DEPARTMENT OF CHILDREN AND FAMILIES, ETC. VS. S.M. (DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY)(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NOT FOR PUBLICATION WITHOUT THE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-3016-15T1

DEPARTMENT OF CHILDREN AND
FAMILIES, DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Petitioner-Respondent,

v.

S.M.,

Respondent-Appellant.

___________________________

Submitted June 1, 2017 – Decided July 24, 2017

Before Judges Gooden Brown and Farrington.

On appeal from the Department of Children and
Families, Division of Child Protection and
Permanency, DCF Case No. 16250240.

Christian A. Pemberton, attorney for
appellant.

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

PER CURIAM
 Appellant S.M.1 appeals from the February 1, 2016 final agency

decision of the Public Defender's Conflict Investigation Unit

(PDCIU), acting as an agent for the Department of Children and

Families (Department), finding that an allegation of abuse and

neglect against S.M. was "not established" pursuant to N.J.A.C.

10:129-7.3(c)2 and N.J.S.A. 9:6-8.21. S.M. argues that the

evidence adduced through the investigation fails to meet the

standard for "not established" but rather shows that the allegation

was "unfounded." We disagree and affirm.

I.

S.M., a caseworker with the Division of Child Protection and

Permanency (Division), a Division of the Department, has been

employed by the Division for ten years. From September 26 to

November 23, 2015, she was assigned to supervise the visitation

of H.B. with her five-year-old adopted son, M.B., who was removed

from H.B.'s care along with other foster and adoptive children and

placed in the Division's custody in the wake of threats of gun

violence by H.B. and pending child endangerment criminal charges

against H.B.

1
We use initials to protect the privacy of those involved and to
preserve the confidentiality of this matter.
2
N.J.A.C. 10:129-7.3 was recodified as N.J.A.C. 3A:10-7.3
effective January 3, 2017. See 49 N.J.R. 98(a) (Jan. 3, 2017).
Where applicable, we cite the recodified regulations.

2 A-3016-15T1
 H.B. was entitled to supervised visits for two hours, twice

a week, at the Division office. Because the visits were classified

as "high alert visits," S.M. was required to see and hear the

parties at all times and follow other safety precautions, which

included random "walk-throughs" of the visitation area by the

security guard on duty, security screening upon entry by the guard

of all family members, and staff carrying a buzzer to alert the

guard if necessary. S.M. described the visitation protocol as

follows:

[H.B.] and her family sat in the first
visiting room, Room #1, and [S.M.] sat outside
the visiting room on a chair outside the door,
with the door open. The security guard on
duty made rounds, but his desk is outside a
closed door at the end of that hallway,
closest to room #1. . . . [W]hen [M.B.]
need[ed] to use the rest room, [S.M.] escorted
[him] and his mother out into the lobby area
where the guard was seated and waited inside
the bathroom for them to finish. . . . [I]f
[S.M.] needed to use the bathroom, and she
[had] no relief, she would walk [M.B.] out
into the lobby area where the security guard
was seated, and had him sit in the lobby while
being monitored by the guard until she [was]
finished.

On November 25, 2015, the Division received an e-mail referral

from a self-proclaimed "former journalist" and "government

activist" alleging "child endangerment" at a Division office based

on S.M. leaving the parties unsupervised during their November 16

and 23, 2015 visits. To support the allegations, the referent

3 A-3016-15T1
attached two photos with captions purportedly posted on Facebook

by H.B. Both photos depicted an image of an empty chair. One

caption read "Last night we had our visit at the dyfs office.

[S.M.] left her chair empty many times and [at] one point fell

asleep! I was about to take a picture and she woke up." The

other caption read "We are a super huge threat so we must see

[M.B.] at the dyfs office. All workers must wear emergency buzzer.

Check this out, guard no longer takes apart my bags to search and

oh do you see the worker?????"

As a result of the referral, pursuant to N.J.S.A. 9:6-8.11,

an investigation by the PDCIU was conducted.3 In the course of

the investigation, interviews with H.B., her paramour and her

adult daughter were conducted during which they confirmed

observing S.M. sleeping, talking on the phone and walking away

from her post during visits. Regarding the November 16 visit,

although H.B. could not recall exactly how long S.M. was gone,

H.B. provided a photo from her phone of S.M.'s empty chair to

document her absence at 6:20 p.m. Regarding the November 23 visit,

H.B. provided photos taken at 5:18 p.m., 5:43 p.m., and 6:50 p.m.,

3
The PDCIU acts as an agent of the Division to investigate
allegations of abuse or neglect "in situations involving
[Division] employees and those persons with whom they have a
personal or professional relationship, or with whom their
objectivity may be compromised." N.J.A.C. 3A:10-1.3.

4 A-3016-15T1
each of which depicted S.M.'s empty chair. In two of the photos,

a blue bag identified by H.B. as S.M.'s bag was depicted on a

chair next to S.M.'s purported empty chair. According to H.B.,

at one point that evening, she observed S.M. sleeping in her chair

but S.M. woke up when she tried to take her picture. H.B. also

confirmed posting the photos with the captions on Facebook and

being contacted via Facebook by an individual who identified

himself as a journalist.

S.M. was also interviewed during the investigation and

disputed the allegations. Although she specifically denied ever

sleeping during a visit, she admitted taking calls and receiving

messages while supervising visits but asserted that she remained

in her chair outside of the visitation room. When confronted with

the photos of her empty chair containing only a blue bag, S.M.

confirmed that the bag belonged to her but explained that any

absences from her post were for bathroom breaks. According to

S.M., during bathroom breaks for M.B., she accompanied H.B. and

M.B. to the bathroom and during bathroom breaks for herself, she

obtained coverage in accordance with office protocol.

S.M. explained that at some point during the November 16

visit, a co-worker sent her a text asking to use her employee

access card. The co-worker confirmed that S.M. was positioned

outside the visitation room when she came to retrieve the card.

5 A-3016-15T1
S.M. also stated that during the November 23 visit, she sent a

text at 6:49 p.m. to another co-worker, asking to be relieved to

use the bathroom, and she was immediately relieved. The co-worker

confirmed S.M.'s account and provided a screenshot of the text

message documenting the exchange.

The investigation concluded that "the allegation of neglect

for inadequate supervision" by S.M. was "not established." The

report noted that while "[t]he information gathered in this

investigation did not constitute child abuse or neglect as defined

by . . . [N.J.S.A. 9:6-8.21], . . . the child was harmed or placed

at risk of harm." S.M. was notified of the investigative finding

through correspondence dated February 1, 2016, and this appeal

followed.

II.

On appeal, S.M. argues, "there is no indicia that the standard

of preponderance of the evidence was applied" in the PDCIU's

conclusion. Rather, S.M. asserts that "[t]he investigator's

'evaluation' is simply a recitation of evidence[,] not an

analysis[.]" As such, according to S.M., "the findings of the

[PDCIU] fail both factually and as a matter of law" and are

therefore "arbitrary and capricious." S.M. urges that the findings

of the PDCIU be set aside and the accusations against her be deemed

"'unfounded' within the meaning of N.J.A.C. 10:129-7.3(c)"

6 A-3016-15T1
instead. S.M. argues further that due process and our prior

decisions demand that the notification include language clearly

explaining "that the investigation is inconclusive, and is not

adjudicatory." We reject both arguments.

We are guided by well-established principles in our review

of the Department's decision. A finding of "not established" does

not entitle a party to a hearing, see N.J.A.C. 3A:5-4.3(a)(2), but

is deemed a final agency decision appealable as of right to the

Appellate Division. R. 2:2-3(a)(2). The scope of appellate review

of an administrative agency's final determination is limited. In

re Stallworth, 208 N.J. 182, 194 (2011).

In determining whether an agency action is arbitrary,

capricious, or unreasonable, we must make three inquiries:

(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.

[In re Herrmann, 192 N.J. 19, 28 (2007)
(quoting Mazza v. Bd. of Trs., 143 N.J. 22,
25 (1995)).]

Where an agency satisfies this standard of review, we must give

"substantial deference to the agency's expertise and superior

7 A-3016-15T1
knowledge of a particular field." Id. at 28. We must defer even

if we would have reached a different result. In re Carter, 191

N.J. 474, 483 (2007).

In short, we are not permitted to substitute our judgment

"for that of [the] administrative agency." Barrick v. State, 218

N.J. 247, 260 (2014) (alteration in original) (citation omitted).

Finally, there is a "strong presumption of reasonableness [that]

attaches to the actions of the administrative agencies." In re

Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In re

Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J.

306 (1994)).

With these principles in mind, we discern no factual or legal

basis to overturn the Department's final decision that the

allegation of abuse was "not established." If the Department

evaluates an allegation of abuse, it must determine if the

allegation is "substantiated," "established," "not established,"

or "unfounded." See N.J.A.C. 3A:10-7.3(c). After completing its

investigation, the Department must "notify the alleged perpetrator

and others of the outcome of its investigation." Matter of E.

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

N.J.A.C. 3A:10-7.3(c)(3) defines "not established" as

follows:

8 A-3016-15T1
 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.

An allegation is deemed "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)(4).]

An "abused or neglected child" is defined in N.J.S.A. 9:6-

8.21(c) in pertinent part 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,
including the infliction of excessive corporal
punishment; or by any other acts of a
similarly serious nature requiring the aid of
the court[.]

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

"Parent or guardian" as defined by N.J.S.A. 9:6-8.21(a) includes

"a teacher, employee, or volunteer . . . of an institution who is

responsible for the child's welfare and any other staff person of

9 A-3016-15T1
an institution regardless of whether or not the person is

responsible for the care or supervision of the child."

Only 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). G.S. v. Dep't of Human Servs., 157 N.J.

161, 178 (1999); L.A. v. N.J. Div. of Youth & Family Servs., 217

N.J. 311, 332 (2014). Not every harm or risk of harm is of such

a serious nature to cause a child to become an abused or neglected

child. Thus, it is not inconsistent to find that a child was

placed at risk of harm and yet was not abused or neglected.

Applying the appropriate standard of review, we conclude that

the Department's determination that the allegation was "not

established" pursuant to N.J.A.C. 3A:10-7.3(c)(3) is supported by

substantial evidence in the record and is neither arbitrary,

capricious, nor unreasonable. We therefore find no reason to

disturb the Department's determination. While the record clearly

demonstrates that M.B. was not abused or neglected pursuant to

N.J.S.A. 9:6-8.21(c), the finding of "not established" was

appropriate because the evidence indicated that M.B. was placed

at risk of harm by S.M.'s failure to maintain constant audio and

visual contact during "high alert" supervised visits. The witness

statements, photos and S.M.'s own admissions that she took calls

and received messages during visits support the conclusion.

10 A-3016-15T1
 We also reject S.M.'s contention that the notification should

include language clearly explaining "that the investigation is

inconclusive, and is not adjudicatory." In In re R.P., 333 N.J.

Super. 105, 113 (App. Div. 2000), we stated that "[a] finding by

[the Department] 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."

(citation omitted). See also Dep't of Children & Families v.

D.B., 443 N.J. Super. 431, 443-44 (App. Div. 2015); N.J. Dep't of

Children & Families' Institutional Abuse Investigation Unit v.

S.P., 402 N.J. Super. 255, 270-71 (App. Div. 2008); In re A.I.,

393 N.J. Super. 114, 131 (App. Div. 2007).

"We did, however, find that teachers do have the right to

challenge the wording of the findings of the Department"

communicated to their employer. D.B., supra, 443 N.J. Super. at

444 (citing S.P., supra, 402 N.J. Super. at 270-71). However,

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

protections as the particular situation demands.'" R.P., supra,

333 N.J. Super. at 113 (quoting Morrissey v. Brewer, 408 U.S. 471,

481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). Here,

given the fact that the investigating agency and the employer are

essentially the same entity, we find no procedural defect or

11 A-3016-15T1
violation of due process in the Department's failure to include

S.M.'s requested language in the notification. Moreover, neither

D.B., S.P., nor In re A.I. dictates a contrary conclusion.

Affirmed.

12 A-3016-15T1