Southcarolina v. N.J. Dep't of Children & Families, DOCKET NO. A-4792-15T3
| Decision Date | 31 August 2018 |
| Docket Number | DOCKET NO. A-4792-15T3 |
| Parties | S.C., Appellant, v. NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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).
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 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.
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.
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 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."
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
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 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) ().
As we explained in D.B., "[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." 443 N.J. Super. at 443 () (quoting In re R.P., 333...
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