B.P. v. Department of Children and Families

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3753-24 B.P.,1 Petitioner-Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent-Respondent. ___________________________ Submitted October 1, 2026 – Decided October 16, 2026 Before Judges DeAlmeida and Chase. On appeal from the New Jersey Department of Children and Families, Division of Child Protection and Permanency, Case ID No. 17359311. Williams Law Group, LLC, attorneys for appellant (Ladonna M. Cousins, of counsel and on the briefs). Jennifer Davenport, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel and on the brief; Alicia Y. Bergman, Deputy Attorney General, on the brief). 1 We use initials and pseudonyms to protect the privacy interests of the family. R. 1:38-3(d)(12). PER CURIAM B.P. (Bonnie) appeals from Department of Children and Families, Division of Child Protection and Permanency's (Division) final agency decision determining allegations of her emotional abuse towards A.H. (Andy) was "not established" under N.J.A.C. 3A:10-7.3(c)(3). Because some credible evidence supports that finding, and the Division did not act arbitrarily, capriciously, or unreasonably, we affirm. I. Bonnie and C.H. (Calvin) are the parents of Andy, who is now six years old. They separated in 2021 and have since engaged in a contentious custody dispute. In July 2023, Bonnie reported to the Cliffside Park Police Department that Andy told her Calvin forced him to engage in mutual oral sex. When the Division interviewed Andy, he denied that any such incident had occurred and said he enjoyed spending time with Calvin. In September 2023, Bonnie reported to the Edgewater Police Department that Andy told her Calvin had choked him and that he later vomited. During a Division interview, Andy denied the allegation. He also said Bonnie had A-3753-24 2 instructed him to say Calvin choked him and had "recorded [Andy] stating this coached disclosure." At the end of October, Bonnie's therapist reported that, during a session, Bonnie said Andy disclosed that Calvin once stated, "I won't go in too deep." When interviewed, Andy once again denied Calvin, or anyone else, had touched him in a sexual manner. The Division deemed those allegations unfounded. In April 2024, Bonnie reported to the Division that Calvin had forcibly engaged Andy in mutual fellatio, "wrapped both of their penises," and recorded them on his phone. At the time, Andy lived with Bonnie, and Calvin had daytime visitation five days a week. Bonnie said that the night before, Andy told her he did not want to sleep alone because his father gave him bad dreams related to the abuse. She also said Calvin worked in cybersecurity, had access to the dark web, and had previously "hacked into her stuff." She expressed concern that Calvin might post recordings of Andy online. Following Bonnie's report, the Hudson County Prosecutor's Office interviewed Andy, Bonnie, and Calvin. A Division investigator observed the interviews of Andy and Bonnie. During Andy's interview, he stated Calvin forced him "to put [Calvin's] pee pee in his mouth" and "put his pee pee in [Calvin's] mouth." Andy also reported that Calvin forced "toys" in his buttocks. A-3753-24 3 The Division investigator noted that Andy used some of the same terminology and "articulated some of the [same] wording contained in the initial allegations." The Prosecutor's Office found Andy's statements "unclear and not consistent" with his sex abuse disclosure against Calvin and declined to prosecute. That same month, the Division separately interviewed Andy, and he did not make a disclosure of sexual abuse. The Division referred the family to the Audrey Hepburn Children's House (AHCH) for evaluations. While the family awaited those evaluations, a Safety Protection Plan (SPP) required all contact between Calvin and Andy to be supervised. In May 2024, Dr. MaryBeth Mariano conducted Andy's AHCH medical evaluation. The physical examination showed that Andy was "a well-nourished and well-developed male child who was in no acute distress." Dr. Mariano described him as cooperative and talkative. But when Bonnie entered the room, Andy became noticeably more fearful, tearful, and clingy. The report described that change as a "stark contrast" to his earlier presentation, while also noting that Andy may have been seeking emotional support or attention from Bonnie during the examination. The general physical examination revealed no acute or chronic injuries, including in the anogenital area. During the examination, Andy stated that his father's penis had touched his buttocks. A-3753-24 4 Dr. Ruth S. Mesnard, a psychologist, conducted Andy's AHCH psychological evaluation. She described Andy as "a bright and well-related four-year-old child," though his responses could at times seem "tangential and fantastical." Dr. Mesnard expressed "considerable concerns" that both parents had coached Andy to make false allegations against the other. During the interview, Andy described multiple forced sexual contacts by Calvin, including mutual fellatio while being recorded, exposure to pornography, and violent conduct such as Calvin slamming his penis with a fist and kicking his buttocks. But Dr. Mesnard noted that Andy's responses included both "idiosyncratic, developmentally inappropriate details" and "fantastical and childlike responses." She also found that some of his statements were "vastly different" from and "incompatible" with his earlier descriptions of his relationship with Calvin, and that he gave only partially consistent details about the alleged abuse. When Dr. Mesnard asked follow-up questions, Andy could not provide specific, meaningful details to corroborate his claims. Dr. Mesnard also noted serious concern about Bonnie's influence on Andy. Before the interview, Andy said Bonnie had instructed him to speak with the psychologist and that he would "get a [toy]" afterward. Dr. Mesnard viewed those statements as evidence of Bonnie's undue influence which reinforced the A-3753-24 5 Division's concern that Bonnie had coached him. Andy made both positive and negative comments about Bonnie, but he also described several troubling incidents while in her care. He said he felt scared when Bonnie ripped his toys, kicked his puppy "in the air," or cursed at him. He added, "I don't love [Bonnie] when she's bad," referring to times when she cursed at him. Dr. Mesnard concluded that the parents' contentious custody dispute had caused Andy to develop "disorganized" and "inconsistent" attachments to both parents and had placed his mental and psychological health at high risk. She recommended therapy for Andy. Dr. Amanda Macdonald conducted Bonnie's AHCH clinical evaluation. Dr. Macdonald noted that Bonnie spoke "extensively about her poor relationship with Calvin." In addition to expressing serious concerns about Calvin's alleged sexual abuse, Bonnie described numerous incidents of domestic violence and co-parenting conflict, including claims that Calvin had held her at knifepoint, strangled her, locked her in a bedroom, hacked her iCloud account, and deleted evidence related to his conduct and Andy's wellbeing. Dr. Macdonald found that Bonnie displayed "clear disgust and hatred" toward Calvin and that she lacked insight into the effects of her persistent questioning of Andy. Dr. Macdonald recommended individual therapy for A-3753-24 6 Bonnie to help her process years of reporting abuse and to work on maintaining "emotional boundaries" with Andy. Dr. Solomon Barry conducted Calvin's AHCH evaluation. Calvin described several domestic-violence incidents and false reports made against him by Bonnie. He stated that Bonnie had once used domestic-violence charges to try and blackmail him into giving her full custody. He confirmed that he had worked in cybersecurity for many years and that he "'record[s] most of the interactions'" with Andy because of the physical and sexual abuse allegations Bonnie had made against him. He also stated that Bonnie had filed more than fourteen police reports and prompted six Division investigations arising from allegations of domestic violence against her and physical and sexual abuse of Andy. Calvin denied ever engaging in sexually problematic behavior, having aggressive sexual fantasies, or possessing or viewing child pornography. He described Andy as very social but expressed concern about the effect that repeated conflict, police reports, and Division referrals would have on Andy 's development. Dr. Barry assessed Calvin as presenting a low risk of committing sexual or physical abuse and recommended therapy for him in light of the repeated Division referrals and unfounded allegations. A-3753-24 7 Dr. Michele LaCouture also conducted a Best Interest Evaluation of Andy for the Division. She observed Andy interacting with each parent separately. Dr. LaCouture reported that Andy was "playful, cooperative, and appropriately affectionate with [Calvin]," but "defiant and disengaged" with Bonnie. She also expressed concern about many of Bonnie's actions, especially her "persuasive pattern of reporting skewed information, evasive responding, omitting pertinent information, combative discussion and use of deflection onto [Calvin]." For example, Dr. LaCouture noted that Bonnie had been charged with parental interference in 2023 for preventing Calvin from seeing Andy. She also noted that Bonnie had taken Andy to ten medical appointments between 2022 and 2023 based on concerns about sexual abuse, none of which yielded significant findings. Because the record contained no "documentation, collateral discussions, [or] behavioral observation of Andy being sexually harmed by Calvin or anyone else," Dr. LaCouture opined that Andy was at risk of an iatrogenic condition—that is, harm caused by medical treatment itself. She concluded that Andy should be "immediately removed from [Bonnie's] care" because of her "increasing lack of insight, poor judgment[,] and her direct contribution to Andy's harm," including her influence over Andy and her role in causing him to fear his father. A-3753-24 8 After receiving the evaluations, the Division determined that Bonnie's allegations against Calvin lacked clinical support. Based on its investigation and the AHCH evaluations, the Division found "considerable concern" that Bonnie had instructed, and would likely continue to instruct, Andy to make false allegations against Calvin, thereby harming Andy's mental and psychological health. The Division also recommended terminating the SPP that required supervised contact between Calvin and Andy. The Family Part then transferred custody of Andy to Calvin to prevent further psychological harm from Bonnie. The court also ordered that Bonnie have no in-person parenting time until she completed psychotherapy and her treating therapist determined that contact would not pose a "risk of psychological harm [to Andy]." In April 2024, the Division received an allegation that Bonnie had emotionally abused Andy. In a September 2024 letter, the Division issued an "established" finding, concluding that Bonnie had caused Andy mental and emotional impairment. The letter advised Bonnie that she could challenge the finding by requesting a hearing in the Office of Administrative Law (OAL) within twenty calendar days of receiving the letter. She did not request an OAL hearing. A-3753-24 9 In February 2025, Dr. Gerard A. Figurelli issued a risk assessment of Bonnie. By then, Bonnie had begun psychotherapy. Dr. Figurelli reported that Bonnie had come to understand and accept that her prior actions had harmed Andy. He found no indication that she then posed a risk of harm to Andy if her parenting time were reinstated. In April 2025, Bonnie claimed she never received notice of the findings and requested an OAL hearing. In May, upon reviewing the request, the Division changed its finding from "established" to "not established." The Division explained: [t]here is evidence of [Bonnie] coaching [Andy] to make allegations against his father. As per evaluations conducted at Audrey Hepburn Children's House it was also found that [Bonnie] showed hatred of [Calvin] and lacked understanding of her impact of continued leading questions of [Andy]. Bonnie then submitted a rebuttal, asking the Division to change the "not established" finding to "unfounded." In support, she submitted Dr. Figurelli's risk assessment and challenged Dr. LaCouture's credentials, methodology, and factual accuracy. On June 13, 2025, the Division issued its final agency decision, maintaining the "not established" finding. A-3753-24 10 II. The scope of our review of a final agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). An appellate court is bound to uphold an agency's decision unless "there is a clear showing that is it arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Dep't of Child. & Fam. v. T.B., 207 N.J. 294, 301 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). We "must defer to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), and "extend substantial deference to an 'agency's interpretation and implementation of its rules enforcing the statutes for which it is responsible ' based on the agency's expertise." N.J. Dep't of Child. & Fam. v. R.R., 454 N.J. Super. 37, 43 (App. Div. 2018) (quoting In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 , (2004)). Nevertheless, when an agency's decision is not accompanied by the necessary findings of fact, we generally remand the matter to provide the agency the opportunity to correct the deficiency. See DiMaria v. Bd. of Trs. Pub. Emps.' Ret. Sys., 225 N.J. Super. 341, 347 (App. Div. 1988). Although not capable of precise definition, "abuse of discretion" arises when a decision is "'made without a rational explanation, inexplicably departed A-3753-24 11 from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). As the Supreme Court has described it, "a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue." Ibid. In exercising our review function, the court serves "as a guardian of the statute to [e] that its mandate is fulfilled." Crema v. N.J. Dep't of Envtl. Prot., 192 N.J. Super. 505, 511 (App. Div. 1984) (quoting S. Brunswick v. N.J. Tpk. Auth., 129 N.J. Super. 126 , 137 (App. Div. 1974)). When reviewing an agency's decision, our Court has elaborated that an appellate court should determine: (1) whether the agency followed the law; (2) whether the record contains substantial evidence to support its findings; and (3) whether the agency clearly erred in reaching a conclusion that could not reasonably have been made, when applying the law to the facts. In re Carter, 191 N.J. 474, 482 (2007). We ordinarily defer to the agency 's first-hand credibility judgments and factual findings unless there is strong evidence countering these findings. Id. at 482-83 ; N.J. Div. of Youth & Fam. Servs. v. E.P.U., 196 N.J. 88, 104 (2008). III. A-3753-24 12 On appeal, Bonnie argues that the Division acted arbitrarily, capriciously, and unreasonably because the record did not support a finding that she emotionally abused Andy or placed him at risk of harm. She also contends that the Division failed to identify some credible evidence that her conduct harmed Andy or exposed him to harm. We are not persuaded. The Division "is charged with the responsibility to investigate all allegations of child abuse or neglect." S.C. v. N.J. Dep't of Child. & Fams., 242 N.J. 201 , 211 (2020). After the Division completes its investigation, it makes one of four possible findings: "substantiated;" "established;" "not established;" or "unfounded." N.J.A.C. 3A:10-7.3(c); S.C., 242 N.J. at 211. A "substantiated" or "established" finding is one in which "the preponderance of evidence indicates that [the] child is an 'abused or neglected child' as defined in N.J.S.A. 9:6-8.21." N.J.A.C. 3A:10-7.3(c)(1) and (2). By contrast, a "not established" finding is one in which "there is not a preponderance of the evidence that [the] child is an abused or neglected child . . . , but evidence indicates that the child was harmed or was placed at risk of harm." N.J.A.C. 3A:10-7.3(c)(3). Our Supreme Court has explained that a "not established" finding requires some "credible evidence" that the child was harmed or placed at risk of harm. S.C., 242 N.J. at 239. The Court has also explained that the Division's "finding" A-3753-24 13 is not based on "adjudicated facts . . . ; rather, it merely ascribes what functions as a working label to the evidence collected through investigation." Id. at 235. "Thus, a 'not established' finding . . . differ[s] from an 'established' or 'substantiated' finding of abuse or neglect [in] two ways: first, relating to the quantum of evidence, and second, the nature of the finding." R.R., 454 N.J. Super. at 41 . "[I]n a 'not established' finding, that lesser quantum of evidence 'indicates' only [the] child 'was harmed or was placed at risk of harm,' and does not establish the child was an 'abused or neglected child' under N.J.S.A. 9:6- 8.21(c)." Id. at 42 (quoting N.J.A.C. 3A:10-7.3(c)(3)). Indeed, "placing 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." Ibid. If "the evidence indicates that a child was not harmed or placed at risk of harm," the allegation is deemed "unfounded." N.J.A.C. 3A:10-7.3(c)(4). A record containing a "not established" finding is required to be retained by the Division. Although the record is confidential, it is subject to disclosure in certain circumstances pursuant to N.J.S.A. 9:6-8.10(a). S.C., 242 N.J. at 228 29. By contrast, an "unfounded" finding is subject to being expunged. N.J.A.C. 3A:10-7.7(b). A-3753-24 14 Due process does not require an adjudicatory hearing before the Division finalizes a "not established" finding because the finding is investigatory. But the Division must give meaningful notice of the finding and a meaningful informal opportunity to rebut it before finalizing it. S.C., 242 N.J. at 238. That notice "should include a summary of the support for the finding, and the [Division's] reasoning should be transparently disclosed." Id. at 238-39. "Moreover, the individual must be informed of his or her opportunity to rebut the [Division's] conclusion or supplement the record so that the informal opportunity to be heard before the agency is not illusory." Id. at 239. To determine whether a "not established" finding is arbitrary, capricious, unreasonable, or lacks fair support, we examine the Division's investigation and findings in the record. R.R., 454 N.J. Super. at 43 . In R.R., we reversed a "not established" finding because the Division had failed to obtain and review key materials from related divorce proceedings, including submissions on an order to show cause, hearing testimony, a trial court order directing further investigation, video footage of the alleged incident, and evidence of the wife's admitted motive to remove her husband from the home. Id. at 46-47 . This case is different. The Division did not overlook the kind of essential evidence missing in R.R. Instead, it conducted multiple investigations, referred A-3753-24 15 the family for medical and psychological evaluations, observed interviews, and assembled a detailed record documenting the parents' separation, custody litigation, domestic-violence allegations, and competing accusations over time. We are also unconvinced by Bonnie's argument the Division failed to explain how her alleged "hatred" toward Calvin somehow harmed Andy or placed him at risk of harm, causing him mental and emotional impairment. 2 The record includes more than Bonnie's hostility alone. It also includes evidence that Bonnie repeatedly questioned Andy, coached him to accuse Calvin, subjected him to repeated interviews and examinations based on allegations that lacked support, and failed to appreciate the effect of that conduct on him. Nor does the record support Bonnie's challenge to Dr. Macdonald's credibility or expertise strongly enough to justify disturbing the Division's discretionary decision. The Division was entitled to consider Dr. Macdonald's evaluation along with the other AHCH evaluations and the broader investigative record. We are likewise satisfied there is some credible evidence to support the Division's "not established" finding. The family history, the clinical 2 Dr. Macdonald used the phrase "hatred" in her AHCH clinical evaluation of Bonnie. The Division also used the same word in the May 19, 2025 findings letter to support its "not established" finding. A-3753-24 16 evaluations, the Division's investigation summaries, Andy's and Bonnie's own statements during the evaluations, Bonnie's persistent hostility toward Calvin, and the evidence that Bonnie coached Andy to make allegations together satisfy the modest evidentiary showing required for a "not established" finding. Next, Bonnie incorrectly conflates a finding of "not established" with a finding of "child abuse or neglect." The definition of "not established" is clear and unambiguous that it is not a finding of child abuse or neglect. See N.J.A.C. 3A:10-7.3(c) ("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."). Not only is the quantum of evidence different, but the consequences of a finding of abuse or neglect are far more severe. See N.J. Div. of Child Prot. & Permanency v. J.R.-R., 248 N.J. 353 , 359 (2021) ("When a court finds that a parent has committed an act of abuse or neglect against a child, the parent faces serious consequences that could include the termination of the parent's custodial rights to the child."). Bonnie's contention that the record is insufficient because Dr. LaCouture's views conflict with Dr. Figurelli's later report lacks merit. Dr. Figurelli's report does not erase the earlier record. To the contrary, his report notes that Bonnie A-3753-24 17 had come to understand and accept that her prior conduct had harmed Andy. The Division considered the competing evidence and still had a rational evidentiary basis to retain the "not established" finding. See R.R., 454 N.J. Super. at 47 . Bonnie's remaining arguments overlook key facts in the record. Both Dr. Mesnard and Dr. Macdonald expressed concern that the parents' conduct— especially Bonnie's repeated questioning and coaching—was undermining Andy's attachments and placing him at risk of psychological harm. And Bonnie's argument that the allegation should have been deemed "unfounded" because the Division did not substantiate abuse by Calvin for coaching Andy misses the point as it does not negate evidence that Bonnie's conduct placed Andy at risk. Affirmed. A-3753-24 18