IN THE MATTER OF S.P

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                     NOT FOR PUBLICATION WITHOUT THE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-0040-16T4

IN THE MATTER OF S.P.
________________________

           Submitted January 9, 2018 – Decided January 22, 2018

           Before Judges Fasciale and Sumners.

           On appeal from the Department of Children and
           Families, Division of Child Protection and
           Permanency.

           Williams Law Group, LLC, attorneys for
           appellant S.P. (Allison C. Williams, of
           counsel and on the brief; Elizabeth D. Burke
           and LaToya N. Whiteside, on the briefs).

           Christopher S. Porrino, Attorney General,
           attorney for respondent Department of Children
           and Families (Melissa H. Raksa, Assistant
           Attorney General, of counsel; Christina
           Duclos, Deputy Attorney General, on the
           brief).

PER CURIAM

     S.P., the mother of a child born in 2009, appeals from a

final   agency   decision     by   the   New   Jersey    Division    of   Child

Protection and Permanency (Division) determining, pursuant to
N.J.A.C. 10:129-7.3(c)(3),1 that an allegation of neglect had not

been established.     Such a determination allows the Division to

maintain a record of its investigation should future interventions

become necessary.    S.P. argues there exists insufficient evidence

in the record to support the Division's findings.                 She also

contends that the Division deprived her of the opportunity to

"challenge the investigatory finding through the administrative

process."    We disagree and affirm.

       We must "uphold an agency's decision 'unless there is a clear

showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record.'"            Dep't of Children &

Families, Div. of Youth & Family Servs. v. T.B., 
207 N.J. 294,

301-02 (2011) (quoting In re Herrmann, 
192 N.J. 19, 27-28 (2007)).

We conclude that S.P.'s contentions are without sufficient merit

to warrant discussion in a written decision.        R. 2:11-3(e)(1)(D),

(E).    We add the following brief remarks.

       The finding against S.P. was "not established." N.J.A.C.

3A:10-7.3(c)(3)    explains   that   "[a]n   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 . . . placed



1
       This statute has been recodified as N.J.A.C. 3A:10-7.3(c)(3).

                                     2                             A-0040-16T4
at risk of harm."

     The Division'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.         While     the    record   clearly

demonstrates S.P. did not abuse or neglect the child pursuant to


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

appropriate because the evidence indicated that S.P. placed the

child at risk of harm.

     The Division received a referral that S.P. had used marijuana

and cocaine with others.         A Division worker talked to S.P., who

denied using cocaine but acknowledged that she had smoked marijuana

two weeks prior to the referral.              S.P. agreed to take a urine

test, which was negative but showed an abnormal specific gravity

reflecting urine dilution.         The test results did not reveal the

nature   of    the   dilution    and   S.P.   was   unable     to   provide   any

explanation for the abnormality.

     At a substance abuse evaluation, S.P. stated that she first

used marijuana about twelve years earlier, when she was twenty-

six years old.       She admitted smoking the substance about two weeks

prior to the referral.          She smoked marijuana, she explained, to

alleviate back pain.

     The substance evaluator concluded that S.P. met the criteria

                                        3                                A-0040-16T4
for mild marijuana use disorder and recommended Level I outpatient

treatment, which she agreed to attend.       S.P. then signed a case

plan after changing the document from reporting she had a history

of   smoking   marijuana   "very   sporadically"   to   reflecting   her

marijuana use was an "isolated incident."          S.P. completed the

treatment.

      The Division determined that the evidence showed that S.P.

placed the child at a risk of harm. She admitted smoking marijuana

two weeks prior to the referral and one year before that, in

addition to using marijuana before that timeframe; two urine

screens reflected a diluted sample, for which she offered no

explanation; and S.P. signed the case plan only after modifying

the language to say that the marijuana incident was an "isolated

incident." The Division concluded that her recent use of marijuana

was not an "isolated incident," and there remained uncertainty as

to the frequency and severity of S.P.'s drug use.

      A finding of "not established" does not entitle a party to a

hearing.     Rather it is a final agency decision appealable as of

right to us.    R. 2:2-3(a)(2).    As we recently held in Department

of Children & Families v. D.B., 
443 N.J. Super. 431, 442 (App.

Div. 2015), "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 . . . 'not established.'"

                                    4                           A-0040-16T4
Affirmed.




            5   A-0040-16T4