NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.B.,

Defendant-Appellant.

______________________________

IN THE MATTER OF Q.N., J.N.,

A.B., T.P. and Ty.P.,

Minors.

______________________________

December 9, 2013

Submitted June 18, 2013 Decided

Before Judges Fisher and Grall.

On appeal from the Department of Children and Families.

L.B., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lori J. DeCarlo, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

GRALL, P.J.A.D.

On July 11, 2011, the Department of Children and Families (Department) denied L.B.'s request for a hearing to challenge the Department's inclusion of her name in its registry of perpetrators of substantiated child abuse or neglect. N.J.S.A. 9:6-8.11. The finding of neglect was made by a judge of the Family Part following a fact-finding hearing on the Department's allegation that L.B. neglected five children. N.J.S.A. 9:6-8.44 to -8.50. It is memorialized in an order the judge entered August 22, 1988. On February 6, 1990, the judge terminated the litigation and returned L.B.'s five children to her custody without further supervision. N.J.S.A. 9:6-8.51, -8.53. L.B. now seeks reversal of the Department's decision to deny her a hearing and remove her name from the registry.

The Department gave the following explanation for its decision.

According to the court order dated August 22, 1988, the Atlantic County Superior Court has determined that pursuant to N.J.S.A. 9:6-8.21, you did neglect your children, and [you] are thereby substantiated for child neglect. Since you received due process in the in family court concerning the neglect allegations, pursuant to N.J.A.C. 10:120A-1.2(f), your are not entitled to an administrative hearing.

Therefore, your request for an Administrative Hearing is denied. As a result of this decision, the Division's finding that you neglected your children . . . is the [Department's] Final Agency Decision in this matter and your name will remain in the [Department's] Central Registry permanently.

On the same day, the Department issued a "Notice of Change of Child Abuse or Neglect Finding." That notice addressed a different incident in which the Department had "substantiated child abuse or neglect" after an investigation. That incident involved only one of L.B.'s children, and the Department was unable to locate the records. Accordingly, the notice advised that the Department was changing its record of that incident to indicate that the charge was "not substantiated" and that it would remove the prior report from "its central registry" unless and until the Department located the documentation supporting it. L.B. does not dispute that determination.

On appeal L.B. acknowledges that the Department removed her children from her home in 1988 because she had left them alone because she was struggling with drug addiction. She submits, however, that she overcame that addiction before her children were returned to her in 1990, and she claims that the Department should remove her name from the registry for that reason. She further notes that she regained custody of her children, raised them to adulthood and, with the Department's knowledge, has also raised the children of members of her family. According to L.B. she wants her name removed from the registry so that she can obtain a license from the State of New Jersey to care for other children. There is, however, nothing in the record provided on appeal that indicates L.B. applied for and was denied approval to care for the children of others.1 The record does not contain L.B.'s request for a hearing, but the Department's brief advises "[u]pon information and belief," L.B. "orally requested a hearing to challenge the [Department's] findings" that led to the inclusion of her name in the registry.

There is no basis for us to disturb the Department's final decision in this case. The regulation upon which the Department relied, N.J.A.C. 10:120A-1.2(f), is consistent with principles of collateral estoppel. It exempts determination of an issue "resolved by[] a trial court with jurisdiction over the matter" from the appeal process set forth in Chapter 120 of the Department's regulations, N.J.A.C. 10:120A-1.1 to -4.4. See N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 114-15 (2011) (discussing collateral estoppel and res judicata).2

Generally, absent a reversal on appeal or grounds for relief from a judgment pursuant to Rule 4:50-1, a trial court's resolution of an issue precludes relitigation of an issue decided in a proceeding where due process was afforded. See R.D., supra, 207 N.J. at 114-15. Appeals from court orders entered in an abuse or neglect proceeding, may be taken to this court, N.J.S.A. 9:6-8.70; R. 2:2-3(a)(1), but L.B. did not appeal the August 1988 order.

Those principles apply here. To the extent L.B. seeks removal of her name from the child abuse registry of perpetrators of abuse or neglect, the order entered by the trial court in August 1988 resolved the critical questions. As a consequence of the court's finding of neglect within the meaning of N.J.S.A. 9:6-8.21, the Department was required to include L.B. in the registry. N.J.S.A. 9:6-8.11; see N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 21 (App. Div. 2004). By statute and regulation, the Department has the authority to expunge only records related to child abuse or neglect that are determined to be "unfounded." N.J.S.A. 9:6-8.40a; see N.J.A.C. 10:129-8.2. That is not the case here.

Our review of determinations made by an administrative agency is quite deferential. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In this case, the Department's determination is supported by the pleadings and the order filed in Family Part. Ibid. Moreover, it is neither arbitrary, capricious, contrary to controlling legal principles nor inconsistent with the Department's statutory responsibilities and authority. Ibid. Consequently, there is no basis for this court to intervene.

In closing, it is important to indicate what we have not resolved on this appeal. As previously noted, L.B. asserted that she wants authorization from the Department to serve as a resource parent and claims the Department has allowed her to do that in the past, despite the 1988 determination that she neglected her children. Nothing in this decision should be understood to bar L.B. from seeking such authorization in the future or from seeking review of any future denial in conformity with the Department's regulations and the Rules of Court.

Affirmed.

1 The only evidence related to a licensing in this record is a certificate of licensure issued by the Department of Health of the Government of the District of Columbia authorizing the Board of Child Care United Methodist Church to operate a Child Placing Agency in the District. The record also includes a release signed by L.B., who is now living in the vicinity of the District of Columbia, that authorized the Department to send information on her background to the Board of Child Care United Methodist Church. See N.J.S.A. 9:6-8.10a (addressing release of registry information).

2 We recognize that there is an apparent conflict between N.J.A.C. 10:120A-1.2(f) and N.J.A.C. 10:129-7.3(i), which provides that "[a] determination by the Superior Court that abuse or neglect did occur shall not extinguish a perpetrator's right or eligibility to contest a substantiated finding of the allegation by administrative hearing pursuant to N.J.A.C. 10:120A." Reading those regulations and the agency's interpretation together to harmonize the apparent conflict, N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 555 (2012) (so construing related statutes), it appears that the Department reexamines a trial court's finding of abuse or neglect only when it concludes that the hearing did not provide the process due. The Department's self-restraint is not contrary to law, and as the Department did not overturn a judicial finding of neglect in this case, we have no reason to consider whether it could do that in any circumstance.