New Jersey Department of Children and Families v. M.N.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2406-24 NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner-Respondent, v. M.N.,1 Respondent-Appellant. _________________________ Submitted September 22, 2026 ‒ Decided October 13, 2026 Before Judges Natali and Bishop-Thompson. On appeal from the New Jersey Department of Children and Families, Division of Child Protection and Permanency, Case ID No. 15546257. Jennifer N. Sellitti, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the briefs). Jennifer Davenport, Attorney General, attorney for respondent (Deborah E. Wassel, Assistant Attorney 1 We use initials and pseudonyms to preserve the confidentiality of these proceedings. R. 1:38-3(d)(12) and N.J.S.A. 9:6-8.10a(a). General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). PER CURIAM This matter returns to us following our reversal of the Family Part's judgment, in which we concluded the finding defendant M.N. (Madeleine) abused and neglected her daughter W.N.-L. (Wanda) was not supported by substantial credible evidence in the record. See N.J. Div. of Child. & Fams. v. M.N. and J.L.K., No. A-2413-21 (App. Div. Apr. 15, 2024) (slip op. at 1).2 Madeleine appeals from the February 26, 2025 final agency determination issued by the New Jersey Department of Children and Families (Division), Division of Child Protection and Permanency (DCPP) (collectively, Division) that child abuse and neglect allegations involving Wanda were "not established" under N.J.A.C. 3A:10-7.3(c)(3). Based on our review of the record and the governing legal principles, we affirm. I. We presume the parties are familiar with the underlying facts reflected in the record and the evidence presented at the multi-day fact-finding hearing. We therefore provide only a summary of the facts relevant to this appeal. 2 This matter was consolidated with the termination of Madeleine's parental rights to Wanda's half-sister, three-and a-half-year-old I.E.N.-K. (Izzy). A-2406-24 2 Wanda, born in January 2015, is the daughter of Madeleine and W.L. (Wally), whose long-term relationship ended in 2018. Madeleine later had a relationship with J.L.K. (James), and they had a child, Izzy, in April 2019. That relationship ended in December 2019, when the court entered a final restraining order (FRO) barring James from Madeleine's home and prohibited contact or communication with her. James passed away in 2022. At various times, the Division opened investigations with respect to all three adults, each of whom had criminal and substance abuse histories. In October 2018, the Division initiated an investigation after a mandated reporter relayed a disclosure from Madeline's sister that Wally might be sexually abusing Wanda. During her interview with a caseworker, Madeleine stated she took the allegations seriously because she had been sexually abused as a child. She, nevertheless, did not believe the allegations and described Wally as a "wonderful father." In July 2019, during a custody hearing, Wally alleged Madeleine was using drugs while caring for Wanda. The court referred the matter to the Division. Later that same day, Madeleine reported to the Division Wally had inappropriately touched Wanda during her weekend visitation. Pending the investigation, Wally's parenting time was suspended, and the Division A-2406-24 3 implemented a safety protection plan prohibiting his contact with Wanda during that investigation. As part of the Division's investigation, a caseworker interviewed Wanda and both parents. The Division recorded that Wanda repeated the allegations of inappropriate touching to a caseworker, a physician at the Child Abuse Research Education and Service Institute, and a detective from the Camden County Prosecutor's Office. Wanda's medical evaluation yielded "no concerns," and she was referred to a clinical mental health provider for an "evidence-based mental health services assessment and treatment recommendations regarding the alleged sexual abuse." The caseworker also interviewed a mutual friend of Wally and Madeleine, who reported ongoing custody disputes between the parents. The prosecutor's office declined filing charges, and the Division closed its investigation after finding the allegation against Wally was "not established." In February 2020, Wally was granted joint custody and parenting time. Immediately after an overnight visit, Madeleine reported to police that Wanda again disclosed Wally inappropriately touched her genitals. The allegation was again referred to the Division. That same day, the Division initiated an investigation, and a caseworker interviewed Wanda. She denied the allegations and made no disclosures A-2406-24 4 concerning Wally. Wanda, however, reported Wally had taken her to a counselor. The caseworker told Madeleine of Wanda's denial. Madeleine said she did not understand why Wanda had recanted and said she would not allow Wanda to visit Wally. Madeleine stated she was aware Wally had taken Wanda to a counselor but did not know the counselor's name. When Madeleine said she intended to take Wanda to a therapist, the caseworker reminded her that Wanda was already receiving counseling services, although her attendance had been inconsistent and Madeleine had frequently brought her late. Madeleine explained the delays were due to car and transmission issues. The caseworker also advised Madeleine that she had not been cooperating since the Division's involvement. Madeleine was advised she was required to comply with the recommended services, including providing James's address and contact information and completing a domestic violence assessment and substance abuse evaluation. The caseworker also reminded Madeleine she had been given the Perform Care/Mobile Response phone number for in-home services, and provided it again, but Madeleine never contacted the provider. Later that afternoon, a caseworker interviewed Wally at his home. During the interview, Wally received a text message from Madeleine stating: "[Y]ou A-2406-24 5 can have her tomorrow, I know what you are doing. [D]on't touch her and she wants a new worker." At approximately the same time, the caseworker also received a text message advising: Hey Danny just having to let you know as soon as you left [Wanda] told me and my aunt she lied to you about last night because she didn't want to answer questions about last night about her dad. I think it would be in her best interest to have a female worker especially consider the nature of the abuse. I cannot in any manner send her to a place where she will be further damaged, emotionally, physically and mentally. In response, the caseworker informed Madeleine the permanency worker is female, and Madeleine replied, "[T]hank you." Wally stated Wanda's first counseling session was the day before. He also stated he was not surprised by the recent allegation, as he dropped Wanda off at Madeleine's home at 8:00 p.m. and the Division received the report at 8:48 p.m. Wally described Madeleine as "vindictive." He also expressed concerns about Wanda's well-being in Madeleine's home. He denied knowing James's whereabouts. The local police department and the prosector's office became involved. In early March, Wanda disclosed to the detective Madeleine always instructed her to say: "Daddy always touches [me] on my crotch," even though it had not occurred, and Madeleine repeatedly told her to make that statement. Wanda also A-2406-24 6 described Madeleine as "crazy." Wanda denied Wally, or anyone else, had inappropriately touched her. She also reported James had resumed living in Madeleine's home. The detectives then interviewed Madeleine. After advising her of her Miranda3 rights, they obtained a waiver, and she agreed to speak with them. Madeleine reviewed her journal during the interview but repeatedly interrupted the detectives when they identified inconsistencies in the dates and her account of events. When advised of Wanda's statements, Madeleine responded Wanda may have been scared. Madeleine was thereafter arrested and charged with second-degree making a false report and second-degree endangering the welfare of a child. While she was detained, a caseworker informed her Wanda would be removed from the home and placed with Wally; the court later upheld that placement and granted the Division care and supervision of Wanda while she remained in Wally's custody. Madeleine initially denied Wanda's statement James was back in the home, but later said he was visiting Izzy. James later confirmed he was living 3 Miranda v. Arizona, 384 U.S. 436 (1966). A-2406-24 7 with Madeleine. Madeleine was released on the condition she had no contact with Wanda unless approved by the Division or the Family court. The Division substantiated a finding of emotional abuse and neglect by Madeleine against Wanda and again deemed the sexual abuse allegations against Wally unfounded. In the early morning of March 25, Madeleine used a key to enter Wally's home, woke Wanda, and led her to Wally's truck. When interviewed by a detective the next day, Wanda—although reluctant—relayed the night's event. She also stated Wally told her Madeleine had broken a window with a metal pipe. Shortly thereafter, the Division filed a Title 9 complaint against Madeleine, alleging she caused Wanda to be an abused or neglected child. After the fact-finding hearing, the trial court entered judgment in favor of the Division substantiating a finding of emotional abuse and neglect against Madeleine. We reversed the judgment on appeal concluding two errors of law were made. M.N. and J.L.K., slip op. at 41. We "express[ed] no opinion on whether Madeleine coached Wanda to make false allegations against Wally" and concluded Wanda's uncorroborated statement that Madeleine did so cannot support an abuse and neglect finding. Id. at 43-44. We further explained "while in no way minimizing Madeleine's incredibly reckless behavior in taking Wanda and Izzy in the middle A-2406-24 8 of the night, the Division presented no competent evidence that either child has suffered any physical or emotional harm from the experience." Ibid. On May 8, 2024, the Division notified Madeleine, in light of our decision, its finding against her had been modified from the substantiated child abuse and neglect finding to "not established." Madeleine was informed the Division would no longer consider her "coercion" of Wanda to make false statements against Wally and would no longer rely on the alleged kidnapping causing trauma to Wanda. It also invited her to submit any additional information for consideration before it issued its final agency decision. Madeleine responded, making a legal argument based on our decision but no new evidence was submitted. In a detailed rebuttal letter, Madeleine argued the Division's letter setting forth the "not established" finding improperly treated as fact the unsupported assertion she coerced her daughter into making false statements regarding sexual abuse against Wally. She contended this finding directly contradicted our conclusion the sole basis for the Division's accusation she coached Wanda to make a false report was Wanda's March 2020 recantation to the detective. In its final agency decision, the Division advised Madeleine it was not altering the "not established" determination because her response did not change A-2406-24 9 its investigatory conclusion. Madeleine was informed the Division would no longer consider her "coercion" of Wanda to make false statements against Wally that resulted in alienating her from her father and would no longer rely on the alleged kidnapping causing trauma to Wanda. The Division noted we expressed no opinion on whether Madeleine coached Wanda and had not held the trial court's finding was "incorrect." It also cited our observation that Madeleine's act of taking Wanda during the early morning hour was "incredibly reckless," and concluded this conduct "[did] not negate the significant risk of harm to [Wanda] from [Madeleine's] actions." The Division found Madeleine placed Wanda at risk by permitting James to be in the home and around the children despite the restraining order barring such contact. Finally, it determined Madeleine also placed Wanda at risk by failing to arrange therapy for her to address the alleged sexual abuse, despite having received information on Perform Care from the Division on multiple occasions. II. Madeleine appeals arguing the Division's "not established" finding constituted an arbitrary, capricious, and unreasonable final agency decision. She contends there is no credible evidence in the record to support Wanda's uncorroborated hearsay accusations of coaching because the Division misquotes A-2406-24 10 our opinion by claiming we affirmed all of the trial court's factual findings. Madeleine further argues the Division improperly found Madeleine endangered Wanda by not arranging therapy for the alleged abuse because the allegations against Wally were deemed unfounded. She also contends she did not place her children at risk by permitting James's access to her home after the FRO was entered. Lastly, she maintains there is no credible evidence in the record to support the Division's unpled kidnapping claim she placed the children at risk. Madeleine asks us to vacate the Division's "not established" finding and direct the Division to enter the finding of "unfounded" and expunge all related records under N.J.A.C. 3A:10-8.1(a)-8.3. The scope of our review of a final agency decision is limited. Zimmerman v. Diviney, 477 N.J. Super. 1 , 14 (App. Div. 2023). We do not substitute our judgment for that of the agency nor disturb the agency's determination unless it is arbitrary, capricious, or unreasonable, or is not supported by substantial credible evidence in the record. Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n, 237 N.J. 465, 475 (2019). We owe special deference to agency expertise, affording agency actions "a presumption of reasonableness," and we may not substitute our judgment for the agency's "even if [we] would have reached a different result." N.J. Div. of A-2406-24 11 Youth & Fam. Servs. v. C.H., 414 N.J. Super. 472, 479-80 (App. Div. 2010); In re Herrmann, 192 N.J. 19, 28 (2007). Our review, however, is not "perfunctory[,]" nor is "our function . . . merely [to] rubberstamp an agency decision." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010). Instead, "our function is 'to engage in a careful and principled consideration of the agency record and findings.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). The Division is charged with the investigation of allegations of child abuse or neglect. N.J.S.A. 9:6-8.11. Under N.J.A.C. 3A:10-7.3(c), allegations that are "substantiated" and "established" require a finding of child abuse under N.J.S.A. 9:6-8.21(c), N.J.A.C. 3A:10-7.3(c)(1) to (2); and findings that are "not established" and "unfounded," are made when the investigation does not indicate child abuse under the statute. N.J.A.C. 3A:10-7.3(c)(3) to (4). A finding of "not established" is considered purely investigatory in nature, not adjudicatory. See N.J. Dep't of Child. & Fams. v. S.P., 402 N.J. Super. 255, 270 (App. Div. 2008). "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." N.J. Dep't. Child. & Fams. v. R.R., 454 N.J. A-2406-24 12 Super. 37, 40 (App. Div. 2018) (quoting N.J.A.C. 3A:10-7.3(c)(3)). A "not established" finding requires "less than a preponderance of the evidence and involves 'some' evidence . . . [which] must be understood to be 'credible evidence.'" See S.C. v. N.J. Dep't of Child. & Fams., 242 N.J. 201 , 239 (2020). Stated another way, "[A] child 'at risk of harm' may involve a lesser risk than the 'substantial risk of harm' or 'imminent danger' required to establish abuse or neglect under the statute." R.R., 454 N.J. Super. at 42. On the other hand, an allegation is "unfounded" where the "evidence indicates the alleged perpetrator did not harm the child or place the child at risk of harm." Ibid. at 43 (citing N.J.A.C. 3A:10-7.3(c)(4)). No party contends there was a preponderance of evidence that Wanda was abused or neglected. Madeleine conflates the burden of proof for a finding of abuse and neglect for an adjudication with the standard applicable to an investigative finding of not established. She contends the Division's baseless assertion she coached Wanda to make false claims of sexual abuse against Wally is not supported by the record and cannot be the sole basis for a finding of not established. Madeleine argues our decision concluded the court committed "two fatal errors of law": first, we "extensively" scrutinized Wanda's recantation, finding them legally insufficient because the Division presented no testimony A-2406-24 13 from Wanda and no corroborating evidence; and second, the court relied on non- expert testimony concerning "emotional dysregulation," including testimony Wanda's difficulties were "caused" by "all . . . that [she] had been through with [Madeleine]." She further contends no evidence identified her as responsible or supported the finding Wanda suffered or was at risk of harm, whether imminent, substantial, or otherwise. In contrast, the Division contends a lesser quantum of evidence is sufficient to support a "not established" finding. We agree. The investigation revealed some credible evidence of emotional abuse and neglect—namely, Wanda's statements, which were sufficiently corroborated by the caseworker and the detective. Under N.J.S.A. 9:6-8.46(a)(4), "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." See also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32-33 (2011). That plain language does not apply to an investigatory finding. Thus, Wanda's out-of-court statements Madeleine had coached her constituted some competent evidence, which is sufficient to support a finding that harm, or a risk of harm, existed. A-2406-24 14 We next address Madeleine's contention the Division erred in finding Madeleine placed Wanda "at risk" by not arranging therapy to address the alleged sexual abuse and engaged in illegal activity in March 2020 when she used her key to enter Wally's home and removed Wanda. Citing N.J. Dept of Child. & Fams. v. E.D.-O., Madeleine argues the Division is required to show she failed to exercise a "minimum degree of care" to a child less than eighteen years old "by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof." 223 N.J. 166, 178 (2015). In making this argument, she misapprehends the Court's holding, which emphasized that "whether a parent's conduct is negligent or grossly negligent requires an evaluation of the totality of the circumstances," and "[s]uch an evaluation can only occur through a hearing." Id. at 170-171 . While the phrase "minimum degree of care" is not defined within the statute, our Supreme Court has recognized this standard refers to conduct that is "grossly or wantonly negligent, but not necessarily intentional." G.S. v. Div. of Youth & Fam. Servs., 157 N.J. 161, 178 (1999); see also N.J. Div. of Youth & Fam. Servs. v. T.B., 207 N.J. 294, 299-300 (2011). The standard is not whether some potential for harm exists; rather, whether a parent has failed "to exercise a minimum degree of care when he or she is aware of the dangers inherent in a A-2406-24 15 situation and [has] fail[ed] adequately to supervise the child or recklessly [has] create[d] a risk of serious injury to the child." G.S., 157 N.J. at 181 . A parent's obligation to provide necessary care—including arranging essential therapy for a child—is governed by the statutory duty to exercise a "minimum degree of care." N.J.S.A. 9:6-8.21. The failure to meet this standard occurs when a "child's physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired " as a direct result of "the parent's failure to exercise that minimum degree of care" in supplying necessary medical care or proper supervision. N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369 (2017). The mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The Division contends Wanda was at risk of harm because James returned to Madeleine's home after the entry of an FRO. Generally, "the act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs." See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584 (App. Div. 2010) (citing N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-26 (App. Div. 2004)). A-2406-24 16 Madeleine, however, failed "to exercise a minimum degree of care" by not complying with the court order requiring her to participate in the Division's recommended services, including domestic violence counseling, a substance abuse evaluation, and counseling for Wanda. We adhere to our prior conclusion that Madeleine's removal of Wanda from Wally's home, in defiance of the Division's placement, was "incredibly reckless." That removal reflected a reckless disregard for Wanda's safety. G.S., 157 N.J. at 178 . Considering the totality of the evidence developed during the Division's investigation, some evidence supported the finding of "not established." We therefore conclude the Division properly exercised its discretion. To the extent we have not specifically addressed a particular argument, we deem it without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-2406-24 17