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In re Finding of Child Abuse/Neglect Against G.S.


August 17, 2010


On appeal from a Final Agency Decision of the State of New Jersey, Department of Children and Families, No. 07-910.

Per curiam.



Argued May 4, 2010

Before Judges Wefing, Messano and LeWinn.

G.S. appeals from the substantiated finding of child abuse entered against him by the Department of Children and Families (DCF), and the resultant inclusion of his name on the child abuse registry, N.J.S.A. 9:6-8.11. G.S. seeks our remand of the matter to the Office of Administrative Law (OAL) so that he may administratively challenge the finding. He raises the following points on appeal:





We have considered these arguments in light of the record and applicable legal standards. We affirm.

The facts and procedural history are not in dispute. On March 30, 2007, DCF received a report that G.S., then sixteen-years old, had "fondl[ed]/touch[ed]" A.D., then five-years old. On July 23, after conducting an investigation, the extent of which is undisclosed by the record, DCF sent G.S. notification that the complaint "was substantiated," and advised him of his right to an administrative hearing. On August 9, G.S. requested a hearing through his attorney.

On September 13, A.D.'s mother signed a juvenile complaint charging G.S. with second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The complaint alleged that "on or about" May 1, 2006, G.S. had "contact with the genital area of A.D. with his finger." The assault allegedly occurred while G.S. was baby-sitting the child. G.S. was arrested.*fn1

On January 24, 2008, the prosecutor amended the complaint to charge a single count of lewdness, N.J.S.A. 2C:14-4(b)(1), a fourth-degree crime if committed by an adult, and G.S. admitted facts sufficient to prove the charge beyond a reasonable doubt. Although we have not been provided with the transcript from that hearing, counsel for G.S. advised us at oral argument that the factual basis provided clearly indicated that G.S.'s conduct occurred in the presence of A.D. G.S. was placed on probation for one year, successfully completed that sentence, and moved for "deferred disposition and dismissal" on January 23, 2009. See N.J.S.A. 2A:4A-43(b)(1). The complaint was dismissed on June 1.

In the interim, on March 10, DCF responded to G.S.'s request for an administrative hearing.*fn2 Among other things, DCF asked G.S. to "advise . . . if there [wa]s another court reviewing a matter related to this," and further advised G.S. that DCF would "review [the] request for a[] . . . hearing to determine if [he was] eligible." G.S. apparently did not advise DCF of the juvenile court proceedings.

On April 30, DCF confirmed by phone with an investigator at the Middlesex County Prosecutor's Office that G.S. "pled guilty to [l]ewdness in . . . the . . . Family Court . . . ." On the same day, DCF advised G.S. that it was denying his request for an administrative hearing, stating, "Since you received due process in the criminal justice system concerning the sexual abuse allegation, pursuant to N.J.A.C. 10:120A-1.2(e) [sic], you are not entitled to any further due process in relation to this matter."*fn3 This appeal followed.

In his first point, G.S. argues that DCF "misinterpret[ed] the legal significance of the juvenile proceedings . . . when [it] denied him his right to an administrative hearing"; that "DCF cannot use for substantive collateral purposes a dismissed adjudication of juvenile delinquency"; and that "DCF had no right to receive the juvenile records in this case."*fn4 We consider the last argument first.

The records of juvenile delinquency proceedings in the Family Part are subject to limited disclosure by statute. N.J.S.A. 2A:4A-60(a) provides for disclosure in certain circumstances, and to certain individuals and agencies:

a. Social, medical, psychological, legal and other records of the court and probation division, and records of law enforcement agencies, pertaining to juveniles charged as a delinquent or found to be part of a juvenile-family crisis, shall be strictly safeguarded from public inspection. Such records shall be made available only to:

(1) Any court or probation division;

(2) The Attorney General or county prosecutor;

(4) The Department of Human Services or Department of Children and Families, if providing care or custody of the juvenile;

(6) Any person or agency interested in a case or in the work of the agency keeping the records, by order of the court for good cause shown, . . .;

(12) Law enforcement agencies with respect to information available on the juvenile central registry maintained by the courts . . ., including, but not limited to: records of official court documents, such as complaints, pleadings and orders for the purpose of obtaining juvenile arrest information; juvenile disposition information; juvenile pretrial information; and information concerning the probation status of a juvenile. [Emphasis added.]

We have said that "N.J.S.A. 2A:4A-60 is a rule of limited disclosure; it is not a rule of non-disclosure." State ex rel. D.A., 385 N.J. Super. 411, 417 (App. Div.) (citing State ex rel. J.P.F., 368 N.J. Super. 24, 42 (App. Div.), certif. denied, 180 N.J. 453 (2004)), certif. denied, 188 N.J. 355 (2006). "The disclosure allowed by the statute is 'tailored to provide information to organizations and individuals possessing a legitimate interest in the information and as needed for the proper administration of justice.'" D.A., supra, 385 N.J. Super. at 417 (quoting J.P.F., supra, 368 N.J. Super. at 42).

G.S. correctly argues that subsections (4) and (6) do not apply in this case because DCF was not providing services to him, nor did DCF apply to the court for release of the information. However, DCF argues that release of the information by the prosecutor's office was justified under subsection (12).

In N.J. Div. of Youth and Family Servs. v. H.B., 375 N.J. Super. 148 (App. Div. 2005), we addressed the issue in a factually different context. There, DYFS appealed the dismissal of its Title Nine proceedings against the defendant/mother who allegedly committed abuse and neglect by permitting her husband to reside in the same home after her thirteen-year old daughter alleged he had sexually assaulted her. Id. at 154-55. During "its investigation, DYFS became aware" of the stepfather's prior conviction for "sexually molesting an underage girl." Id. at 176. He had pled guilty and was subject to the provisions of Megan's Law, N.J.S.A. 2C:7-1 to -21, as a result. Ibid.

When the deputy attorney general asked to inspect the stepfather's Megan's Law file, the prosecutor's office objected and requested that the judge conduct an in camera review. Id. at 176-77. The judge declined and refused to order the prosecutor to submit the file for DYFS's inspection. Id. at 177.

We observed "that '[t]he criminal justice system acts separately, but in tandem with the civil system, to investigate and prosecute those who abuse and neglect children.'" Id. at 178 (quoting State v. P.Z., 152 N.J. 86, 100 (1997)). We further noted that "'[t]he statutory scheme and administrative regulations of [DYFS] envisage cooperation between the agency and law enforcement.'" H.B., supra, 375 N.J. Super. at 178 (quoting N.J. Div. of Youth and Family Servs. v. Robert M., 347 N.J. Super. 44, 63 (App. Div.), certif. denied, 174 N.J. 39 (2002)).

After noting that "N.J.A.C. 10:129-1.1(a) requires DYFS 'to refer to county prosecutors all cases that involve suspected criminal activity on the part of a child's parent, caretaker or any other person,'"*fn5 id. at 178, we concluded, "[t]his referral process is not a one-way street." Id. at 179. We further concluded, "The prosecutor's obligation to work collaboratively with DYFS does not end with the reporting phase. The existing regulatory framework requires a specific institutional mechanism of cooperation encompassing investigational and adjudicatory phases as well."*fn6 Ibid. (emphasis added). "The norm, in this collaborative environment, is for information to be liberally shared between these two public agencies." Id. at 180. Furthermore, in discussing the specific provision of Megan's Law that 'require[d] '[r]ecords maintained pursuant to th[e] act . . . [to] be open to any law enforcement agency in this State, . . .'" ibid. (quoting N.J.S.A. 2C:7-5(a)) (emphasis in original), we held that "DYFS, as our State's lead law enforcing agency in the area of child protection, is indisputably covered by this language." H.B., supra, 375 N.J. Super. at 179.

Of course in H.B., the provisions of N.J.S.A. 2A:4A-60(a)(12) were not implicated since the defendant and stepfather were adults. G.S. has not directly addressed the applicability of this subsection of N.J.S.A. 2A:4A-60(a), but we discern from the other arguments raised that he contends the conclusions we reached in H.B. do not apply because "[t]he Code of Juvenile Justice . . . is a distinct and separate statutory scheme from the Code of Criminal Justice . . . ." We do not quarrel with that general assertion, and indeed there is support for this position contained in a provision of Title Nine that neither party has addressed.

N.J.S.A. 9:6-8.40 provides:

When [DCF] receives a report or complaint that a child may be abused or neglected . . . , the department may request of any and all public or private institutions, or agencies including law enforcement agencies, . . . their records past and present pertaining to that child and other children under the same care, custody and control. . . . Records kept pursuant to the "New Jersey Code of Juvenile Justice," . . . may be obtained by the department, upon issuance by a court of an order on good cause shown directing these records to be released to the department for the purpose of aiding in evaluation to determine if the child is abused or neglected. . . . [Emphasis added.]

Although the appellate record is less than clear, in this case the prosecutor's office apparently did not release any "records," instead confirming by phone the disposition of G.S.'s juvenile complaint; we do not believe that technical difference matters for purposes of the statute. DCF obtained the disposition of G.S's juvenile complaint, clearly a "[r]ecord[] kept pursuant to the New Jersey Code of Juvenile Justice," without obtaining a court order.

We apply well-known canons of statutory construction to interpret N.J.S.A. 9:6-8.40.

The primary objective of the court is to ascertain the intent of the Legislature, and the best indicator of that intent is the statutory language. In reviewing that language, courts should ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole. [N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382, 403 (2009) (quotations omitted).]

The plain language of N.J.S.A. 9:6-8.40 compels the conclusion that when DCF seeks the records of juvenile delinquency proceedings, it must obtain a court order for their release unless DCF is "providing care or custody of the juvenile[.]" N.J.S.A. 2A:4A-60(a)(4).

We recognize some countervailing policies that are reflected in other provisions of Title Nine, and elsewhere within N.J.S.A. 2A:4A-60. N.J.S.A. 2A:4A-60(c)(1), for example, provides that "[a]t the time of charge, adjudication or disposition, information as to the identity of a juvenile charged with an offense, the offense charged, the adjudication and disposition shall, upon request, be disclosed to: [t]he victim or a member of the victim's immediate family[.]" Thus, A.D.'s mother was entitled to know of G.S.'s guilty plea, and we see no principled reason why she would be prohibited from telling DCF of the result, particularly since its administrative proceeding was continuing. Indeed, N.J.S.A. 9:6-8.10 requires that "[a]ny person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately to the Division of Youth and Family Services . . . including any . . . information that the person believes may be helpful with respect to the child abuse and the identity of the perpetrator."

Additionally, county prosecutors are duty bound to report any complaint alleging child abuse or neglect to DYFS. N.J.S.A. 9:6-8.25(b) provides in pertinent part, "If any police officer, county prosecutor or criminal court receives a complaint which amounts to child abuse or neglect, the police officer, county prosecutor or criminal court shall report to [DYFS] pursuant to [N.J.S.A. 9:6-8.10]." Neither N.J.S.A. 9:6-8.10, nor N.J.S.A. 9:6-8.25(b) differentiates among reporting obligations depending upon whether the alleged perpetrator is a juvenile or an adult.

We also note the paramount importance conferred upon DCF to protect the children of this State. The Legislature established DCF "[i]n order to facilitate aggressive reform of the child welfare system and ensure that the reform effort is successful . . . ." N.J.S.A. 9:3A-2(d). DCF was thus "establish[ed as] a principal department within the Executive Branch that focuse[d] exclusively on protecting children and strengthening families . . . [with] the goal of ensuring safety, permanency, and well-being for all children . . . ." Ibid. Yet, subsequent to creating DCF, the Legislature amended N.J.S.A. 9:6-8.40 to make technical corrections, substituting the Department for its predecessor agency, and left the substance of the statute intact. See Pub. L. 2006, c. 47 §51 (eff. July 1, 2006).

We must presume that by amending N.J.S.A. 9:6-8.40 to make technical changes, but leaving the statute's specific requirement that DCF secure a court order to obtain juvenile records, the Legislature was well aware of N.J.S.A. 2A:4A-60(a)(12) permitting release of juvenile records to "law enforcement agencies" without the need for a court order. See J.P.F., supra, 368 N.J. Super. at 38 (noting the Legislature's "presumed knowledge of [the] previously enacted Juvenile Code" when construing notice provisions of subsequently-enacted Megan's Law). Again applying our usual rules of statutory construction, "the more specific" provisions of N.J.S.A. 9:6-8.40 and N.J.S.A. 2A:4A-60(a)(4) "must prevail over the more general" provisions of N.J.S.A. 2A:4A-60(a)(12). J.P.F., supra, 368 N.J. Super. at 38 (quotation omitted). We must conclude any tension between these provisions "reflect[] the legislative decision to treat juvenile offenders differently from adult offenders . . . ." D.A., supra, 385 N.J. Super. at 417. We commend any further examination of the issue to the Legislature.

However, our conclusion does not substantially assist G.S. in his arguments. We have no doubt that had DCF sought the release of the disposition of G.S.'s juvenile complaint, and the sentence imposed, the court below would have released that information. As noted, G.S. acknowledged that he committed acts that would have sustained an adult conviction for fourth-degree lewdness. This means that he admitted "expos[ing] his intimate parts for the purpose of arousing or gratifying the sexual desire of [himself] or of any other person under circumstances where [he] kn[ew] or reasonably expect[ed] he [would] likely . . . be observed by a child who [wa]s less than 13 years of age[,]" and that "[he] [w]as at least four years older than the child. N.J.S.A. 2C:14-4(b)(1). Had DCF sought release of the dispositional records from the Family Court pursuant to N.J.S.A. 9:6-8.40, or N.J.S.A. 2A:4A-60(a)(6), such a request would have undoubtedly been granted because good cause was easily demonstrated.

G.S. also argues that the disposition of his juvenile case cannot be used against him by DCF to deny his administrative appeal. He cites to N.J.S.A. 2A:4A-48, which provides:

No disposition under this act shall operate to impose any of the civil disabilities ordinarily imposed by virtue of a criminal conviction, nor shall a juvenile be deemed a criminal by reason of such disposition.

The disposition of a case under this act shall not be admissible against the juvenile in any criminal or penal case or proceeding in any other court except for consideration in sentencing, or as otherwise provided by law. [Emphasis added.]

We reject the argument.

The Legislature expressly prohibited the use of a juvenile disposition "in any criminal or penal case or proceeding in any other court . . . ." Ibid. DCF's administrative proceeding, including any referral to the OAL, is an action brought by the executive branch. As such, it is not a "case or proceeding in any other court . . . ." See In re Tenure Hearing of Tyler, 236 N.J. Super. 478, 486-87 (App. Div. 1989) (noting in another context that "neither the [OAL] nor the State Board [of Education] are courts[,]" but rather "administrative agencies and their adjudicative functions are actually an aspect of their regulatory powers and, in essence, do not embrace or constitute an exercise of judicial authority") (quotation omitted), certif. denied, 121 N.J. 615 (1990). We must assume that if the Legislature intended to prohibit the use of a juvenile disposition in all proceedings of whatever nature, it clearly would have said so. See State v. Gelman, 195 N.J. 475, 487 (2008) (recognizing the Legislature's ability "to draft language to accomplish [its] objective").

In his last argument raised in Point One, G.S. contends that DCF "misinterprets the legal significance of the juvenile proceedings . . . ." This refers to the language used by DCF in its April 30 letter denying G.S. a hearing, i.e., specifically references to his "criminal conviction" and receipt of "due process in the criminal justice system." We acknowledge the points raised: juvenile offenders are adjudicated to be delinquent, N.J.S.A. 2A:4A-23, and are not "deemed a criminal by reason of such disposition[,]" N.J.S.A. 2A:4A-48; and, juvenile proceedings take place under an entirely different statutory scheme, the "Code of Juvenile Justice," N.J.S.A. 2A:4A-20 to -48. But, we fail to see why DCF's use of improper terminology accords G.S. the right to an administrative hearing in this case. This is so because DCF did not base its denial of an administrative hearing upon G.S. being convicted of a crime.

Rather, DCF concluded that G.S. was not entitled to an adjudicatory hearing on the finding of abuse and neglect because he had essentially been accorded the opportunity to contest the facts surrounding the allegation through the proceedings in the Family Part, and, instead, in those proceedings he admitted to conduct that clearly would have sustained a finding of abuse and neglect in any subsequent administrative hearing. We agree with DCF's position in this regard.*fn7

Clearly, as G.S. argues in Point 2, if a finding of abuse and neglect is lodged against a person, due process entitles him to an adjudicative hearing to contest the facts. See Div. of Youth and Family Servs. v. D.F., 377 N.J. Super. 59, 64 (App. Div. 2005) ("If DYFS finds based on its internal investigation that a charge of child abuse or neglect has been 'substantiated,' any person whose name is placed in the Central Registry is entitled to a trial-type hearing to challenge this finding."); accord N.J. Div. of Youth and Family Servs. v. M.R., 314 N.J. Super. 390, 425 (App. Div. 1998) (Eichen, J.A.D., concurring).

Any "request by a perpetrator of child abuse or neglect to appeal a substantiated finding of child abuse or neglect" is automatically referred to the OAL "when there are material disputed facts." N.J.A.C. 10:120A-4.3(a)(2). If DCF believes "material disputed facts" do not exist, it may move "for [s]ummary [d]isposition." N.J.A.C. 10:120A-4.2(a). However, when DCF determines "the appellant is not eligible for an administrative hearing for reasons other than the absence of material disputed facts, [it] shall notify the appellant of this determination . . . , as well as provide the appellant with information concerning other appeal avenues which may be available." N.J.A.C. 10:120A-4.1(e) (emphasis added). That is what occurred in this case.

The reason "other than the absence of materially disputed facts" cited by DCF in this case was that the "issues . . . [we]re before, or ha[d] been resolved by, a trial court with jurisdiction over the matter under dispute." N.J.A.C. 10:120A-1.2(f). We agree with DCF that this limitation on an alleged perpetrator's right to an administrative hearing is both logical and legally sound.

It is logical because there is no reason, and indeed G.S. has failed to provide any, why an alleged perpetrator should be entitled to both an administrative hearing as to whether he committed child abuse and/or neglect, and a proceeding in a court of competent jurisdiction, the purpose of which is to decide the same issue. It is not only duplicative, but it further strains the already-strained resources of two branches of government.

It is legally sound because in the court proceeding, whether in juvenile court or in adult criminal court, the burden of proof upon the State is even greater than it would be upon DCF in the administrative hearing. Thus, having proved beyond a reasonable doubt that G.S. committed an act of child abuse, we fail to see why it was necessary to conduct an administrative hearing at which DCF's burden of proof was merely to establish by a preponderance of the evidence that G.S. committed an act of abuse or neglect. See In re Allegations of Sexual Abuse at E.

Park High School, 314 N.J. Super. 149, 168 (App. Div. 1998) (noting the burden of proof in such administrative hearings is the "preponderance of the evidence standard"); see also N.J. Div. of Youth and Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (noting the standard of proof in a Title Nine proceeding is by the "preponderance of the evidence").

Having stated our agreement with DCF's argument under the facts of this particular case, we express significant concerns regarding the strict application of these regulations to deny alleged perpetrators administrative hearings. Our concerns are threefold.

In this case, relying upon telephonic confirmation by a prosecutor's investigator that G.S. had "pled guilty," DCF concluded that the "issues . . . ha[d] been resolved by[] a trial court with jurisdiction over the matter under dispute." N.J.A.C. 10:120A-1.2(f). However, there is nothing in DCF's confirming letter to the prosecutor's office that necessarily demonstrates that G.S.'s lewd acts involved A.D., the subject of DCF's investigation. In other words, there is nothing in the record that demonstrates the juvenile proceedings resolved the same "matter under dispute."

Indeed, it is easy to envision other circumstances, such as the result of a plea bargain, wherein the ultimate charge of delinquency or guilt is different from the initial charge and does not involve the affected child and an act of abuse or neglect. Thus, we are troubled if DCF uses N.J.A.C. 10:120A-1.2(f) to deny an administrative hearing simply because the matter was resolved in court. Certainly, as per our earlier discussion regarding the need for DCF to move in court for the appropriate juvenile records, obtaining the actual records would increase the likelihood that the agency's denial of an administrative hearing would be based upon a full resolution of the factual issues involving the affected child having taken place in court, i.e., that the court proceedings adjudicated the same "matter under dispute."

Secondly, N.J.A.C. 10:120A-1.2(f) permits DCF to deny an administrative hearing when "issues . . . are before . . . a . . . court[,]" but not yet resolved. In other words, DCF can deny an alleged perpetrator an administrative hearing based upon a pending court case, regardless of how long those proceedings may take.

In this regard we note that DCF is required to forward its report to the Child Abuse Registry "within 72 hours" of its completion. N.J.S.A. 9:6-8.11. Thereafter, an alleged perpetrator's name will be included in the Central Registry pending any administrative hearing, after which, depending upon the result, his name will either remain in the Central Registry, or be removed. D.F., supra, 377 N.J. Super. at 66. We have refused to consider the due process implications of pre-hearing inclusion in the Registry for a variety of reasons. See id. at 64-65 n.2 (refusing to consider the issue because it was not squarely before us and had not been briefed by the parties); see also N.J. Div. of Youth and Family Servs. v. J.L., 410 N.J. Super. 159, 170-71 (App. Div. 2009) (refusing to consider the issue because it was not raised before the agency).

So too here, the issue is not properly before us and has not been briefed by the parties. However, the concern we have previously expressed is heightened if DCF construes N.J.A.C. 10:120A-1.2(f) to permit the denial of an administrative hearing indefinitely, while the alleged perpetrator's name is in the Central Registry, based solely upon the pendency of a court proceeding.

Lastly, it is obvious that some court proceedings will result in a complete exoneration of all juvenile or criminal charges. Once denied the right to an administrative hearing based upon the language of N.J.A.C. 10:120A-1.2(f), the question becomes how can an alleged perpetrator obtain review of the administrative determination? We see no specific regulation that addresses this concern. DCF has not explained how its regulatory framework permits the resurrection of the administrative appeal and its referral to OAL in such circumstances, nor are we certain the information regarding the ultimate disposition of the court proceeding would necessarily reach DCF in the first instance.

G.S. has not raised a facial challenge to the regulations, and, as noted, the issues we have raised are not directly before us. Nevertheless, "the issues of due process and procedural fairness that concerned us in" the past remain extant, J.L., supra, 410 N.J. Super. at 171, and "merit further attention" by DCF. D.F., supra, 377 N.J. Super. at 65 n.2.


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