DEPARTMENT OF CHILDREN AND FAMILIES v. B.S.

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                                NOT FOR PUBLICATION WITHOUT THE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-0500-17T3

DEPARTMENT OF CHILDREN
AND FAMILIES,

          Petitioner-Respondent,

v.

B.S.,

          Respondent-Appellant,

and

P.H.,

     Respondent.
___________________________________

                    Submitted September 25, 2018 – Decided October 15, 2018

                    Before Judges Rothstadt and Natali.

                    On appeal from the New Jersey Department of Children
                    and Families, Division of Child Protection and
                    Permanency, Case ID No. 16-0604.

                    B.S., appellant pro se (Anthony J. Van Zwaren, on the
                    brief).
              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Melissa Dutton Schaffer, Assistant
              Attorney General, of counsel; Christina A. Duclos,
              Deputy Attorney General, on the brief).

PER CURIAM

        B.S. appeals from a final agency decision of the Division of Child

Protection and Permanency (Division), Department of Children and Families

(DCF), denying his and respondent P.H.'s application to become resource family

parents.1 We affirm.

        B.S. was a family friend of M.B, the biological mother of three children,

ages twelve, ten and nine, who were in the Division's legal custody but who

resided with B.S. in his Newark home. The children were deemed presumptively

eligible to reside in the home conditioned upon B.S. obtaining a resource family

parent license.

        As part of the application process, the Division inspected the home and

discovered numerous violations, including plumbing issues and a lack of smok e

and carbon monoxide detectors. The Division also discovered that P.H. resided

in the home and was therefore required to apply for a resource family parent

license and participate in mandatory training for resource parents, which she



1
    P.H. has not appealed from the Division's order.
                                                                         A-0500-17T3
                                         2
initially refused to do. Additionally, Josianne Vincent, a Division caseworker,

observed the children selling water unsupervised on a busy street in Newark. As

a result of these concerns, the Division removed the children from the home.

       Following the removal, the Division continued to evaluate the home and

assist B.S. and P.H. with their application.    During the investigation, B.S.

admitted to a Division caseworker that he hit one of the children. In addition,

M.B. informed the Division that B.S. made persistent and unwanted contact with

her.

       B.S. and P.H were given psychological evaluations to assess their mental

status, parenting ability, and treatment needs. Dr. Mark Singer, Ed.D., issued a

report concluding that while reunification with the children was a viable goa l,

both B.S. and P.H. had significant cognitive and parenting limitations and any

reunification would have to include services for the family.

       In light of these issues, the Division recommended denying B.S.'s and

P.H.'s application. DCF's Office of Licensing (OOL) agreed and determined

B.S. and P.H. failed to meet required licensing standards.       B.S. and P.H.

requested a hearing and the matter was transferred to the Office of

Administrative Law for a hearing before an Administrative Law Judge (ALJ).




                                                                        A-0500-17T3
                                       3
       ALJ Elissa Mizzone Testa presided over a contested hearing and

considered testimony from five witnesses and documentary evidence jointly

introduced by the parties, which included Division contact sheets, a resource

home inspection report, a psychological report from Dr. Singer, and a letter from

M.B.

       At the hearing, Vincent testified to the home inspection violations and

B.S.'s actions in permitting the children to engage in activities that endangered

their welfare. She also stated that B.S. failed to disclose in his initial application

that P.H. was living in the home. Vincent considered this omission significant

because B.S. also told her that P.H. did not want to be a foster parent and initially

refused to participate in mandatory foster parent training.            Vincent also

described the incident where she witnessed the children selling water without

any adult supervision and testified that B.S. admitted to hitting one of the

children.

       Ursula Pollard, a Division quality inspector, stated that B.S. harassed

M.B. by repeatedly contacting her in an attempt to have the children returned to

his care. Division resource supervisor Tyronnette Amosu testified that B.S.

failed to bring the children for scheduled therapeutic services and visits with

M.B. According to Amosu, B.S. improperly continued to contact the children


                                                                              A-0500-17T3
                                          4
after they were removed from the home. Amosu also testified to the significant

issues raised by Dr. Singer's psychological evaluations in which he stated that

before reunification could occur, B.S. would need to receive services including

family therapy to allow him "to better understand the needs of the children and

ways of responding appropriately to the challenge presented by the children."

      B.S. testified and denied that he ever hit the children. As to the allegation

that the children sold water unsupervised, B.S. maintained that a Division

caseworker previously permitted the children to sell water on the street and they

were always supervised by him, his sister, or his nephew.          B.S.'s nephew

confirmed his testimony and stated he would occasionally supervise the children

while they sold water. B.S. also denied that he failed to comply with the

children's scheduled visits with their biological mother and therapeutic service

providers.

      The ALJ characterized B.S.'s testimony as "contradictory" and "self-

serving with no evidence to support his contentions." She similarly found that

his nephew's testimony lacked credibility stating that he was "unable to observe,

remember, or recount dates, times or locations [when] the children [sold] water"

and noting he gave "inconsistent statements" and was "partial" to B.S.




                                                                           A-0500-17T3
                                        5
       After considering the credible evidence, ALJ Mizzone Testa found that:

1) the "children sold water unsupervised on a crowded Newark street;" 2) B.S.

"made persistent, unwanted contact with the biological mother of the children

and failed to comply with her scheduled visits and with the [recommended]

services for the children;" and 3) B.S. "hit at least one of the children for whom

he was seeking to be a resource family parent."

       Based on these findings, the ALJ affirmed the OOL's denial of B.S.'s and

P.H.'s request for a resource family license and concluded that they failed to

prove by a preponderance of the evidence that they satisfied the Level I

supervision requirements detailed in N.J.A.C. 3A:51-5.1(a) and N.J.A.C. 3A:51-

7.1(a)(1). The Division adopted the ALJ's findings of fact and conclusions of

law.

       On appeal, B.S. contends that the Division erred in denying his application

because the ALJ failed to consider and properly assess the evidence and

incorrectly shifted the burden of proof. We disagree and affirm substantially for

the reasons detailed in ALJ Mizzone Testa's comprehensive written opinion.

       Appellate review of an administrative agency decision is limited. In re

Herrmann,  192 N.J. 19, 27 (2007). We generally defer to final agency actions,

only "reversing those actions if they are 'arbitrary, capricious or unr easonable


                                                                          A-0500-17T3
                                        6
or [if the action] is not supported by substantial credible evidence in the record

as a whole.'" N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't

of Agric.,  196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison,

 81 N.J. 571, 579-80 (1980)) (alteration in original).       Under the arbitrary,

capricious, and unreasonable standard, our scope of review is guided by three

major inquiries: (1) whether the agency's decision conforms with the relevant

law; (2) whether the decision is supported by substantial credible evidence in

the record; and (3) whether in applying the law to the facts, the administrative

agency clearly erred in reaching its conclusion. In re Stallworth,  208 N.J. 182,

194 (2011).

      When an agency decision satisfies such criteria, we accord substantial

deference to the agency's fact-finding and legal conclusions, acknowledging the

agency's "expertise and superior knowledge of a particular field."          Circus

Liquors, Inc. v. Governing Body of Middletown Twp.,  199 N.J. 1, 10 (2009)

(quoting Greenwood v. State Police Training Ctr.,  127 N.J. 500, 513 (1992)).

We will not substitute our judgment for the agency's even though we might have

reached a different conclusion. Stallworth,  208 N.J. at 194; see also In re Taylor,

 158 N.J. 644, 656 (1999).




                                                                           A-0500-17T3
                                        7
      The OOL is responsible for licensing resource family homes that serve

children in the custody or supervision of the Division. N.J.A.C. 3A:51-1.1(a).

The OOL is authorized to deny a resource parent application for good cause,

which includes "conduct, engaged in or permitted, which adversely affects or

presents a serious hazard to the education, health, safety, general well-being or

physical, emotional and social development of a child" or if the applicant is not

"in full compliance with one or more [L]evel I requirements." N.J.A.C. 3A:51-

2.5(b)(8) to (9); N.J.A.C. 3A:51-1.5(a)(1).

      The Level I requirements detailed in N.J.A.C. 3A:51-5.1(a) require a

resource parent to be of "good character" and to possess the "skills, attributes

and characteristics conducive to . . . caring effectively for a child in placement."

Further, the resource parent must "[be] in sufficient physical, mental, and

emotional health to perform his . . . duties satisfactorily," "cooperate with all

activities in the case plan for the child in placement, such as counseling, therapy,

court sessions, visits with the child's family", and "be able to provide daily care

and supervision for each child . . . as appropriate to the child's age and needs."

Finally, N.J.A.C. 3A:51-7.1(a)(1) requires a resource parent to "ensure that the

medical, dental, mental/behavioral health, and other health care needs of each

child in placement are adequately and promptly met . . . ."


                                                                            A-0500-17T3
                                         8
      After thoroughly reviewing the record in light of the applicable legal

principles and the standard of review, we are satisfied that the Division's

decision was not arbitrary, capricious or unreasonable and was supported by

substantial credible evidence in the record. According deference to the ALJ's

credibility determinations, there is substantial evidence in the record to support

the ALJ's factual findings. Those findings support the denial of B.S.'s resource

family license because he failed to meet the Level I requirements detailed in

N.J.A.C. 3A:51-5.1(a) and N.J.A.C. 3A:51-7.1(a)(1).

      Finally, to the extent we have not addressed any arguments raised by B.S.,

we conclude they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                          A-0500-17T3
                                        9