J.C. v. NEW JERSEY STATE PAROLE BOARD

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                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3174-16T1

J.C.,

        Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

     Respondent.
___________________________________

              Argued March 6, 2018 – Decided March 22, 2018

              Before Judges Yannotti and Mawla.

              On appeal from the New Jersey State Parole
              Board.

              Michael C. Woyce argued the cause for
              appellant (Murphy & Woyce, attorneys; Michael
              C. Woyce, on the briefs).

              Gregory R. Bueano, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal,   Attorney  General,  attorney  for
              respondent; Melissa H. Raksa, Assistant
              Attorney General, of counsel; Gregory R.
              Bueano, on the brief).

PER CURIAM

        J.C. appeals from a March 29, 2017 final decision of the New

Jersey      Parole    Board    (Board)     denying     his   request     to   have
unsupervised visitation and reside with his minor children.                       We

affirm.

       We derive the following facts from the record.                 J.C. is a

convicted sex offender who was sentenced to Parole Supervision for

Life ("PSL") under Megan's Law, 
N.J.S.A. 2C:43-6.4.             Specifically,

J.C. was convicted of one count of second-degree sexual assault,


N.J.S.A. 2C:14-2(c)(4), and two counts of third-degree endangering

the welfare of a child, 
N.J.S.A. 2C:24-4(a).

       In April 2009, the local police department and the Burlington

County Prosecutor's Office investigated allegations that J.C. had

sexually    assaulted   his    nieces,      B.T.,   A.P.,     and   A.T.        The

investigation revealed J.C. had engaged in sexually inappropriate

conduct with the victims while they were between the ages of twelve

and fifteen. B.T. informed investigators that when she was twelve,

she fell asleep at J.C.'s house while babysitting his children.

She awoke to J.C. touching her breasts under her shirt.               B.T. also

told   investigators    that   after       this   incident,    J.C.   digitally

penetrated her vagina on at least twenty-five occasions.

       A.P. reported while she was sleeping at J.C.'s residence, he

climbed into bed with her and touched her arms and back under her

shirt, and attempted to touch her breasts.                  A.T. reported two

instances of inappropriate touching, which occurred after she had

fallen asleep at J.C.'s residence.           The first time, A.T. awoke to

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find J.C. in bed with her, fondling her stomach, arms, legs, and

breasts under her clothing.   When A.T. tried to pull away, J.C.

told her, "You need to stay away from me, I can't control myself."

The second time, J.C. inappropriately touched her stomach and

legs.

     After J.C. entered his guilty plea, he was sentenced to three

years' imprisonment.   The court also imposed PSL as part of his

sentence.   
N.J.S.A. 2C:43-6.4(b) requires the Board to supervise

persons sentenced to PSL "subject to conditions appropriate to

protect the public and foster rehabilitation."      J.C. was also

adjudged to be a repetitive and compulsive sex offender, and thus

confined to the Adult Diagnostic and Treatment Center (ADTC) in

Avenel.

     In May 2014, J.C. was released from prison and was thereafter

subject to PSL. According to the terms of PSL applicable to sexual

offenders against minors, an offender must refrain from residing

with a minor without the prior approval of his parole officer.     As

a result, J.C. has been and continues to be forbidden from residing

with minors, including his three minor children.1




1
  For purposes of PSL, "residing" with minors includes "[s]taying
overnight at a location where a minor is present . . . ." N.J.A.C.
10A:71-6.12(e)(3).

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     In September 2014, J.C. expressed a desire to begin residing

with his wife and children.        J.C.'s parole officer informed him

of the process he would need to follow in order for the Board to

grant him living with children (LWC) privileges.              Pursuant to

these    instructions,   J.C.   entered   sex   offender   treatment    with

MaryAnne Giello, MSS, LCSW, who agreed to assist him with the LWC

evaluation process.      Giello conducted an LWC evaluation of J.C.

over five non-consecutive days.

     While on PSL supervision, J.C.'s parole officer suspected he

had not been spending every night at his approved residence.              In

February 2015, the Board administered a maintenance polygraph

examination, and J.C. admitted he had fallen asleep numerous times

at his wife and children's residence.             As a result, J.C. was

referred to the Board's electronic monitoring program, which he

completed in October 2015.

     In April 2016, Giello submitted J.C.'s LWC evaluation to the

Board.    She recommended the Board allow J.C. unsupervised visits

with his children, and eventually transition him to overnight

visitation.    Giello noted J.C. had "denie[d] an ongoing attraction

to adolescent females and children" and found him to be a low-to-

moderate risk offender.

     J.C.'s    parole    officer   reviewed     Giello's   evaluation    and

recommended the LWC privileges be denied.         In June 2016, Assistant

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District Parole Supervisor Attaa Alston reviewed J.C.'s case and

concurred with the parole officer's findings.                    Alston noted a

concern that J.C.'s daughters were unaware of why their father no

longer lived with them, which Alston found troubling because J.C.'s

daughters were similar in age to J.C.'s victims at the time of the

assaults.     Alston was also alarmed by J.C.'s comments during an

interview that boundaries in his household were "loose" and "lines

'often blurred.'"      Alston concluded it would be inappropriate for

J.C. to reside at home with his children because the assaults

against his nieces occurred while they were asleep.

     When J.C. received Alston's denial, he sought an addendum to

Giello's evaluation to address Alston's concerns regarding his

daughters' lack of awareness of J.C.'s crimes.               Giello submitted

an addendum based on a June 2016 interview with J.C.'s daughters.

The addendum reported J.C.'s daughters understood J.C. had touched

their   cousins    "inappropriately,"       and     if    J.C.    touched    them

inappropriately, they would report it to a responsible adult.

Giello also reported J.C.'s daughters expressed an interest in

reunification     with   their   father.       J.C.'s      wife    submitted    a

certification     to   the   Board   in   support    of   awarding    J.C.    LWC

privileges.

     In November 2016, J.C. requested LWC privileges.                       J.C.'s

parole officer interviewed J.C.            The parole officer expressed

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concern over the stability of J.C.'s marriage because his wife had

engaged in a romantic relationship during their separation, only

to reconcile with J.C. not long before the interview.             The parole

officer also noted Giello's report indicated J.C. wanted to have

a stable, monogamous relationship with a woman, and did not believe

reconciling with his wife was in his best interest "due to her

erratic and unreliable behavior."

      In December 2016, J.C.'s Parole Officer Marcy Szebenyi and

Sergeant Ken Ward interviewed J.C. and his wife.                 Contrary to

Giello's finding that J.C. had only expressed interest in adult

females, J.C. informed Szebenyi and Ward he felt sexual attraction

to adolescent females, specifically, thirteen year-old females.

Ward also noted J.C.'s wife did not have a complete understanding

of   his   crimes,   did   not   believe   her   husband   was   capable    of

assaulting their daughters, and failed to present an adequate

safety plan for her daughters.

      On December 15, 2016, District Parole Supervisor Stephens

issued a decision denying J.C.'s request for LWC privileges,

reasoning that:

                 [J.C.] was classified during his ADTC
                  evaluation as a repetitive and compulsive
                  offender;

                 [J.C.'s] daughters [eleven to twelve
                  years old] are the same index age and
                  gender as his victims, who were [twelve

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                     to thirteen] years old at the time the
                     offenses began;

                    [J.C.'s] offenses were  incestu[ous]
                     [sic] in nature (victims were his
                     nieces);

                    Responses provided by [J.C.] during [the
                     December 2016] interview with parole
                     personnel     indicate    a     continued
                     attraction towards [thirteen]-year old
                     females (as well as adult females);
                     [J.C.] also admitted that one of the
                     reasons he committed his offenses against
                     his victims was due to having the
                     opportunity to do so while the victims
                     were staying/sleeping over [at] his
                     residence;

                    Responses provided by [J.C.'s wife]
                     during [the December 2016] interview with
                     parole personnel indicate a lack of full
                     understanding of the totality of [J.C.'s]
                     offenses against his victims and an
                     inability to demonstrate an appropriate
                     safety plan in the event one of her
                     children ever approached her with a claim
                     of inappropriate behavior on the part of
                     [J.C.].

     J.C. appealed Stephens' determination to a Board Panel, which

affirmed the decision to deny LWC privileges.              J.C. then appealed

the Board Panel's decision to the full Parole Board, which issued

a final decision affirming the denial of LWC privileges.                     This

appeal followed.

     On appeal, J.C. argues he was deprived of procedural due

process by the Board.         J.C. also challenges the Board's decision,

arguing   the       denial   of   LWC   privileges   was   tantamount   to   the

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deprivation of his fundamental due process right to rear his

children.

      We begin by reciting our standard of review. Appellate review

of   parole       determinations    "focuses      upon     whether     the    factual

findings made by the Parole Board could reasonably have been

reached on sufficient credible evidence in the record."                      Trantino

v. N.J. State Parole Bd., 
166 N.J. 113, 199 (2001) (citing Trantino

v. N.J. State Parole Bd., 
154 N.J. 19, 24 (1998)).                    "This limited

scope of review is grounded in strong public policy concerns and

practical realities."        Id. at 200.

      "To     a    greater   degree       than    is     the   case    with     other

administrative        agencies,     the    Parole      Board's    decision-making

function involves individualized discretionary appraisals."                         Id.

at 201 (citing Beckworth v. N.J. State Parole Bd., 
62 N.J. 348,

358-59 (1973)).         This court "may overturn the Parole Board's

decisions only if they are arbitrary and capricious."                           Ibid.

"Arbitrary and capricious action of administrative bodies means

willful     and    unreasoning     action,     without    consideration       and    in

disregard     of    circumstances."           Ibid.    (quoting   Worthington        v.

Fauver, 
88 N.J. 83, 204 (1982)).

      "[A] reviewing court is obligated to 'determine whether [the

Board's] factual finding could reasonably have been reached on

sufficient credible evidence in the whole record.'"                     Id. at 172

                                          8                                   A-3174-16T1
(quoting Trantino, 
154 N.J. at 24).               "A strong presumption of

reasonableness         attaches   to     the   actions    of     administrative

agencies."      In re Vey, 
272 N.J. Super. 199, 205 (App. Div. 1993).

"The   burden     of    showing   the    agency's    action     was    arbitrary,

unreasonable or capricious rests upon the appellant."                  Bowden v.

Bayside State Prison (Dep't of Corr.), 
268 N.J. Super. 301, 304

(App. Div. 1993).

       As    noted,     J.C.   argues     he   was   denied      due    process.

Specifically, he contends the PSL conditions that bar him from

having unsupervised contact or residing with his children are

arbitrary and capricious as applied to him because they violate

his fundamental right to raise his children.             He asserts the Board

did not consider his children's best interests.                  He also argues

the Board's decision is not adequately supported by the record.

       The PSL conditions barring sex offenders who committed their

crimes      against    children   from   having   contact      with   minors   are

authorized by the PSL statute, 
N.J.S.A. 2C:43-6.4, and set forth

in N.J.A.C. 10A:71-6.12(e) as follows:

              If the victim(s) of an offense . . . is a
              minor, an offender serving a special sentence
              of parole supervision for life shall . . . be
              subject to the following conditions.      The
              offender shall:

              1. Refrain from initiating, establishing, or
              maintaining contact with any minor;


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    2. Refrain from attempting to initiate,
    establish, or maintain contact with any minor;
    and

    3. Refrain from residing with any minor
    without the prior approval of the District
    Parole      Supervisor     or     designated
    representative.     Staying overnight at a
    location where a minor is present shall
    constitute residing with any minor for the
    purpose of this condition.

Furthermore, N.J.A.C. 10A:72-2.6(b) states:

    If an offender serving a special sentence of
    community or parole supervision for life
    requests approval from the District Parole
    Supervisor or designee to initiate, establish,
    or maintain unsupervised contact with a minor
    child, the parent or legal guardian of the
    minor child shall be required to provide to
    the District Parole Office a written statement
    requesting that the offender be permitted to
    initiate, establish, or maintain unsupervised
    contact with the minor child. The statement
    shall include an acknowledgment by the parent
    or legal guardian that the parent or legal
    guardian is familiar with the circumstances
    of the sexual offense committed by the
    offender. For the purpose of this subsection,
    the parent or legal guardian of the minor
    child shall be a person other than the
    offender.

In addition, N.J.A.C. 10A:72-2.6(c) states:

    An offender requesting to initiate, establish,
    or maintain unsupervised contact with a minor
    child shall be required to submit for
    consideration    by   the    District   Parole
    Supervisor or designee the written assessment
    from a sex offender treatment provider
    designated by the District Parole Supervisor
    or designee who has assessed the offender and
    the request by the offender to initiate,

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           establish, or maintain unsupervised contact
           with a minor child.     The assessment shall
           include, but not be limited to:

           1. A statement as to the assessed level of
           risk posed by the offender to the minor child;

           2. A statement as to whether or not the
           offender    initiating,  establishing,  or
           maintaining unsupervised contact with the
           minor child is conducive to the offender's
           relapse prevention plan;

           3. A statement as to the appropriateness of
           informing the minor child of the circumstances
           of the sexual offense committed by the
           offender; and

           4. The recommendation of the evaluator as to
           the   appropriateness    of   the    offender
           initiating,   establishing,  or   maintaining
           unsupervised contact with the minor child.

     Thereafter, "the District Parole Supervisor or designee shall

evaluate the matter and determine whether the offender shall be

permitted to initiate, establish, or maintain unsupervised contact

with the minor child." N.J.A.C. 10A:72-2.6(d). After the district

parole   supervisor   or    designee    has   rendered   a   decision,   the

supervisor or designee "shall notify the offender in writing of

the decision and the basis for the decision.        The decision and the

basis for the decision shall also be recorded in the chronological

supervision report."       N.J.A.C. 10A:72-2.6(e).       Substantially the

same procedure applies for requests to reside with a minor child.

See N.J.A.C. 10A:72-2.5.


                                   11                               A-3174-16T1
     We are satisfied the Board complied with the aforementioned

statutory and regulatory process, and J.C. was not deprived of

procedural due process.     Indeed, a parole officer informed J.C.

about the LWC process.    J.C. underwent sex offender treatment, was

evaluated for LWC privileges, and the Board considered Giello's

LWC evaluation.   The Board also considered the request from J.C.'s

wife to allow him to have unsupervised visitation privileges and/or

permission to reside with his minor children pursuant to N.J.A.C.

10A:72-2.6(b).

     After    Alston     indicated     he    would   reject    Giello's

recommendation, J.C. sought an addendum to the recommendation,

which Giello provided.     The Board evaluated this new information

when it considered J.C.'s request for LWC privileges.         The Board

then conducted two interviews with J.C., the latter of which

included his wife.     When the district parole supervisor issued an

unfavorable   determination,    J.C.   was   afforded   two   levels    of

administrative review: first before a Board Panel, and then before

the full Board, which issued a final agency decision.

     Though J.C. did not appear before the Board for an evidentiary

hearing, there is no requirement a PSL offender must be afforded

a hearing to challenge a condition of supervision whenever the

condition has a substantial impact upon a liberty interest.            See

J.I. v. N.J. State Parole Bd., 
228 N.J. 204, 233-34 (2017) (holding

                                  12                             A-3174-16T1
"'[t]he balance of interests weighs in favor of giving a supervised

offender the opportunity to respond in a meaningful way to' a

near-total or absolute Internet ban imposed more than a year after

the offender's release from confinement," but declining to extend

the mandate of a hearing to every PSL offender whenever a condition

of supervision substantially impacts a liberty interest).

     The record shows J.C. was afforded ample due process and

multiple layers of administrative review.            He was informed of the

process to obtain LWC.       He was interviewed by his parole officer.

He was afforded the ability to adduce evidence in support of his

request.        When the evidence he provided was challenged, he was

permitted the ability to obtain supplemental proofs.                   The Board

engaged    in    a   deliberative   process   when     it    considered     J.C.'s

request.        Contrary to J.C.'s claims, there were no "secret"

evidence or proceedings.       We reject J.C.'s contention that he was

denied due process.

     We also reject J.C.'s argument that the Board's decision

violated his right to parent his children.                   The right to rear

one's children is a fundamental right protected by the Due Process

Clause     of    the   Fourteenth    Amendment    to        the   United    States

Constitution.        Wisconsin v. Yoder, 
406 U.S. 205, 232-33 (1972).

This right, however, is not absolute.            Id. at 230.         The Supreme

Court of the United States "ha[s] recognized that a state is not

                                      13                                   A-3174-16T1
without constitutional control over parental discretion in dealing

with children when their physical or mental health is jeopardized."

Parham v. J.R., 
442 U.S. 584, 603 (1979).         "[T]he state has a wide

range of power for limiting parental freedom and authority in

things affecting the child's welfare[.]"      Prince v. Massachusetts,


321 U.S. 158, 167 (1944).

     "[W]hen the State seeks, by statute, to interfere with family

and parental autonomy, a fundamental right is at issue.                 That

statute thus is subject to strict scrutiny and will only pass

muster if it is narrowly tailored to serve a compelling state

interest."   Moriarty v. Bradt, 
177 N.J. 84, 103 (2003) (citing

Washington v. Glucksberg, 
521 U.S. 702, 720-21 (1997)).

     Our   legal   system   "emphasize[s]   the    inviolability   of   the

family unit, noting that '[t]he rights to conceive and to raise

one's children have been deemed "essential," . . . "basic civil

rights of man," . . . and "[r]ights far more precious . . . than

property rights" . . . .'"     N.J. Div. of Youth & Family Servs. v.

A.W., 
103 N.J. 591, 599 (1986) (alterations in original) (quoting

Stanley v. Illinois, 
405 U.S. 645, 651 (1972)).           "The interests

of parents in this relationship have thus been deemed fundamental

and are constitutionally protected."        Ibid.    "On the other hand,

it has been recognized 'that a state is not without constitutional

control over parental discretion in dealing with children when

                                  14                               A-3174-16T1
their physical or mental health is jeopardized.'"                 Ibid. (quoting

Parham v. J.R., 
442 U.S. at 603).

     As a convicted sex offender serving a PSL term, J.C.'s

constitutional rights are circumscribed.                 See, e.g., Samson v.

California, 
547 U.S. 843 (2006); United States v. Knights, 
534 U.S. 112 (2001).      "The State . . . has an 'overwhelming interest'

in ensuring that a parolee [is supervised] . . . [because parolees]

are more likely to commit future criminal offenses . . . ."                      Pa.

Bd. of Prob. & Parole v. Scott, 
524 U.S. 357, 365 (1998).                           A

State's   interests    in    reducing       recidivism    among    parolees      may

warrant privacy intrusions that would not otherwise be tolerated

under the Fourth Amendment.          See Knights, 
534 U.S.  at 121.

     Here, the State's compelling interest in preventing J.C. from

having    unsupervised      or    overnight    visitation    with    his      minor

children is borne of its interest in preventing recidivism.                      The

Board denied J.C.'s request to grant LWC privileges because it

determined the children would be exposed to danger if they had

unsupervised contact or resided with J.C.           Neither the statute nor

the applicable regulations require the Board to engage in a "best

interests of the child" analysis in order to adjudicate J.C.'s

request for LWC.

     Moreover, J.C. was not deprived of the right to raise his

children;   rather    he    was   restrained     from    residing    with     them.

                                       15                                   A-3174-16T1
Although residing with children may be the better approach for

rearing them, a restraint on unsupervised or overnight contact

with one's children is not essential to the right to parent.    The

denial of LWC was based on the specific evidence before the Board

underlying defendant's convictions, and more current evidence his

proclivities had not abated, which continued to place his children

at risk.

     The Board considered and evaluated all of the evidence in

depth and at length.     Its denial of J.C.'s request for LWC

privileges was supported by the substantial credible evidence in

the record and was not arbitrary, capricious, or unreasonable.

     Affirmed.




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