Thisopinion 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 A-0 OF CHILD PROTECTION AN

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NOT FOR PUBLICATION WITHOUT THE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-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY, DEPARTMENT OF

CHILDREN AND FAMILIES,

Petitioner-Respondent,

v.

D.S. and C.S.,

Defendants-Appellants.

______________________________________

February 2, 2017

Argued July 20, 2016 Decided

Before Judges Leone and O'Connor.

On appeal from the New Jersey Division of Child Protection and Permanency, Investigation No. 18736045.

Allison C. Williams argued the cause for appellants (Williams Law Group, L.L.C., attorneys; Ms. Williams, of counsel and on the brief).

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

The opinion of the court was delivered by

O'CONNOR, J.A.D.

Defendants D.S. (father) and C.S. (mother) are the parents of N.S. (Noah), presently four years of age.1 Defendants appeal from the November 7, 2013 final decision of petitioner New Jersey Department of Children and Families (Department). They challenge the Department's conclusion an allegation Noah had been abused was "not established," see N.J.A.C. 3A:10-7.3(c)(3).2 Defendants contend the Department's finding should be "unfounded," see N.J.A.C. 3A:10-7.3(c)(4). We disagree and affirm.

I

On September 14, 2013, defendants noticed the right side of Noah's head was swollen; at the time, Noah was eight months of age. Because the swelling continued to increase over the next three days, on September 17, 2013, the father took Noah to his pediatrician. After examining the baby, the pediatrician ordered an x-ray of the skull and recommended he be seen by a neurosurgeon.

The x-ray revealed Noah had a nondisplaced linear right parietal skull fracture. Because the parents were unable to account for how the child sustained the fracture, Noah's pediatrician contacted the Department and reported his findings. The Department immediately commenced an investigation.

During its investigation, the parents and Noah's maternal grandmother, who cared for the baby when defendants worked, insisted they did not know how Noah was injured. The Department retained pediatrician Julia DeBellis, M.D., of the Audrey Hepburn Children's House to review the matter. While the case was under investigation, Noah was placed in the custody of his paternal grandparents. Both defendants and Noah's maternal grandmother were permitted only supervised visitation with the baby.

Dr. DeBellis issued a report on October 16, 2013. Her pertinent findings were

[Noah] suffered a nondisplaced linear right parietal skull fracture with an overlying scalp hematoma. The qualities of this particular fracture are consistent with accidental trauma. The possibility of nonaccidental trauma is not eliminated by these fracture details but they allow for the possibility of accidental trauma to exist . . . .

While the possibility of nonaccidental trauma cannot be eliminated, . . . it is plausible that [Noah] could have sustained these injuries accidentally.

What is clear about DeBellis's opinion is that she concluded that the skull fracture was caused by either accidental trauma or non-accidental trauma, but made no determination which had occurred.

Because it was undisputed Noah had been harmed but there was insufficient evidence defendants caused the skull fracture, the Department determined defendants' alleged abuse of Noah was "not established" pursuant to N.J.A.C. 3A:10-7.3(c)(3).

II

On appeal, defendants contend the finding of "not established" is inappropriate because there is no evidence they harmed or put Noah at risk for harm. They also maintain they should have been afforded an opportunity to contest at an evidentiary hearing the factual determination they harmed or put the baby at risk for harm. We reject both arguments.

We are guided by well-established principles in our review of the Department's decision. 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, 27-28 (2006) (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 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). 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 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). N.J.A.C. 3A:10-7.3(c)(1), (2), (3) and (4) define these terms, as follows

1. An allegation shall be "substantiated" if the preponderance of the evidence indicates that a child is an "abused or neglected child" as defined in N.J.S.A. 9:6-8.21 and either the investigation indicates the existence of any of the circumstances in N.J.A.C. 3A:10-7.4 or substantiation is warranted based on consideration of the aggravating and mitigating factors listed in N.J.A.C. 3A:10-7.5.

2. An allegation shall be "established" if the preponderance of the evidence indicates that a child is an "abused or neglected child" as defined in N.J.S.A. 9:6-8.21, but the act or acts committed or omitted do not warrant a finding of "substantiated" as defined in (c)1 above.

3. 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.

4. An allegation shall be "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)(1)-(4).]

An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c) in pertinent part as follows

"Abused or neglected child" means a child less than 18 years of age whose parent or guardian . . . (1) 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; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child 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, as herein defined, to exercise a minimum degree of care . . . (b) 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) (emphasis added)].

Here, as is clear from the record, the Department did not find or determine defendants harmed or put Noah at risk for harm, a point the Department also emphasizes in its brief. The Department states, "[we] specifically determined that the perpetrator of [Noah's] injury was . . . 'unknown.' Indeed, [Noah] may even have hurt himself that possibility was not excluded . . . . Thus, no negative implication or 'branding' attached to [the mother or father]."

The Department contends the finding of "not established" was appropriate under N.J.A.C. 3A:10-7.3(c)(3) because, while there was not a preponderance of evidence Noah was an abused or neglected child as defined by N.J.S.A. 9:6-8.21(c), the evidence indicated he was harmed. The Department further observed the facts do not support a determination of unfounded. For the Department to make a finding of unfounded under in N.J.A.C. 3A:10-7.3(c)(4), there must be not only an absence of evidence a child has been abused or neglected, but also an absence of evidence the child had been harmed or placed at risk of harm. Here, it is undisputed Noah was harmed.

We agree with the Department's analysis and find no reason to disturb its determination the allegation here was appropriately found to be "not established" pursuant to N.J.A.C. 3A:10-7.3(c)(3). Although there was no evidence the parents caused the skull fracture and harmed him in violation of N.J.S.A. 9:6-8.21(c), the evidence indicated he was harmed. The Department properly determined the facts squarely fit within the definition of "not established" in N.J.A.C. 3A:10-7.3(c)(3).

We also reject defendants' contention they were entitled to an evidentiary hearing so they could prove they did not harm or place Noah at risk for harm. First, there was no finding they did so. Second, as we recently held in Dep't of Children & Families v. D.B., 443 N.J. Super. 431 (App. Div. 2015),

[i]f an allegation of abuse or neglect is

substantiated, the accused has a right to request an administrative hearing . . . . N.J.A.C. 10:120A-2.5(a); N.J.A.C. 10:120A-4.3(a)(2). However, N.J.A.C. 10:120A-4.3(a)(2) does not provide a right to an administrative hearing for a finding that abuse or neglect has been "established", "not established", or "unfounded." See N.J.A.C. 10:120A-4.3(a)(2) (providing that by request a person can seek administrative review of substantiated findings); N.J.A.C. 10:120A-2.5(a). When administrative review is not available, such findings are a final decision appealable as of right to the Appellate Division. R. 2:2-3(a)(2).

[Id. at 442].

Defendants raise additional arguments in their reply brief. We decline to address them, as it is improper for a party to use a reply brief to raise an issue for the first time or enlarge an argument asserted in the moving brief. See, e.g., State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div.), certif. denied, 218 N.J. 273 (2014). To the extent any argument raised by defendants has not been explicitly addressed in this opinion, it is because the argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We employ the use of initials, and a fictitious name for defendants' son, in order to protect their privacy.

2 N.J.A.C. 3A:10-7.3 had been codified as N.J.A.C. 10:129-7.3 until January 3, 2017, when it was recodified in its present form. See 49 N.J.R. 98(a) (Jan. 3, 2017).