S.C. VS. NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES (DEPARTMENT OF CHILDREN AND FAMILIES) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4792-15T3

S.C.,

Appellant,

v.

NEW JERSEY DEPARTMENT OF
CHILDREN AND FAMILIES,

Respondent.
_______________________________

Argued January 16, 2018 - Decided August 31, 2018

Before Judges Messano, Accurso and Vernoia.
(Judge Messano concurring).

On appeal from New Jersey Department of
Children and Families, Division of Child
Protection and Permanency, Case No.
16739248.

Victoria D. Miranda argued the cause for
appellant (Williams Law Group, LLC,
attorneys; Allison C. Williams, of counsel
and on the brief; Elizabeth D. Burke, on the
brief).

Julie B. Colonna, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Julie B. Colonna, on the brief).

PER CURIAM
 Luke,1 eight years old and classified as emotionally

disturbed, refused to make a Mother's Day card at school,

claiming he hated his mother. When queried as to why, Luke said

his mother hits him with an open hand and a spatula. He claimed

she last hit him two days before because he would not get in the

shower.

Upon receiving that report from the counselor assigned to

work with Luke, the principal called the Division of Child

Protection and Permanency. An investigator responded to the

school and learned that Luke was having "a terrible day,"

coloring on his desk top and generally "distraught." The

counselor advised that was atypical; Luke had had behavioral

issues in the past, in kindergarten he ripped down a shelf

holding a TV monitor, but now in second grade he was doing much

better.

The principal knew Luke and his two sisters, triplets, and

was surprised by his revelation. She said she hated having to

call the Division about this family as she had no other concerns

about Luke's parents.2 Both were very involved in school

1
Luke is a pseudonym designed to protect the child's identity.
2
The school was required to report Luke's disclosure to the
Division. See N.J.S.A. 9:6-8.10.

2 A-4792-15T3
activities, attending every child study team meeting and

responding immediately to calls or email.

When the investigator spoke to Luke, he told her he lived

with his parents, his two sisters and their dog, Heidi. He said

his mother counts to three a lot. When the investigator asked

Luke what happens after she gets to three, he said, "[i]t's

inappropriate." When asked if he could say what happens, Luke

walked over and whispered, "mom smacks me." He could not,

however, say the last time it happened. When asked whether it

hurt, he said it "kind of hurts." He also laughed and said he

thinks it funny. In the initial report to the Division, the

principal recounted that Luke said that once when he was hit, he

said it did not hurt, so he got hit again.

Luke told the investigator his father also smacks him with

an open hand. He denied ever having marks or bruises afterward.

When the investigator asked Luke if his parents ever used

anything other than their hands to hit him, he said his mother

sometimes used a spatula. Asked where, he said his mother "has

hit him on his butt with the spatula." He again, however, could

not say when that had last occurred. Luke denied that it hurt,

but thought "his butt was a little red" afterward. He denied it

hurt the next morning. He was not fearful of either of his

parents.

3 A-4792-15T3
 Luke told the investigator "his parents have hit him on the

leg and butt." He denied ever being hit in the face. He also

denied ever having "any bumps, bruises, or cuts from when his

parents hit him." He volunteered that he once got a bump on his

head "from when he was trying to put on his underwear while

walking down the stairs." The investigator told him that

"sounded dangerous" and "encouraged [Luke] to get dressed in one

spot."

While at the school, the investigator spoke to each of

Luke's sisters individually, one of whom has a specific learning

disability. Like their brother, each reported living with her

parents, siblings and Heidi, whom one reported had to go to the

vet that morning because she hurt her leg jumping over a gate.

Both girls reported their parents sometimes hitting them with an

open hand but denied them leaving marks or bruises. Both denied

ever being hit with a spatula. One of the girls reported

arguments among herself, her brother and her sister "over who

takes a shower last." When asked how she gets along with her

siblings, that same child replied "not that much." She

complained that her sister "ruins [her] stuff" and that her

brother "says bad words at home." She claimed neither her

brother nor her sister listened. Neither girl expressed any

fear of her parents.

4 A-4792-15T3
 The investigator made an unannounced visit to the

children's home that evening. Their father was reluctant to

invite her in. When she explained what had been reported to the

Division, he responded "it is legal to hit children."

The investigator first interviewed the children's mother,

defendant S.C. The investigator learned both parents worked

full-time outside the home, and that the triplets attended an

afterschool child care program at their school until six p.m.

S.C. admitted that both she and her husband hit the

children, occasionally, with an open hand. She told the

investigator the triplets were always playing or fighting, "and

it gets challenging at times." She explained they were getting

too old for timeout, and she was attempting to deploy a new

strategy of denying them privileges. She explained the strategy

was not working because the children "do not have a good concept

of time." So threatening them on Monday with withholding their

favorite Friday night pizza and a movie had no moderating effect

on their behavior.

The investigator inquired as to the children's special

needs. S.C. advised Luke was classified as Emotionally

Disturbed in kindergarten because of his "big tantrums," which

she attributed to his poor adjustment to kindergarten from

daycare. She advised they were "hoping to get his

5 A-4792-15T3
classification changed." She mentioned no other problems with

Luke.

S.C. denied ever hitting the children with a spatula, but

admitted "she smacks the spatula on the counter to get their

attention." She said she will also whistle. She told the

investigator "that she threatens the children" but "does not

follow through." The investigator discouraged the use of

physical discipline, as it teaches the children "that hitting

solves problems." She advised S.C. that hitting the children

"with objects was inappropriate," which S.C. again denied doing,

and counselled her "that she may not be in full control of how

much force she is using" if she hits the children when she is

upset, thus putting them at risk of harm. S.C. replied that

hitting did not seem to be working, and she would stick to

sending the children to their rooms and denying them privileges.

When the investigator interviewed the children's father, he

was most interested in knowing who reported the family to the

Division. He admitted he occasionally spanks the children

"lightly." He denied ever using anything other than his hand to

do so. He also denied ever seeing his wife use anything other

than her hand to hit the children, but admitting seeing her "use

the spatula to hit the counter to get the children's attention."

6 A-4792-15T3
 After recording her notes of those interviews, which we

have quoted here, the investigator also recorded her impressions

that the children appeared clean and well-cared-for and their

home likewise. Her collateral investigation, a review of police

and criminal justice records and contacting the children's

pediatrician, revealed no adverse information of any kind. She

concluded the children were safe in their parents' care and the

allegations "not established." The case was closed at intake.

Three weeks after interviewing school officials and S.C.'s

family, the Division wrote to S.C. of the results of its

investigation into "an allegation that [her three children were]

abused." The letter was devoid of any discussion of the facts,

including the specifics of the allegations. The letter stated

the Division "conducted its required investigation and

determined that the allegation was Not Established." The letter

further explained "the Division enters a finding of 'Not

Established' when some evidence indicates that a child was

harmed or placed at some risk of harm, but there is not a

preponderance of evidence that the child has been abused or

neglected per N.J.S.A. 9:6-8.21."3

3
The letter states in its entirety:

7 A-4792-15T3
 S.C. appeals, claiming the Division's "finding of Not

Established should be deemed arbitrary, capricious and

unreasonable because the record is insufficient to find the

child was harmed" and that her due process rights were violated

by her inability to challenge the Division's "investigatory

New Jersey Law, as set forth in
N.J.S.A. 9:6-8.11, requires the Department
of Children and Families (DCF) Division of
Child Protection and Permanency (CP&P) to
investigate all allegations of child abuse
and neglect. On May 4, 2016, the Division's
Bergen Central Local Office received an
allegation that [Luke and his two sisters
were] abused.

CP&P conducted its required
investigation and determined that the
allegation was Not Established. A record of
the incident will be maintained in CP&P
files. Current law provides that this
information may not be disclosed by the
Division except as permitted by N.J.S.A.
9:6-8.10a. A finding of Not Established is
not subject to an administrative appeal.

Pursuant to N.J.A.C. 10:129-7.3(c)(3)
[now at N.J.A.C. 3A:10-7.3(c)(3)], the
Division enters a finding of "Not
Established" when some evidence indicates
that a child was harmed or placed at some
risk of harm, but there is not a
preponderance of evidence that the child has
been abused or neglected per N.J.S.A. 9:6-
8.21.

The Division will not be providing
further services to [Luke and his two
sisters].

8 A-4792-15T3
finding through the administrative process." We reject those

arguments and affirm.

We first dispense with S.C.'s argument that she was denied

due process based on her inability to challenge the Division's

investigatory finding in an administrative hearing instead of in

this court. N.J.A.C. 3A:5-4.3(a)(2) provides a right to an

administrative hearing only for a finding that abuse or neglect

allegations have been "substantiated" as defined in N.J.A.C.

3A:10-7.3(c)(1). There is no right to a hearing if such

allegations are only determined to have been "not established"

or "unfounded."4 N.J.A.C. 3A:5-4.3(a)(2); see also Dep't of

Children & Families v. D.B., 443 N.J. Super. 431, 442 (App. Div.

2015) (rejecting any due process right to a hearing to challenge

allegations deemed "not established").

As we explained in D.B., "[a] finding by [the Department]

that child abuse charges have not been substantiated, but that

4
Although N.J.A.C. 3A:5-4.3(a)(2) also provides no right to a
hearing in cases in which allegations of abuse or neglect are
deemed to have been "established," we recently held such a
finding is subject to challenge in an administrative hearing.
See Div. of Child Prot. & Permanency v. V.E., 448 N.J. Super.
374, 402 (App. Div. 2017) ("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.").

9 A-4792-15T3
there is some indication a child was harmed or placed at risk of

harm, is purely investigatory in nature." 443 N.J. Super. at

443 (first alteration added; second alteration in original)

(quoting In re R.P., 333 N.J. Super. 105, 117 (App. Div. 2000))

(considering a finding that allegations of abuse or neglect were

"not substantiated" under the prior framework of N.J.A.C.

10:129-7.3(c)). "There is a fundamental distinction between

investigatory and adjudicatory findings. An investigator simply

interviews witnesses and examines other available evidence,

reviews and analyzes this information and makes a recommendation

as to whether any action should be taken against the subject of

the investigation." R.P., 333 N.J. Super. at 116-17. There is

no definitive finding as to the truth of the allegations by a

disinterested, impartial third party as there would be an

adjudicatory proceeding. Ibid.

Significantly, allegations of abuse deemed "not

established" by the Division are not made public, the accused's

name is not included in the Central Registry and the finding is

not disclosed in connection with a Child Abuse Record

Information (CARI) check. See N.J.A.C. 3A:10-7.7; D.B., 443

N.J. Super. at 439, 443; cf. Div. of Child Prot. & Permanency v.

V.E., 448 N.J. Super. 374, 380, 402 (App. Div. 2017)

("established" finding is a conclusion that abuse or neglect

10 A-4792-15T3
occurred authorizing disclosure). That the Division retains the

records of an incident deemed "not established," N.J.A.C. 3A:10-

8.1(b), is not sufficient to entitle S.C. to an adjudicatory

hearing. See V.E., 448 N.J. Super. at 380, 402 (distinguishing

an "established" finding of child abuse or neglect under

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

9:6-8.10a(b), as requiring plenary administrative review).

"[T]he 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." D.B., 443 N.J. Super. at 444. As we have

previously explained, there is a "lesser due process right in

regard to information kept for the use of the agency and

entities involved in the protection of children." Ibid. An

investigatory finding that abuse or neglect was "not

established," the record of which is not disseminated in

response to a CARI check, simply does not impugn S.C.'s

reputational or privacy interests to an extent that would

trigger the need for an adjudicatory hearing. See V.E., 448

N.J. Super. at 395 (distinguishing the "broad impact

accompanying an established finding").

We turn to consider S.C.'s claim that the Division's

finding that the report of Luke's abuse was "not established" as

11 A-4792-15T3
opposed to "unfounded" was arbitrary or capricious. See N.J.

Dep't of Children & Families v. R.R., 454 N.J. Super. 37, 43

(App. Div. 2018). In doing so, we remain mindful of the Supreme

Court's admonition that we are to "defer to an agency's

expertise and superior knowledge of a particular field." Dep't

of Children & Families, Div. of Youth & Family Servs. v. T.B.,

207 N.J. 294, 301 (2011) (quoting Greenwood v. State Police

Training Ctr., 127 N.J. 500, 513 (1992)). Here, that would be

the Division's superior knowledge and expertise in investigating

and assessing an eight-year-old's allegation that one of his

parents has engaged in excessive corporal punishment.

Although not capable of precise definition, "abuse of

discretion" "arises when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis.'" Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez

v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265

(7th Cir. 1985)). As the Court has put it, "a functional

approach to abuse of discretion examines whether there are good

reasons for an appellate court to defer to the particular

decision at issue." Ibid. In exercising our review function,

we serve "as a guardian" of the statute we are applying "to

insure that its mandate is fulfilled." Crema v. N.J. Dep't of

12 A-4792-15T3
Envtl. Prot., 192 N.J. Super. 505, 511 (App. Div. 1984) (quoting

S. Brunswick v. N.J. Tpk. Auth., 129 N.J. Super. 126, 137 (App.

Div. 1974)).

"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." N.J.A.C. 3A:10-7.3(c)(3). Only if "the evidence

indicates that a child was not harmed or placed at risk of

harm," is the allegation deemed "unfounded." N.J.A.C. 3A:10-

7.3(c)(4). As the Division has explained, "[t]he critical

distinction between findings of not established and unfounded is

that not established findings are based on some evidence, though

not necessarily a preponderance of evidence, that a child was

harmed or placed at risk of harm." 45 N.J.R. 738(a) (April 1,

2013) (response to Comment 86).

There is no dispute that there was not a preponderance of

evidence here that S.C. abused her son Luke. The only issue is

whether the Division abused its discretion in determining there

was "some evidence . . . that [he] was harmed or placed at risk

13 A-4792-15T3
of harm" by excessive corporal punishment under N.J.S.A. 9:6-

8.21.5

New Jersey law does not bar the corporal punishment of

children by their parents. See Dep't of Children & Families,

Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510

(App. Div. 2010). It is only the unreasonable infliction of

excessive corporal punishment that Title 9 prohibits. See

N.J.S.A. 9:6-8.21(c)(4)(b). "The general proposition is that a

parent may inflict moderate correction such as is reasonable

under the circumstances of a case." K.A., 413 N.J. Super. at

5
The statute provides in pertinent part that an abused or
neglected child means a child under the age of 18

whose parent or guardian . . . inflicts or
allows to be inflicted upon such child
physical injury by other than accidental
means which causes or creates a substantial
risk of death, or serious or protracted
disfigurement, or protracted impairment of
physical or emotional health or protracted
loss or impairment of the function of any
bodily organ; . . . or a child whose
physical mental or emotional condition has
been impaired or is in imminent danger of
becoming impaired [by a parent] . . . by
unreasonably inflicting or allowing to be
inflicted harm, or substantial risk thereof,
including the infliction of excessive
corporal punishment. . . .

[Dep't of Children & Families, Div. of Youth
& Family Servs. v. K.A., 413 N.J. Super.
504, 510 (App. Div. 2010) (quoting N.J.S.A.
9:6-8.21(c)(1),(4)(b)).]

14 A-4792-15T3
510 (quoting State v. T.C., 347 N.J. Super. 219, 239-40 (App.

Div. 2002)).

In the absence of per se excessive punishment, that is, the

infliction of a fracture, or serious laceration, or where

medical intervention is necessary, whether corporal punishment

is excessive is fact-sensitive and dependent on the

circumstances. K.A., 413 N.J. Super. at 511. It is fair to

say, however, that the use of an implement to strike a young

child, particularly when the incident was not an isolated one,

has resulted in our upholding the Division's finding of

excessive corporal punishment. See, e.g., N.J. Div. of Child

Prot. & Permanency v. J.L.G., 450 N.J. Super. 113, 118 (App.

Div. 2015) (beating a seven-year-old with fists and a metal

spatula), aff'd o.b., 229 N.J. 113 (2017); Dep't of Children &

Families, N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J.

Super. 472, 476 (App. Div. 2010) (hitting a five-year-old with a

paddle); N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J.

Super. 322, 340 (App. Div. 2007) (hitting a six-year-old with a

belt).

Having reviewed this record, we cannot conclude the

Division's investigatory finding of "some evidence" indicating

that S.C. placed Luke at risk of harm from excessive corporal

punishment was arbitrary or capricious or lacked fair support in

15 A-4792-15T3
the record. See State v. S.N., 231 N.J. 497, 515 (2018)

(explaining the abuse of discretion standard).

Luke told school officials his mother hit him with a

spatula as well as with an open hand. He repeated those

allegations the following day to the Division investigator.

Luke's father, sisters and even his mother corroborated that she

struck Luke with an open hand on "his butt and legs" on more

than one occasion. No one, however, corroborated Luke's more

serious allegation that his mother used a spatula to strike him

as well.

Luke's statements would constitute admissible evidence in a

Title 9 proceeding, although because his allegation of having

been hit with a spatula was uncorroborated, it could not,

standing alone, support a finding of abuse or neglect. See

N.J.S.A. 9:6-8.46(a)(4) ("[P]revious statements made by the

child relating to any allegations of abuse or neglect [are]

admissible in evidence; provided, however, that no such

statement, if uncorroborated, shall be sufficient to make a fact

finding of abuse or neglect."). In her brief, S.C. notes that

Luke is emotionally disturbed, and asserts that "a finding of

anything other than 'Unfounded' would place all parents falsely

accused by the uncorroborated statements of an Emotionally

16 A-4792-15T3
Disturbed child at risk of being found to have harmed their

children."

Leaving aside the hyperbole, neither school officials nor

Luke's family suggested Luke was prone to making things up, such

that one could dismiss his allegations out of hand. The

investigator explored Luke's classification and his behavioral

issues. Both the school and Luke's mother reported he had

significant behavioral problems in kindergarten but both

assessed his behavior as now much improved. Indeed, his mother

reported she was seeking to have Luke's classification changed.

Viewing the information gathered might reasonably lead a

Division investigator to conclude there was "some evidence,"

certainly less than a preponderance, indicating that S.C. had

placed Luke at risk of harm, leading to a "not established"

finding. S.C., although denying she ever used a spatula to hit

Luke, acknowledged she hit Luke and his sisters with an open

hand. She also admitted to slapping the spatula on her kitchen

counter to get the triplets' attention and "threatening them"

but "not following through."

S.C. complained her three second-graders were always

"playing or fighting" and admitted she found their behavior

"challenging at times." She expressed her frustration at the

ineffectiveness of timeouts and the withholding of privileges in

17 A-4792-15T3
moderating their behavior and conceded hitting them did not

appear to be working either. Luke's principal reported that

Luke claimed that once when he got hit, he said it did not hurt,

so he got hit again. Taken together, those facts provide "some

evidence" indicating that S.C. hit the children, even without a

spatula, when she was upset with their behavior, leading to the

possibility that she could misgauge how much force she was using

and put them at risk of harm.

We emphasize that a "not established" finding of "some

evidence" indicating that a child was "harmed or was placed at

risk of harm" is a low standard, and represents only an

investigatory finding without significant adverse consequences

to a parent.6 As we recently noted, "placing a child 'at risk of

harm' may certainly involve a lesser risk than the 'substantial

6
S.C.'s contention that the "not established" finding may be
used as an aggravating factor under N.J.A.C. 3A:10-7.5(a)(6) in
determining whether a future allegation of abuse or neglect
should be substantiated or established is incorrect. N.J.A.C.
3A:10-7.5(a)(6) permits only "evidence suggesting a repetition
or pattern of abuse or neglect, including multiple instances in
which abuse or neglect was substantiated or established," to be
used as an aggravating factor.

As the Court has reminded, however, even when the consequences
to a parent are significant, the conduct must be "evaluated
through the lens of the statutory standard as interpreted and
applied by the Court, rather than through the lens of the
consequences of a finding of neglect, specifically, enrollment
in the Central Registry." Dep't of Children & Families, Div. of
Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 195 (2015).

18 A-4792-15T3
risk of harm' or 'imminent danger' required to establish abuse

or neglect under" N.J.S.A. 9:6-8.21(c). R.R., 454 N.J. Super.

at 42. Indeed, the Division has explained it employs a "not

established" finding "when a preponderance of the evidence

indicates that the statutory standard has not been met." 45

N.J.R. 738(a) (April 1, 2013) (response to comment 45).

Mindful that "Title 9's main focus is not the 'culpability

of parental conduct' but rather 'the protection of children,'"

Dep't of Children & Families, Div. of Child Prot. & Permanency

v. E.D.-O., 223 N.J. 166, 178 (2015) (quoting G.S. v. Dep't of

Human Servs., 157 N.J. 161, 177 (1999)), we cannot conclude the

investigator's finding that the report of Luke's abuse was "not

established" as opposed to "unfounded," in other words, that

there was some evidence indicating the boy was placed at risk of

harm as opposed to no evidence, lacked a rational explanation,

departed from established policies, or rested on an

impermissible basis.

To the contrary, the record of the investigation reveals a

conscientious investigator, thoroughly pursuing all relevant

information, with no discernible bias, who established an easy

rapport with these three eight-year-olds. S.C. points to

nothing left undone, and our review finds the investigator was

quick to both record and take into account all information,

19 A-4792-15T3
including information supporting a conclusion that Luke and his

sisters were safe and well-cared for by their parents and had

been placed at no risk of harm.

The competence and completeness of the investigation in

this case is what distinguishes it from our recent decision in

R.R.,7 in which we reversed a not established finding by the

Division and directed the allegation be deemed unfounded because

the Division investigator "failed to consider essential

documents and relevant facts," resulting in a one-sided

investigation and a finding lacking fair support in "the record

the Division did compile." R.R., 454 N.J. Super. at 46.

The Legislature has charged the Division with the statutory

mission of the protection of the health and welfare of the

children of this State. N.E. for J.V. v. State Dep't of

Children & Families, Div. of Youth & Family Servs., 449 N.J.

Super. 379, 398 (App. Div. 2017). The child-welfare laws it

administers "strike a balance between two competing public

7
Although we endorse both the reasoning and the result in R.R.,
we disagree with the dictum that a "not established" finding "is
not what it seems" and " still permanently tars a parent with a
finding that there was something to the allegation." R.R., 454
N.J. Super at 39. We fail to see how an investigatory finding
that abuse and neglect is "not established," which is not made
public or otherwise disseminated, "permanently tars" anyone with
anything. See Middletown Tp. PBA Local 124 v. Twp. of
Middletown, 193 N.J. 1, 16 (2007) (noting "the dangers inherent
in dictum").

20 A-4792-15T3
policy interests: a parent's constitutionally protected right

'to raise a child and maintain a relationship with that child,

without undue interference by the state,' and 'the State's

parens patriae responsibility to protect the welfare of

children.'" Ibid. (quoting N.J. Div. of Youth & Family Servs.

v. A.L., 213 N.J. 1, 18 (2013)). As we can find no flaw in the

investigation done here, and thus no dereliction in the

Division's discharge of its statutory responsibilities,

reversing the Division's investigatory finding and directing

Luke's allegation be treated as unfounded instead of not

established would be merely substituting our judgment for the

Division's, a result plainly not permitted us. See In re Pub.

Serv. Elec. & Gas Co.'s Rate Unbundling, 167 N.J. 377, 384

(2001) (noting that "when reviewing an administrative agency's

factual findings, our function is not to substitute our judgment

for that of the agency, particularly when that judgment reflects

agency expertise").

Affirmed.

21 A-4792-15T3
____________________________________

MESSANO, P.J.A.D., concurring.

I agree that denying S.C. an administrative hearing at which

to challenge the "not established" finding did not violate her due

process rights. Ante at ___ (slip op. at 9-11); D.B., 443 N.J.

Super. at 442. I also agree that given our highly deferential

standard of review of agency action, ante at ___ (slip op. at 12),

the Division's decision was not "arbitrary, capricious or

unreasonable," nor did it lack "fair support in the record." R.R.,

454 N.J. Super. at 43 (citation omitted).

Pursuant to N.J.A.C. 3A:10-7.3(c)(3), the Division needed

only to establish that S.C.'s conduct "placed [the children] at

risk of harm," not that the children were abused or neglected,

i.e., that they faced a "'substantial risk of harm' or 'imminent

danger' required to establish abuse or neglect under [N.J.S.A.

9:6-8.21(c)]." R.R., 454 N.J. Super. at 42. In adopting the

regulations, the Division made clear that a "not established"

finding — as opposed to an "unfounded" finding — is "based on some

evidence, though not necessarily a preponderance of evidence, that

the child was harmed or placed at risk of harm." Id. at 40-41

(emphasis added) (quoting 45 N.J.R. 738(a) (response to Comment

45)). Unlike the facts in R.R., we have amply documented the

thorough investigation conducted by the Division in this case,
ante at ___ (slip op. at 2-7). Therefore, although it is tempting

to substitute my judgment for that of the agency, "[d]eference

controls." In re Herrmann, 192 N.J. 19, 28 (2007). I write

separately to express two concerns.

First, I am only convinced there is "some evidence" to support

the finding in this case because of our own extensive review of

the record, which documents the Division's investigation and its

results. The letter actually served on S.C. by the Division did

nothing but parrot the regulatory language and advise S.C. of the

consequences of the finding. Ante at ___ (slip op. at 7 n.3). It

did not state, for example, what facts disclosed by the

investigation established "some evidence" that S.C. placed the

children at risk of harm. For example, did the investigator

determine that Luke's claim that his mother hit him with a spatula

was credible? Was S.C.'s admission that she sometimes spanked and

threatened the children sufficient to conclude that she exposed

the children to the risk of harm? In short, the letter fails to

state, even in conclusory terms, what evidence supported the

finding.

"Judicial review of administrative agency action is a

constitutional right." Silviera-Francisco v. Bd. of Educ. of City

of Elizabeth, 224 N.J. 126, 136 (2016) (citing N.J. Const. art.

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VI, § 5, ¶ 4). The lack of any factual findings in the letter

sent to S.C. inhibits appellate review, to which S.C. and others

against whom findings of abuse and neglect are "not substantiated"

are entitled to as of right. D.B., 443 N.J. Super. at 442 (citing

R. 2:2-3(a)(2)). The Appellate Division should not be required

to comb through the record to determine whether it "contains

substantial evidence to support" the Division's determination.

See Lavezzi v. State, 219 N.J. 163, 171-72 (2014) (explaining the

standards of appellate review as to whether agency action is

arbitrary, capricious or unreasonable) (quoting In re Stallworth,

208 N.J. 182, 194 (2011)). When an agency's decision is not

accompanied by the necessary findings of fact, the usual remedy

is to remand the matter to the agency to correct the deficiency.

DiMaria v. Bd. of Trs., Pub. Employees' Ret. Sys., 225 N.J. Super.

341, 347 (App. Div. 1988).

Although I concur in this case without the necessity of a

remand, the Division should hereafter be on notice that merely

parroting regulatory language without specific findings in support

of the determination is unacceptable. Such continued practice

will undoubtedly result in remands from this court and the

additional drain on precious agency resources.

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 My concern about the perfunctory nature of the letter segues

into the second reason why I write separately. When the Division

first proposed the expanded "four-tier framework" to report

outcomes of its child abuse investigations, R.R., 455 N.J. Super.

at 40, it did so with the expressed purpose of "allow[ing] the

investigative findings and records to better reflect the

circumstances of an investigation." 44 N.J.R. 357(a) (Feb. 21,

2012). According to the Division, "add[ing] two intermediary

investigative findings, 'established' and 'not established,' . .

. would allow child protective investigators more latitude to

accurately reflect the nature of their conclusions regarding

allegations of abuse or neglect." Ibid. The letter in this case

hardly reflected "the circumstances of the investigation," nor did

it "reflect the nature" of the investigators' "conclusions" about

S.C.'s conduct.

Importantly, like "substantiated" and the newly-adopted

"established" findings, both of which require a finding by a

preponderance of evidence that the child was abused or neglected,

N.J.A.C. 3A:5-4.3(a)(1) and (2), the records of "not established"

findings, which by definition are determinations that there was

no abuse or neglect, N.J.A.C. 3A:5-4.3(d), are not subject to

expunction. N.J.S.A. 9:6-8.40a(a); N.J.A.C. 3A:10-8.1. The

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Division explained the reason for this when it first proposed the

regulatory change: "[T]he inclusion of the 'not established'

finding will allow the Division to retain records where a child

is found to have been harmed or placed at risk of harm. This will

allow the Division to have a better and more comprehensive

understanding of a family should additional referrals be received

by the Division in the future." 44 N.J.R. 357(a) (Feb. 21, 2012).

The Division responded to comments objecting to prohibiting

expunction of "not established" records when it adopted the four-

tier framework:

The [Division] declines to change the rule.
N.J.S.A. 9:6-8.40a authorizes the [Division]
to define "unfounded" by regulation. The
critical distinction between findings of not
established and unfounded is that not
established findings are based on some
evidence, though not necessarily a
preponderance of evidence, that a child was
harmed or placed at risk of harm. Because
the investigation of future allegations must
include consideration of past incidents in
which an involved child was harmed or placed
at risk of harm, the critical information
contained in records of not established
cases must be maintained.

[45 N.J.R. 738(a) (Apr. 1, 2013) (response
to comment 86) (emphasis added).]

Thus, I agree with the panel in R.R. that a not established finding

"still permanently tars a parent with a finding that there was

something to the allegation." 454 N.J. Super. at 39.

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 As already noted, because a "not established" finding is

purely investigative in nature and is not made public through

inclusion of the perpetrator's name on the Central Registry or

during a CARI check, I agree that S.C.'s due process rights were

not violated. D.B., 443 N.J. Super. at 443. However, the

permanent retention of "not established" findings means that

records continue to be subject to disclosure in a host of

situations. See N.J.S.A. 9:6-8.10a(b). For example, since they

are not subject to expungement, the Division's "records,"

"information," and "reports of findings" of a "not established"

determination would be accessible upon written request to "[a]ny

person or entity mandated by statute to consider child abuse or

neglect information when conducting a background check or

employment-related screening of an individual employed by or

seeking employment with an agency or organization providing

services to children." N.J.S.A. 9:6-8.10a(b)(13).

Relying on prior precedent, in D.B., we remanded the matter

for the Division to provide more accurate letters it was required

by statute to disseminate to others that stated

after the conflicting witness statements are
presented, that no determination as to the
accuracy of the statements has been made. If
a statement that there were allegations that
a child was harmed or put at risk of harm is
included within the "Investigative

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 Observations" section of the letters, it
must be followed by the language that "there
has been no determination of the accuracy of
[the] allegations."

[443 N.J. Super. at 446 (quoting In re R.P.,
333 N.J. Super. 105, 117 (App. Div. 2000)).]

Here, there is no required dissemination to third parties of

the Division's not established finding regarding S.C., and,

therefore, I concur without the need to remand for letters that

are more specific. Nevertheless, since the records of "not

established" referrals live on forever within the Division, and

those records are accessible in many circumstances, it is incumbent

that the Division accurately express its findings and conclusions

in sufficient detail. Only then will it achieve its stated

purpose, i.e., "to accurately reflect the nature of [its]

conclusions regarding allegations of abuse or neglect," 44 N.J.R.

357(a) (Feb. 21, 2012) and provide a "better and more comprehensive

understanding of a family should additional

referrals be received by the Division in the future."1 Ibid.

1
In D.B., 443 N.J. Super. at 444-45, the panel rejected the
appellants' argument that the Division exceeded its "regulatory
authority." While the exact nature of that challenge is unclear
from our colleagues' decision, because this appeal does not
raise a facial challenge to the four-tier regulatory scheme, I
choose not to consider whether creating four categories of

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 I concur in the judgment.

findings, in conjunction with the ban on expunction for all but
"unfounded" findings, exceeds the Division's enabling
legislation.

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