and David as a

group to address Chad's physical abuse of David, who "was firm in

insisting that [Chad] . . . slapped him all the time." The

Division caseworker observed that David "did not appear to be

afraid of [Chad] during the meeting and often openly yelled at

him," but did become "upset and eventually left the room crying."

The case worker encouraged Patricia to seek individual and family

therapy for David, as he was clearly very affected by the situation

at home.

In a private meeting with Chad, the Division caseworker also

addressed his prior involvement with the Division. He stated that

Patricia was aware of his history and gave the caseworker

permission to freely address the issue in front of her. The

9 A-2059-13T3
caseworker reported that Chad was "very bitter," and complained

about being treated unfairly in his previous matters with the

Division.

After the follow-up interviews, the Division completed a

Family Risk Assessment, noting there had "been more than one

incident of domestic violence in the past 12 months (including the

current referral)," and found the risk level for abuse was

"Moderate." Further, the Division concluded the allegations made

against Chad regarding the abuse of David and Adam were "Not

Established." The Division's report closing the case in November

2013 included the following findings:

There is not a preponderance of the evidence
that the children were abused or neglected by
definition, but evidence that the children
were harmed or placed at risk of harm. The
children as well as [Chad] and [Patricia]
admitted that they use physical punishment as
discipline for the kids. They were strongly
advised against that and have agreed to
utilize alternate forms of discipline.

The Division notified Patricia and John that it had determined

the allegation that Adam and David were abused was "Not

Established," and that a record of the incident would be maintained

in the Division's files but would "not be disclosed except as

permitted by N.J.S.A. 9:6-8.10a." The notification letters also

included a definition of the "Not Established" finding:

10 A-2059-13T3
 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.

II.

Following the adoption of N.J.A.C. 3A:10-7.3 in April 2013,

the finding of "not established" is one of four possible

determinations the Division may make following its investigation

of an allegation of abuse or neglect. In their appeal, defendants

challenge the four-tier system established by that regulation,

with particular criticism of the "not established" finding,

arguing it vests too much discretion in the Division and does not

afford them the right to an administrative appeal. They also

attack the factual basis for that finding in this case and contend

the record of the Division's investigation should be destroyed

because it contains false and prejudicial information. We are not

persuaded by these arguments.

N.J.S.A. 9:6-8.21(c) defines an abused or neglected child.

Corporal punishment constitutes "abuse" under N.J.S.A. 9:6-

8.21(c)(4)(b) if it is excessive. The statute provides, in part,

that a child is "abused or neglected" when his or her

physical, mental, or emotional condition has
been impaired or is in imminent danger of
becoming impaired as the result of the failure

11 A-2059-13T3
 of his [or her] parent or guardian . . . to
exercise a minimum degree of care . . . by
unreasonably inflicting or allowing to be
inflicted harm, or substantial risk thereof,
including the infliction of excessive corporal
punishment.

[Ibid.]

To constitute abuse or neglect, the failure to exercise a

"minimum degree of care" must rise to the level of "grossly or

wantonly negligent." L.A. v. N.J. Div. of Youth & Family Servs.,

217 N.J. 311, 332 (2014) (quoting G.S. v. N.J. Div. of Youth &

Family Servs., 157 N.J. 161, 178 (1999)). "Thus, it is not

inconsistent to find a child was placed at risk of harm and yet

was not abused or neglected." N.J. Div. of Child Prot. &

Permanency v. V.E., 448 N.J. Super. 374, 385 (App. Div. 2017).

When a referral is made to the Division that alleges a child

is abused or neglected, the Division undertakes an investigation

to determine whether abuse or neglect, as defined in N.J.S.A. 9:6-

8.21(c), has occurred. N.J.S.A. 9:6-8.11; see also N.J.A.C. 3A:10-

2.1(a). N.J.A.C. 3A:10-7.3(c)5 defines the four findings to be

made after the Division evaluates the available information as

follows:

5
Prior to April 1, 2013, the administrative findings of child
abuse or neglect were categorized as "substantiated," "not
substantiated," or "unfounded." See 45 N.J.R. 738(a) (April 1,
2013) (adopting the four-tier framework in place of the prior
three-tier framework).

12 A-2059-13T3
 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 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.

If the Division finds the allegation "established" or

"substantiated," that finding "constitute[s] a determination by

the [Division] 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). If,

however, the Division finds the allegation to be "not established"

or "unfounded," the finding "constitute[s] a determination by the

13 A-2059-13T3
[Division] that a child is not an abused or neglected child

pursuant to N.J.S.A. 9:6-8.21." Ibid.

The nature of the finding made also has implications for the

right to seek administrative review and the retention of the

records created.

N.J.A.C. 3A:10-8.1(b) requires the Division to "retain each

record which contains a substantiated, established, or not

established report." Only records "relating to an unfounded

finding" are required to "be expunged in their entirety," unless

an exception applies under N.J.A.C. 3A:10-8.3. N.J.A.C. 3A:10-

8.1(a).

N.J.A.C. 3A:5-4.3(a)(2) provides for an administrative

hearing upon a request "to appeal a substantiated finding of child

abuse or neglect, when there are material disputed facts."

(Emphasis added). Consequently, the regulation does not provide

the right to an administrative hearing to challenge a "not

established" finding. In V.E., supra, 448 N.J. Super. at 402, we

concluded that a party has the right to an administrative hearing

when an "established" finding has been made. Findings that

allegations of abuse or neglect are "not established" or

"unfounded" are final decisions appealable as of right to the

Appellate Division. R. 2:2-3(a)(2).

14 A-2059-13T3
 A.

We first consider defendants' challenges to N.J.A.C. 3A:10-

7(c)(3) and their argument that the investigation records here

should be destroyed. Defendants argue that N.J.A.C. 3A:10-7(c)(3)

vests too much discretion in Division caseworkers because it lacks

a clear legal standard to be applied and allows Division

caseworkers to make a "not established" finding based upon little

evidence in a completely subjective analysis. The Division

counters that the regulation represents an appropriate exercise

of agency authority and was duly promulgated pursuant to the

authority granted to it by the Legislature in N.J.S.A. 9:3A-7(g),

N.J.S.A. 9:6-8.15 and N.J.S.A. 9:6-8.72. The Division further

asserts that the record does not contain false and prejudicial

information and is properly retained pursuant to statutory

authority.

First, we observe that the regulation falls within the scope

of the Division's "implementing and enforcing responsibility" and

therefore, its interpretation "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 are not,

however, "bound by the agency's legal opinions." Levine v. N.J.

Div. of Motor Vehicles, 338 N.J. Super. 28, 32 (App. Div. 2001).

15 A-2059-13T3
 We note further that the regulation does not grant caseworkers

a scope of discretion that is untethered to a defined legal

standard. There are two components to a finding of "not

established." First, the caseworker must determine the child is

not "an abused or neglected child as defined in N.J.S.A. 9:6-

8.21." N.J.A.C. 3A:10-7.3(c)(3). The second component is the

existence of "evidence [that] indicates that the child was harmed

or was placed at risk of harm." Ibid. Stated another way, the

"not established" determination requires a showing of some harm

or risk of harm that was not the result of "grossly or wantonly

negligent" conduct. L.A., supra, 217 N.J. at 332 (quoting G.S.,

supra, 157 N.J. at 178).

Defendants do not challenge the sufficiency of the legal

standard applicable to a finding that a child is or is not abused

or neglected, a determination at the very core of the mission of

the Division. Rather, they argue that it is the second component,

whether there is "some evidence" of harm or risk of harm that

renders the decision a "completely subjective" one by the

caseworker. We disagree.

16 A-2059-13T3
 Certainly, a finding that "some evidence" exists is not an

exacting standard.6 But, it is a standard and, contrary to

defendants' contentions, the case law provides adequate guidance

as to what constitutes "harm or the risk of harm." See, e.g.,

N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166,

179 (2015).

Defendants also argue that they should be entitled to a fact-

finding hearing to contest the finding of "not established." They

contend "the finding casts the target under suspicion, and triggers

a permanent retention of the record for future reliance and use

by the agency, no matter how false or flimsy the evidence." They

assert it "is fundamentally unfair" to allow the Division to rely

in future matters upon evidence contained in these records that

could not survive judicial scrutiny. However, as defendants

concede, they have the right of direct appeal, as they have

exercised here, to challenge the "not established" finding. See

N.J. Dep't of Children & Families, Inst'l Abuse Investigation Unit

v. D.B., 443 N.J. Super. 431, 442 (App. Div. 2015) ("When

administrative review is not available, such findings are a final

6
The Division has confirmed that the "evidence indicates"
standard used in N.J.A.C. 3A:10-7.3(c)(3) "is a lesser standard
than satisfaction of the statutory requirement in N.J.S.A. 9:6-
8.21." 45 N.J.R. 743, response to comment 45, (Apr. 1, 2013).

17 A-2059-13T3
decision appealable as of right to the Appellate Division."

(citing R. 2:2-3(a)(2)).

"[D]ue process is flexible and calls for such procedural

protections as the particular situation demands." In re an

Allegation of Physical Abuse Concerning R.P., 333 N.J. Super. 105,

113 (App. Div. 2000) (alteration in original) (quoting Morrissey

v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d

484, 494 (1972)). Even when a person has a constitutionally

protected interest, "it does not automatically follow that the

person must be afforded an opportunity for an adjudicatory

hearing." Ibid. And, "the 'due process' requirements which govern

the proceedings of an agency that makes binding legal

determinations directly affecting legal rights do not apply to

agency proceedings which are purely investigatory in nature." In

re Allegations of Physical Abuse at Blackacre Acad. on 2/10/93,

304 N.J. Super. 168, 182 (App. Div. 1997).

We have previously considered the issue of whether due process

requires that a party be permitted an administrative appeal from

a finding of "not established," or, under the prior regulation,

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

(citing our consideration in In re an Allegation of Physical Abuse

Concerning L.R., 321 N.J. Super. 444 (App. Div. 1999), of "not

substantiated" under N.J.A.C. 10:129-7.3(c) and concluding "our

18 A-2059-13T3
reasoning [was] also valid when considering 'not established'").

We have consistently concluded "[a] finding by [the Division] that

child abuse charges have not been substantiated, but that there

is some indication a child was harmed or placed at risk of harm,

is purely investigatory in nature, with none of the procedural

protections of an adjudicatory proceeding." R.P., supra, 333 N.J.

Super. at 117 (emphasis added) (citation omitted); see also D.B.,

supra, 443 N.J. Super. at 444; N.J. Dep't of Children & Families,

Inst'l Abuse Investigation Unit v. S.P., 402 N.J. Super. 255, 270

(App. Div. 2008).

The interest defendants claim gives rise to the right to

hearing is their interest against the Division's retention of the

records and possible use in the investigation of a future referral.

In D.B., we rejected the argument "that N.J.A.C. 10:129-8.1 [(now

at N.J.A.C. 3A:10-8.1)], which allows the [Division] to retain

unproven accusations forever is a violation of N.J.S.A. 9:6-

8.40a." D.B. supra, 443 N.J. Super. at 444. We observed, "the

interest of retaining information about alleged claims of abuse,

where some cause for concern is demonstrated, is within the mandate

given to the [Division] to protect children from abuse." Ibid.

Our decision in V.E., supra, 448 N.J. Super. at 402, finding

that a party against whom an "established" finding has been made

must have the right to an administrative hearing, does not compel

19 A-2059-13T3
a different conclusion. The defendant in V.E. argued that because

an "established" finding made her subject to the same adverse

consequences of disclosure suffered by persons after a

"substantiated" finding is made, due process required that she be

afforded the right to contest the determination in an adjudicatory

hearing. Id. at 390. We reasoned:

[A]n established finding is a conclusion abuse
or neglect occurred . . . . 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.

[Id. at 395-96 (citations omitted).]

We concluded that, on the record before us, "necessary

procedural safeguards must be employed to allow [the defendant]

the right to challenge disputed adjudicative facts." Id. at 401.

In reaching that conclusion, we explicitly distinguished D.B.,

observing that "significant ramifications of disclosure are

attached to an established finding." Id. at 397.

Defendants have not argued there are disclosure ramifications

to the "not established" finding that imperil any claimed right.

The administrative proceeding here was purely investigatory in

nature and the records are retained pursuant to N.J.S.A. 9:6-

8.10a. Even if, as defendants contend, there is erroneous

20 A-2059-13T3
information contained in those records, the circumstances here do

not provide a basis for an administrative appeal. Pursuant to

N.J.A.C. 3A:10-7.5(a)(6), only instances of past abuse or neglect

can be used as an aggravating factor to support a finding of abuse

or neglect in the future. Further, in the event that a finding

of abuse or neglect is made in the future, defendants may challenge

the factual basis for that finding on direct appeal. We therefore

conclude that defendants' challenges to N.J.A.C. 3A:10-7.3(c)(3)

and their argument that the investigation records should be

destroyed lack merit.

B.

Defendants also argue that the "not established" finding is

contrary to the evidence, settled law and sound public policy. We

disagree.

As defendants acknowledge, our review of the finding here is

limited:

[W]e are bound to uphold an agency's decision
"unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or
that it lacks fair support in the record."
However, we are "in no way bound by [an]
agency's interpretation of a statute or its
determination of a strictly legal issue."
"[I]f an agency's statutory interpretation is
contrary to the statutory language, or if the
agency's interpretation undermines the
Legislature's intent, no deference is
required."

21 A-2059-13T3
 [N.J. Div. of Youth & Family Servs. v. T.B.,
207 N.J. 294, 301-302 (2011) (second and third
alterations in original) (citations
omitted).]

Defendants argue that "slapping with an open hand" cannot

properly be the basis for the finding: "evidence indicates that

the child was harmed or placed at risk of harm." Defendants

contend "that a parent's reasonable use of corporal punishment

cannot be construed as abuse and will result in an unfounded

finding." They assert "the record is devoid of any credible

evidence of physical harm caused by defendants' alleged use of

excessive corporal punishment." (Emphasis added).

Defendants' argument assumes an invalid premise, i.e., that

the standard for a finding of abuse and neglect based upon

"excessive corporal punishment," N.J.S.A. 9:6-8.21(c)(4)(b),

applies. Indeed, there is no allegation or finding here that they

engaged in excessive corporal punishment.

As we have noted, corporal punishment constitutes "abuse"

under N.J.S.A. 9:6-8.21(c)(4)(b), only if it is excessive, meaning

the product of conduct that is "grossly or wantonly negligent."

L.A., supra, 217 N.J. at 332 (quoting G.S., supra, 157 N.J. at

178). The "not established" finding is available only when such

conduct has not been proven. N.J.A.C. 3A:10-7(c)(3). Therefore,

the argument that the evidence is insufficient because it fails

22 A-2059-13T3
to satisfy the standard for abuse based on excessive corporal

punishment is plainly lacking in merit.

Defendants also contend that the finding is unsupported by

the record because the children suffered no physical harm. This

argument also lacks merit because the finding can be based upon

the existence of some evidence that the children were subjected

to a "risk of harm." N.J.A.C. 3A:10-7.3(c)(3). By way of example,

in D.B., supra, 443 N.J. Super. at 435-37, we affirmed "not

established" findings against both a teacher's aide who struck an

autistic student although no observable marks were made and a

teacher who grabbed a student's arm and merely scratched the arm,

leaving only "a linear red mark."

It is undisputed that defendants resorted to slapping Adam

and David on a regular basis. David expressed fear of Chad and

said if granted one wish, it would be that Chad stop slapping him.

The boys stated Patricia did not intervene and frequently told

them they deserved the physical discipline meted out by Chad.

Chad's younger son, Cory, described Chad as having "anger issues"

and "yell[ing] a lot." We are satisfied there was sufficient

support in the record for the Division to determine that the

children: (1) were not abused or neglected as defined in N.J.S.A.

9:6-8.21(c), but (2) there is "evidence [that] indicates that the

23 A-2059-13T3
child was harmed or was placed at risk of harm" under N.J.A.C.

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

III.

In March 2015, the Division received a second referral, this

time from an employee at David's school. In response to a class

assignment to identify a time when the student was courageous and

stood up to someone, David said the following in front of his

class:

[I]t was my step-dad [Chad] he's a child
abuser, his [sic] mean, and does not care
about anyone but himself . . . . My brother
did something bad and [Chad] began kicking and
punching him in the corner and he was
bleeding . . . . I sprinted towards him; hit
him and told him to go to his room. That time
he was the one getting hit and he took the
blame and he got in trouble.

The referent speculated that "the incident sounded as though

it occurred in the past," but did not say whether David felt unsafe

or afraid at home. The referent stated David did not have "any

unusual marks or injuries" and that he preferred to be with his

father over his mother. The referent reported that David had

behavioral problems and faced "on-going turmoil," but that his

parents were "very receptive" to his issues and placed him in

therapy. The case was coded as a child welfare service, and was

forwarded to a local Division office for a child welfare

assessment. Ultimately, the Division "Recommend[ed] Termination

24 A-2059-13T3
of [Division] involvement."

On May 6, 2015, the Division sent Chad and Patricia letters

notifying them that the Division completed its "assessment as it

pertains to a report or referral made to our agency on March 19,

2014 [sic]," and declined to provide services at that time. In

addition, the Division provided a list of local "services that may

be beneficial to you and your family."

Patricia and Chad filed a notice of appeal from the Division's

May 6, 2015 letter. They do not claim the Division erred in

failing to provide services following a child welfare assessment.

Rather, they argue the Division treated the matter as a child

welfare check as opposed to an investigation to avoid appellate

review and assert the appeal was necessitated by the vagueness of

the letter sent by the Division. They contend the child welfare

assessment should be treated as an investigation for a child abuse

allegation and, as a result, this court should compel the Division

to make findings pursuant to N.J.A.C. 3A:10-7.3(c) and modify the

notification letter to (1) reflect those findings, (2) clarify the

nature of the Division's involvement, (3) state whether the records

would be retained and for how long, and (4) advise defendants of

their right to appeal.

The object of defendants' appeal appears to be a request that

this court substitute the procedure urged by them for the

25 A-2059-13T3
procedures established by the agency to implement its statutory

duties. This is not a proper subject of appeal. See In re Twp.

of Jackson, 350 N.J. Super. 369, 372 (App. Div. 2002) ("opinions

of an administrative agency on which no action is taken do not

constitute final agency action which may be appealed as of right"

(citing N.J. Civil Serv. Ass'n v. State, 88 N.J. 605, 612, (1982)).

It is a basic tenet of appellate review that "[o]nly a party

aggrieved by a judgment may appeal therefrom." Price v. Hudson

Heights Dev., LLC, 417 N.J. Super. 462, 466 (App. Div. 2011)

(quoting Howard Sav. Inst. v. Peep, 34 N.J. 494, 499 (1961)). The

determination that no services were necessary was not adverse to

defendants and they do not contend they were aggrieved by that

decision. Their criticism of the manner in which the Division

reached and communicated that determination is akin to an attempt

to appeal from the rationale underlying the Division's action,

which is not independently appealable. See Do-Wop Corp. v. City

of Rahway, 168 N.J. 191, 199 (2001) (recognizing a party does not

appeal from "reasons given for the ultimate conclusion.").

Accordingly, defendants' appeal from the May 2015 letter is

dismissed.

In sum, we affirm the "not established" finding that is the

subject of the appeal in Docket No. A-2059-13 and dismiss the

appeal in Docket No. A-4589-14.

26 A-2059-13T3