Department of Children and Families v. D.B. & A.G. ( 2015 )


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  •                        RECORD IMPOUNDED
    
                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
    
                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5434-12T3
                                                  A-0276-13T3
    
    DEPARTMENT OF CHILDREN AND
    FAMILIES, INSTITUTIONAL
    ABUSE INVESTIGATION UNIT,
    
             Respondent,
    
    v.
    
    D.B.,
    
              Appellant.
    _________________________
    
    DEPARTMENT OF CHILDREN AND
    FAMILIES, INSTITUTIONAL
    ABUSE INVESTIGATION UNIT,
    
             Respondent,
    
    v.
                                          APPROVED FOR PUBLICATION
    
    A.G.,                                     OCTOBER 20, 2015
    
              Appellant.                     APPELLATE DIVISION
    _________________________
    
    
             Argued May 19, 2015 – Decided July 29, 2015
    
             Before Judges Reisner, Koblitz and Currier.
    
             On appeal from New Jersey Department of
             Children and Families, Institutional Abuse
             Investigation Unit, Intake ID: 17589252 and
             17717832.
              Louis P. Bucceri argued the cause for
              appellant D.B. (Bucceri & Pincus, attorneys;
              Mr. Bucceri, of counsel and on the briefs).
    
              Albert J. Leonardo argued the cause for
              appellant A.G. (Bucceri & Pincus, attorneys;
              Mr. Leonardo, of counsel and on the briefs).
    
              Salima   Burke,  Deputy   Attorney  General,
              argued the cause for respondent (John J.
              Hoffman, Acting Attorney General, attorney;
              Andrea M. Silkowitz, Assistant Attorney
              General, of counsel; Lori J. DeCarlo, Deputy
              Attorney General, on the briefs).
    
    
          The opinion of the court was delivered by
    
    KOBLITZ, J.A.D.
    
          We consolidate these two appeals for the purpose of writing
    
    one opinion.      Defendant A.G., a teacher's aide for an autistic
    
    child, appeals from an August 14, 2013 findings report issued by
    
    the   Institutional    Abuse   Investigation     Unit   (IAIU)    of    the
    
    Department   of   Children   and   Families   (Department).      Defendant
    
    D.B., an elementary school art teacher, appeals from an amended
    
    August 1, 2013 IAIU findings report.           Both defendants contest
    
    the validity of N.J.A.C. 10:129-7.3, upon which the Department's
    
    findings were based.
    
          D.B. and A.G. both seek to have the Department's findings
    
    letter changed from "not established" to "unfounded."            We affirm
    
    the findings of "not established," but reverse and remand for
    
    
    
    
                                         2                            A-5434-12T3
    the Department to issue new reports in conformity with the clear
    
    directions we have previously provided to the agency.
    
                                            A.G.
    
           We first summarize the factual information with regard to
    
    each    defendant     separately,       beginning      with   A.G.       A.G.   was
    
    employed by the Paterson public schools for twenty-nine years.
    
    On May 16, 2013, the Department received a referral from the
    
    principal stating that the prior day the teacher of a class of
    
    students with learning disabilities saw A.G. hit five-year-old
    
    Joey1 multiple times on his arm with her open hand.                      Joey had
    
    been diagnosed as autistic.
    
           From   May    to    July   the   IAIU   investigator     interviewed     the
    
    following parties: A.G.; the reporting teacher; two adults who
    
    were in the classroom at the time; the principal; the school
    
    nurse; Joey; Joey's mother; and six of Joey's classmates.                       The
    
    investigator        also    received     copies   of    notes    taken    by    the
    
    principal as well as a May 15, 2013 account of the incident
    
    written by the teacher; a May 16, 2013 account written by A.G.;
    
    and a May 16, 2013 employee incident report written by A.G. and
    
    the principal.
    
           On May 16, 2013, A.G. wrote that:
    
    
    1
      We use initials for the parties and fictitious names for the
    children to preserve their privacy.
    
    
    
                                              3                               A-5434-12T3
             Yesterday at 1:00 p.m. when [we] were doing
             the math [Joey] was very upset when [a
             classmate, "Ana"] s[a]t next to another
             student.    [Joey] doesn't want[] [anyone]
             near to [Ana] so he was very ag[g]ressive
             and he started hit[t]ing so I was protecting
             the other[] students.   He hit me . . . in
             the face and scratched me in the right side
             of my face and left side of my hand.    [The
             teacher] was next to me.    [H]e was kicking
             the chair so I was holding his hands[.]    I
             told him that he needs to respect, that he
             needs to stop and that he needs to do his
             work, then he [did] wash his face and
             hands[.]   I was with him, then he did his
             work (test).
    
        The classroom teacher wrote in her May 15 statement that:
    
             [Joey] did not want to complete his class
             work and was acting out: screaming and
             trying to run out of the classroom. When he
             transitioned to [A.G.'s] group she tried
             prompting him to complete his work but he
             did not comply.      He threw the classroom
             materials from the table and ripped a test
             paper that was in front of him. When [A.G.]
             asked him to work, [Joey] scratched her
             face. At this point, [A.G.] started to hit
             [Joey] repeatedly and stating "You are not
             going to scratch me" and "You need to have
             respect".   The incident was reported to the
             building administrator[.]
    
        When interviewed by the investigator on June 14, 2013, the
    
    teacher asserted the following.       A.G. hit Joey four times.    She
    
    estimated that on a scale of one to ten, with one being the
    
    softest and ten being the hardest, A.G. struck Joey using a
    
    force of five to six.   She had previously witnessed A.G. pinch
    
    or press on a student's neck in order to make the student sit
    
    
    
    
                                      4                          A-5434-12T3
    down.      Joey's   behavior   had   improved   dramatically     after    the
    
    termination of A.G.
    
        According to the principal's notes, the reporting teacher
    
    brought Joey to the office.
    
                Due to [Joey's] disability, it is difficult
                to understand what he is saying.    However,
                the teacher showed him the class picture and
                had him identify the students and teachers.
                When he pointed to [A.G.] he was able to say
                [A.G.'s last name].    He was then asked if
                she had hurt him.    He said yes and touched
                his mouth.   He also brought his foot up to
                his cheek.   He was again asked if she had
                hurt him.     However, he was not able to
                respond or elaborate on what had happened.
                [The teacher] was not sure if and when he
                had been hit in the areas shown because it
                was not what she had seen in the particular
                incident.
    
        Joey's     mother,     L.N.,   informed   the   investigator   of     the
    
    following.    She noticed a bruise on Joey's face in April 2013,
    
    and Joey stated that a teacher did it, although he did not
    
    identify the teacher.          She had had no concerns about Joey's
    
    safety at the school prior to April 2013.            She had photographed
    
    and videoed Joey's bruise, and in the video Joey responds to
    
    questioning about how he had been bruised, without indicating
    
    who was involved.
    
        The investigator tried to interview Joey, but he replied
    
    "Sponge Bob" and shut his eyes when asked about a classroom
    
    incident    with    A.G.    The    instructional    assistant   claimed    he
    
    
    
    
                                          5                            A-5434-12T3
    witnessed Joey run out of the classroom after which he had to be
    
    brought back in and seated by a teacher and himself; Joey began
    
    to knock items down; he heard Joey and A.G. scream, but did not
    
    see   Joey    scratch   A.G.    nor   see   any    marks    on     Joey.     The
    
    instructional assistant also stated that although A.G. could be
    
    loud and aggressive in her tone of voice, he never witnessed her
    
    hit a student.
    
          The investigator interviewed the substitute and the school
    
    nurse who examined both A.G. and Joey.              They did not see any
    
    marks on Joey or marks on A.G.'s face, although A.G. had a small
    
    scratch on her hand.      Six of Joey's classmates said they had not
    
    seen A.G. hit Joey.
    
          A.G.   was   terminated   effective    May    31,    2013.      The   IAIU
    
    embodied its findings report in three separate letters dated
    
    August 14, 2013.        The letters were sent to the state district
    
    superintendent, A.G., and Joey's mother.
    
          Each of the three letters included the following text:
    
                 Investigative findings
    
                 Physical Abuse/Substantial Risk of Physical
                 Injury/Environment Injurious to Health and
                 Welfare is not established, in accordance
                 with N.J.S.A. 9:6-8.21.      No adjudicative
                 findings    have    been   made,   as    the
                 Institutional Abuse Unit's review herein is
                 solely investigative.
    
    
    
    
                                          6                                A-5434-12T3
             Not established findings are not disclosed
             in a Child Abuse Registry Check but are
             maintained in agency records.
    
        The letters to the district superintendent and to Joey's
    
    mother continued under the heading "Investigative Observations":
    
             [Joey,]   age   [five,]   had  no   observable
             injuries.     On May 16, 2013, [Joey] was
             examined by the school nurse.     The results
             of the investigation indicate that [Joey]
             was yelling and throwing papers in class.
             An adult witness observed [A.G.] smack
             [Joey] on the hand. [A.G.] denied that she
             smacked [Joey.]     [A.G.] admitted that she
             put her hand over [Joey's] hand after he
             scratched her.     It should be noted that
             [Joey] manifested a bruise under his eye in
             April   2013.      However,   there   was   no
             information to support that [A.G.] caused
             the injury.
    
             Based upon the information gathered and
             physical observations of the child, [Joey]
             is not an abused child as defined by
             statute.   However, the information gathered
             indicates that [Joey] was harmed or placed
             at risk of harm by virtue of the incident.
    
        Additionally,   each     letter   included   a   "Confidentiality
    
    Statement" providing that:
    
             [T]he    results     of    the     Department's
             investigation,      including       identifying
             information,    are     maintained    in    the
             Department's files and can only be disclosed
             as set forth in N.J.S.A. 9:6-8.10a.          In
             accordance with the statute, however, we can
             release     the     findings      report     to
             administration to help ensure that proper
             care, treatment or supervision is provided,
             not only to the specific child or children
             involved here, but to all children under the
             care and supervision of the above referenced
    
    
    
                                      7                          A-5434-12T3
                facility. These reports may be used by any
                person or entity conducting a disciplinary,
                administrative or judicial proceeding to
                determine terms of employment of an officer,
                employee or volunteer with an agency or
                organization providing services to children.
    
                                               D.B.
    
        On April 24, 2013, the Department received a referral from
    
    the principal of a public elementary school in Paterson.                              The
    
    principal    reported         that   Larry,     a     six-year-old     student,     said
    
    D.B., the child's art teacher, grabbed Larry’s arm and scratched
    
    the child earlier that day.                Over the following three weeks two
    
    investigators from the IAIU interviewed the following parties:
    
    Larry;   D.B.;     the   principal;        five       of   Larry’s    classmates;     the
    
    school nurse; the school security officer; and Larry’s mother.
    
    An investigator also took photographs of Larry’s arm on the day
    
    of the referral.
    
        When     the    principal        was    interviewed        that    same    day,    he
    
    explained that earlier in the morning Larry showed him a linear
    
    red mark caused by D.B. scratching him.                         The principal also
    
    stated that, although students regularly complained about D.B.,
    
    this was the first time he saw a raised mark on a child in
    
    connection    with       an    incident.            Additionally,      the    principal
    
    indicated that he had prior concerns about D.B.'s failure to
    
    properly     maintain     control      of       her    students,      asserting     that
    
    
    
    
                                                8                                  A-5434-12T3
    students      in   D.B.'s       classroom   would   run    around    and   hit    each
    
    other.
    
        Shortly after interviewing the principal, an investigator
    
    interviewed        Larry    in    the   presence    of   the    principal.       Larry
    
    stated that D.B. had sent him to the security guard because he
    
    and a classmate were laughing while refusing to stay seated.
    
    The security guard then sent him back into the classroom.                        When
    
    Larry returned to the classroom, he refused to sit down when
    
    asked to do so by D.B., which led to D.B. scratching him on his
    
    right arm.         After Larry was scratched he went back out to the
    
    security guard with a classmate, at which time he showed the
    
    guard his arm and was then directed to the school nurse.                         Larry
    
    conceded that he did not always listen to D.B.'s instructions
    
    during class.
    
        An investigator interviewed Larry's mother, who stated that
    
    Larry had informed her about his injury.                       Larry told her that
    
    his teacher grabbed and scratched his arm when he did not comply
    
    with her instruction to sit down in class.
    
        An investigator also interviewed D.B., who explained that
    
    she saw Larry throwing a chair at a student, but did not touch
    
    Larry    at    all.         A     "Parent   Conference         Request/Modification
    
    Report," written by D.B., detailed Larry’s conduct in her class
    
    on the date of the incident.                    The Report stated that Larry
    
    
    
    
                                                9                                A-5434-12T3
    called another student names, refused to sit down, ran around
    
    the classroom, and threw a chair.
    
           The school nurse, who examined Larry's arm, observed three
    
    faint reddish marks on Larry's arm, which disappeared after the
    
    application        of    ointment.             An     investigator         reviewed      the
    
    "Individual        Student    Health     Log,"       which   documented      the    school
    
    nurse's examination of Larry on the referral date.
    
           The    investigators          also      interviewed          five    of      Larry’s
    
    classmates.        Three children stated that Larry threw a chair, and
    
    D.B.   then    grabbed       him   by    the    arm    and    removed      him    from   the
    
    classroom.         The two other children gave completely divergent
    
    accounts.      The security guard stated that D.B. called her to the
    
    classroom after which she brought Larry to the nurse.
    
           In    three      separate     letters,         the    IAIU    communicated        its
    
    findings to D.B., the state district superintendent, and Larry’s
    
    mother.       After counsel for D.B. wrote to IAIU seeking certain
    
    changes,      on    August    1,    2013    the      IAIU    sent    amended      findings
    
    letters to D.B. and the superintendent.                        The finding of "not
    
    established" remained unchanged.
    
           Each of the August 1, 2013 amended letters included the
    
    following      text      under     the     heading      "Investigative           Findings":
    
    "Physical      Abuse/Cuts,         Bruises,         Welts    and    Abrasions      is    not
    
    established        in     accordance        with       N.J.S.A.      9:6-8.21.             No
    
    
    
    
                                                10                                     A-5434-12T3
    adjudicative findings have been made.                The Institutional Abuse
    
    Unit's review herein is solely investigative."                Furthermore, the
    
    "Investigative Findings" section of the amended letters recited
    
    that, "Not established findings are not disclosed in a Child
    
    Abuse   Registry   Check   []    but    they    are   maintained    in    agency
    
    records."
    
        The August 1, 2013 amended letters further stated under the
    
    heading "Investigative Observations" that:
    
                [Larry] age [six], was examined by the
                school nurse who noted three faint red marks
                on [Larry’s] right arm.     It was reported
                that [D.B.] grabbed and scratched [Larry] on
                his right arm.    Four witnesses interviewed
                reported that [D.B.] made physical contact
                with [Larry’s] right arm.    When interviewed
                [D.B.] denied grabbing [Larry’s] arm.
    
                Based upon the interviews and physical
                observations of the child, [Larry] is not an
                abused or neglected child as defined by
                statute. The information gathered indicates
                that [Larry] was harmed or placed at risk of
                harm by virtue of the incident.
    
        Each     amended    letter    also       included    a    "Confidentiality
    
    Statement" identical to the one included in the letters sent
    
    concerning A.G.
    
        In a memorandum dated June 14, 2013, which had attached
    
    IAIU's June 3, 2013 findings letter to the superintendent, the
    
    principal    informed   D.B.     that    due    to    the    district's     "zero
    
    tolerance policy approach to teachers possibly causing harm to
    
    
    
    
                                            11                               A-5434-12T3
    students,"        the         principal       had      recommended       "additional
    
    disciplinary actions ranging from suspension to tenure charges."
    
    The same day the superintendent sent D.B. a letter stating that
    
    "due to conduct unbecoming," the district would withhold D.B.'s
    
    salary increment for the 2013-2014 school year.
    
                                               I
    
         Both A.G. and D.B. argue that, "IAIU's findings that the
    
    child 'was harmed or placed at risk of harm' constitutes an
    
    adjudication and not a mere investigatory finding.                          [A.G. and
    
    D.B.] further contend[] that the procedures followed by IAIU in
    
    this case are violative of the due process safeguards ordered by
    
    this court in its prior decisions."
    
         The     Department         asserts    that       N.J.A.C.    10:129-7.3(c)(3),
    
    effective    April       1,    2013,   does     not    violate     the   Due   Process
    
    Clause, and the "promulgation of this regulation is authorized
    
    by   statute       and        consistent       with     the      agency’s      mandated
    
    responsibilities under Title Nine, N.J.S.A. 9:6-8.21 to -8.73."
    
         "It     is     settled        that    '[a]n        administrative         agency's
    
    interpretation          of     statutes       and      regulations       within      its
    
    implementing and enforcing responsibility is ordinarily entitled
    
    to our deference.'"            Wnuck v. N.J. Div. of Motor Vehicles, 
    337 N.J. Super. 52
    , 56 (App. Div. 2001) (quoting In re Appeal by
    
    Progressive Cas. Ins. Co., 
    307 N.J. Super. 93
    , 102 (App. Div.
    
    
    
    
                                               12                                  A-5434-12T3
    1997)).      "Absent arbitrary, unreasonable or capricious action,
    
    the agency's determination must be affirmed."                        Ibid. (citing R &
    
    R   Mktg.,    L.L.C.    v.    Brown-Forman            Corp.,    
    158 N.J. 170
    ,    175
    
    (1999)).      "Although we recognize that deference is generally
    
    given to an administrative agency charged with interpretation of
    
    the   law,   we   are   not    bound    by      the    agency's       legal   opinions."
    
    Levine v. State, Dep't of Transp., 
    338 N.J. Super. 28
    , 32 (App.
    
    Div. 2001) (citing G.S. v. Dep't of Human Servs., 
    157 N.J. 161
    ,
    
    170 (1999)).      An agency's exercise of its statutorily delegated
    
    responsibilities        is    entitled       to       a     strong     presumption      of
    
    reasonableness     and       our   court     will         generally    defer    to    that
    
    agency's expertise and superior knowledge in the field.                          City of
    
    Newark v. Natural Res. Council, Dep't of Envtl. Prot., 
    82 N.J. 530
    , 539, cert. denied, 
    449 U.S. 983
    , 
    101 S. Ct. 400
    , 
    66 L. Ed. 2d
     245 (1980).
    
          N.J.S.A.     9:6-8.21(c)         provides           in   pertinent       part    the
    
    definition of an abused or neglected child as follows:
    
                 "Abused or neglected    child" means a child
                 less than 18 years of age . . . 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 . . . by unreasonably inflicting or
                 allowing   to    be   inflicted   harm,   or
                 substantial risk thereof, including the
                 infliction of excessive corporal punishment;
    
    
    
    
                                               13                                    A-5434-12T3
                or by any other acts of a similarly serious
                nature requiring the aid of the court[.]
    
        Only     conduct     that    is    "grossly   or    wantonly        negligent"
    
    constitutes failure to "exercise a minimum degree of care" under
    
    N.J.S.A. 9:6-8.21(c)(4).         G.S., supra, 157 N.J. at 178; L.A. v.
    
    N.J. Div. of Youth & Family Servs., 
    217 N.J. 311
    , 332 (2014).
    
    Not every harm or risk of harm is of such a serious nature to
    
    cause a child to become an abused or neglected child.                    Thus, it
    
    is not inconsistent to find that a child was placed at risk of
    
    harm and yet was not abused or neglected.
    
        On   April      1,   2013,   the    Department     adopted      a    framework
    
    providing    four    possible    findings    that      are   made       after   the
    
    Department evaluates the available information: "substantiated";
    
    "established"; "not established"; and "unfounded."
    
                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. 10:129-7.4 or substantiation is
                warranted based on consideration of the
                aggravating and mitigating factors listed in
                N.J.A.C. 10:129-7.5.
    
                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.
    
    
    
    
                                           14                                 A-5434-12T3
                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. 10:129-7.3(c).]
    
           After   completing      its    investigation,        the   Department     must
    
    "notify the alleged perpetrator and others of the outcome of its
    
    investigation."         In re Allegations of Sexual Abuse at E. Park
    
    High Sch., 
    314 N.J. Super. 149
    , 155 (App. Div. 1998).                        Pursuant
    
    to N.J.A.C. 10:129-7.3(d) "[a] finding of either established or
    
    substantiated shall constitute a determination by the Department
    
    that   a   child   is    an    abused    or     neglected    child    pursuant      to
    
    N.J.S.A. 9:6-8.21[,]" but only findings that are substantiated
    
    are    disclosed   for        the    purposes    of   a     child    abuse    record
    
    information check.        N.J.A.C. 10:129-7.7(a).
    
           If an allegation of abuse or neglect is substantiated, the
    
    accused has a right to request an administrative hearing within
    
    twenty days of notice of the finding.                 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
    
    
    
                                             15                                  A-5434-12T3
    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).       N.J.A.C.      10:129-8.1(b)           provides   that    "[t]he
    
    Department      shall       retain     each       record       which     contains        a
    
    substantiated,        established,      or       not    established      report,       as
    
    specified in N.J.A.C. 10:129-7.3."
    
          D.B. and A.G. argue that IAIU findings of "not established"
    
    violate due process when sent to other government agencies.                            In
    
    L.R., we explained that a person's due process rights are not
    
    violated when IAIU provides its findings to other government
    
    agencies, even though the agency has not found abuse or neglect.
    
    In re an Allegation of Physical Abuse Concerning L.R., 321 N.J.
    
    Super. 444, 460 (App. Div. 1999).
    
               Appellants also argue that they are entitled
               to an evidentiary hearing because DYFS[2]
               damaged their professional reputations by
               notifying parents and guardians of the
               alleged abused students and the Newark
               school    district   of    its  investigatory
               findings.          However,    we    rejected
    
    2
      DYFS, the Division of Youth and Family Services, is now known
    as the Division of Child Protection and Permanency, and is a
    division within the Department.
    
    
    
                                               16                                   A-5434-12T3
               substantially    the    same    argument    in
               [Allegations of Physical Abuse at Blackacre
               Academy, 
    304 N.J. Super. 168
    , 184-85 (App.
               Div. 1997)].       Although the New Jersey
               Constitution extends due process protection
               to personal reputation, "without requiring
               any other tangible loss," Doe v. Poritz, 
    142 N.J. 1
    , 104 (1995), this does not mean that
               a liberty interest is implicated anytime a
               governmental agency transmits information
               that may impugn a person's reputation.
               DYFS' transmittals of investigatory findings
               to the parents and guardians of alleged
               abused students and the school district
               constituted a significantly more limited
               dissemination of adverse information than
               the notifications concerning the presence of
               Tier II and III sex offenders in a community
               which the Court in Doe found to require due
               process protections.     142 N.J. at 103-07.
               Moreover,   a   finding   that   child   abuse
               allegations have not been substantiated but
               that   DYFS   has    nevertheless    expressed
               "concerns" about a person's conduct is
               intrinsically less damaging to reputation
               than a finding that child abuse charges have
               been "substantiated" or that a person is a
               convicted sex offender.      Therefore, DYFS'
               limited dissemination of the results of its
               investigations did not cause the kind of
               damage to reputation which would entitle
               appellants to a hearing.
    
               [Ibid.]
    
        Although, in L.R. we were considering the finding of "not
    
    substantiated" under the prior framework of the N.J.A.C. 10:129-
    
    7.3(c),   our   reasoning   is   also   valid   when   considering   "not
    
    established" under the current N.J.A.C. 10:129-7.3(c)(3).
    
        In In re an Allegation of Physical Abuse Concerning R.P.,
    
    
    333 N.J. Super. 105
    , 113 (App. Div. 2000), we opined that:
    
    
    
                                       17                           A-5434-12T3
             "[D]ue process is flexible and calls for
             such    procedural    protections    as   the
             particular situation demands."     Thus, even
             if a person has a constitutionally protected
             interest, it does not automatically follow
             that   the   person  must   be   afforded  an
             opportunity for an adjudicatory hearing.
    
             [(internal citations omitted).]
    
    We continued, stating that, "A finding by [the Department] that
    
    child abuse charges have not been substantiated, but that there
    
    is some indication a child was harmed or placed at risk of harm,
    
    is purely investigatory in nature, with none of the procedural
    
    protections   of   an   adjudicatory   proceeding."     Id.   at    117
    
    (internal citation omitted).
    
        Similarly, we again reaffirmed this principal in the S.P.
    
    case providing that:
    
             [A]   teacher    is    not    entitled     to   an
             adjudicatory hearing to challenge a finding
             that   child    abuse    allegations     are   not
             substantiated, even when DYFS has expressed
             "concerns" about a teacher's conduct because
             such   a   finding    is   "intrinsically     less
             damaging to reputation than a finding that
             child      abuse      charges       have      been
             'substantiated.'"     "A finding by DYFS that
             child    abuse    charges     have     not    been
             substantiated,    but    that   there    is   some
             indication a child was harmed or placed at
             risk of harm, is purely investigatory in
             nature,    with   none     of   the    procedural
             protections of an adjudicatory proceeding."
    
             [N.J.   Dep't   of   Children   &   Families'
             Institutional Abuse Investigation Unit v.
             S.P., 
    402 N.J. Super. 255
    , 270 (App. Div.
             2008) (internal citations omitted).]
    
    
    
                                     18                           A-5434-12T3
           We did, however, find that teachers do have the right to
    
    challenge the wording of the findings of the Department, which
    
    we address later in this opinion.                         Id. at 270-71.      Thus, the
    
    notification-of-findings process of N.J.A.C. 10:129-7.3 does not
    
    constitute a violation of due process.
    
           D.B. and A.G. also assert that N.J.A.C. 10:129-8.1, which
    
    allows the Department to retain unproven accusations forever is
    
    a violation of N.J.S.A. 9:6-8.40a.                          As the case law clearly
    
    states,      the     interest        of    retaining      information     about   alleged
    
    claims of abuse, where some cause for concern is demonstrated,
    
    is    within       the    mandate         given    to    the   Department   to    protect
    
    children from abuse.                 The records retained for "substantiated"
    
    allegations are the only ones made public, thus D.B. and A.G.
    
    have a lesser due process right in regard to information kept
    
    for    the     use       of    the   agency        and    entities   involved     in    the
    
    protection of children.
    
                                                      II
    
           D.B. and A.G. also argue that the conclusion specified by
    
    IAIU as to their conduct is beyond the authority of the agency.
    
    They argue that the language in the findings letters sent to the
    
    superintendents           of    schools       is       conclusory,   in   violation      of
    
    established case law.
    
    
    
    
                                                      19                              A-5434-12T3
        Both D.B.'s and A.G.'s argument that the Department has
    
    exceeded   its   regulatory   authority    is   unpersuasive     and
    
    inconsistent with New Jersey case law.    We stated in L.R. that:
    
               "[T]he    grant     of  authority    to    an
               administrative agency is to be liberally
               construed in order to enable the agency to
               accomplish its statutory responsibilities
               and . . . the courts should readily imply
               such incidental powers as are necessary to
               effectuate fully the legislative intent."
               DYFS has been granted broad authority to
               investigate     child   abuse    allegations,
               including specific authority to investigate
               any child abuse allegation against a public
               school teacher and to report its findings to
               the teacher's employer.    N.J.S.A. 18A:6-7a.
               An investigation of an abuse complaint
               against a teacher may disclose conduct which
               poses a threat to the physical or emotional
               well-being of the teacher's students even
               though it does not rise to the level of
               "child abuse" within the intent of N.J.S.A.
               9:6-8.21.   Therefore, we are satisfied that
               DYFS has not only the authority but the
               responsibility to take reasonable measures
               to protect students from any threat to their
               well-being.     The most obvious available
               measure to protect students from a teacher
               who poses a danger to their safety or
               welfare is for DYFS to communicate its
               concerns and recommendations to the school
               district which employs the teacher.       The
               district can then take whatever action it
               deems appropriate to address DYFS' concerns,
               including   counseling,   transfer   of   the
               teacher to another assignment or, in an
               extreme case, termination of employment.
               Accordingly, we are satisfied that DYFS has
               the statutory authority to find that child
               abuse allegations against a teacher are "not
               substantiated"    but  that   the   teacher's
               conduct poses a risk of harm to his or her
               students, and to report those concerns to
    
    
    
                                    20                         A-5434-12T3
              the   school    district       which   employs     the
              teacher.
    
              [L.R., supra, 321        N.J. Super.      at 451-52
              (emphasis   added)         (internal       citations
              omitted).]
    
                                       III
    
        D.B. and A.G. argue that the Department's findings letters
    
    to the superintendents of schools violate the requirements of
    
    due process and fundamental fairness.             In S.P. we explained
    
    that:
    
              A teacher against whom a finding has been
              made by DYFS expressing concern about the
              teacher's conduct "has a due process right
              to challenge the wording of such a finding
              on the ground that it is misleading and
              unfairly damaging to his reputation."     "The
              impact upon a teacher's reputation of a
              finding by DYFS expressing concern about the
              teacher's   conduct    may   be   significant,
              especially if it is accompanied by what
              appears to be an affirmative finding by DYFS
              that a teacher has had improper physical
              contact with a student." "The investigatory
              findings and 'concerns about the teacher's
              conduct,'    warrant    'some   due    process
              protection'    by    'judicial   review    and
              correction   [of   the   findings]   to   curb
              administrative abuses.'"
    
              [S.P., supra, 402 N.J. Super.                 at   270
              (internal citations omitted).]
    
        In   A.I.,   we   determined   that    the   IAIU   acted   within   its
    
    authority in issuing its findings but nonetheless ordered the
    
    IAIU to amend its letter to embody language explicitly stating
    
    
    
    
                                       21                              A-5434-12T3
    that the IAIU had not adjudicated the findings or could not make
    
    binding recommendations, stating that the letter:
    
    
                needs to be amended to avoid an improper
                impression conveyed despite the ultimate
                finding that the charges of abuse were
                "unfounded."      Although   interviews   with
                students and teachers presented conflicting
                accounts and no adjudication took place,
                IAIU's letter to the District stated, as if
                conclusively found, that appellant "grabbed
                [A.I.'s] ponytail quickly at the same time
                as [the student] was trying to move away and
                as a result, the student fell to the floor."
                Accordingly, even though the section on
                "Investigative Findings" states that "[n]o
                adjudicative findings have been made [and]
                IAIU's     review     herein     is     solely
                investigative," the factual recitation in
                the "Evaluation of Facts" should be reworded
                to reflect this distinction.       The letter
                should also note that IAIU's findings are
                not binding or conclusive.       However, the
                overall conclusion that appellant's actions
                were "unjustified and inappropriate" is
                supported by the witness accounts, all of
                which suggest some physical confrontation
                between [the student] and [the teacher], and
                need not be deleted.
    
                [A.I., supra, 393      N.J.     Super.   at   131
                (citation omitted).]
    
        Similar to the A.I. case, the letter dated August 14, 2013
    
    sent to the superintendent of schools regarding A.G. and the
    
    amended letter dated August 1, 2013, relating to D.B., failed to
    
    include     in   the   "Investigative     Observations"   section     the
    
    statement that "IAIU's findings are not binding or conclusive."
    
    Ibid.     Moreover, in S.P. we opined that simply stating that the
    
    
    
                                       22                           A-5434-12T3
    findings are not binding or conclusive is insufficient, and the
    
    IAIU’s    findings       must     clearly        explain     that      it   has        made    no
    
    determination as to the validity of the statements provided by
    
    witnesses.       S.P., supra, 402 N.J. Super. at 272-73.                         We noted in
    
    R.P. that DYFS is not permitted to convey "the impression that
    
    its finding[s] [are] based on an adjudicatory hearing."                                    R.P.,
    
    supra,    333    N.J.    Super.      at    117.        Therefore,       both       cases      are
    
    reversed and remanded to the agency with direction to comply
    
    with    our   holdings       in   A.I.,      R.P.,     and      S.P.        Any    remaining
    
    arguments       that    we   have    failed       to     specifically        address          are
    
    without    sufficient        merit    to    require      discussion         in     a    written
    
    opinion.      R. 2:11-3(e)(1)(E).
    
           D.B. and A.G. are entitled to findings letters that state,
    
    after the conflicting witness statements are presented, that no
    
    determination as to the accuracy of the statements                                     has been
    
    made.     If a statement that there were allegations that a child
    
    was    harmed    or    put   at     risk    of    harm     is    included         within      the
    
    "Investigative Observations" section of the letters, it must be
    
    followed by the language that "there has been no determination
    
    of the accuracy of [the] allegations."                          R.P., supra, 333 N.J.
    
    Super. at 117.          The Department's findings of "not established"
    
    for both D.B. and A.G. need not be changed to "unfounded."
    
           Reversed and remanded.              We do not retain jurisdiction.
    
    
    
    
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