NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, OFFICE OF LICENSING v. W.M

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1752-08T11752-08T1

NEW JERSEY DEPARTMENT OF

CHILDREN AND FAMILIES, OFFICE

OF LICENSING,

Respondent,

v.

W.M.,

Appellant.

___________________________________

 

Submitted December 8, 2009 - Decided

Before Judges Grall and LeWinn.

On appeal from the New Jersey Department

of Children and Families, Office of

Licensing.

Lucas & McGoughran, attorneys for

appellant (Kathleen A. Sheedy, on the

brief).

Anne Milgram, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Kelly L. Johnston, Deputy Attorney

General, on the brief).

PER CURIAM

W.M., formerly employed by facilities participating in the Head Start Program of Monmouth County, appeals from a final decision of the Department of Children and Families (Department). W.M. was hired as a bus driver in May 1994. Thereafter, he worked at several facilities associated with the Head Start Program in various positions, including custodian and supervisor of transportation. On October 17, 2008, the Department determined W.M. was disqualified for that employment due to an allegation of sexual abuse that was substantiated by the Division of Youth And Family Services (Division) in 1987. Because the agency misconstrued N.J.S.A. 30:5B-6.6, which is the statute governing disqualification based upon incidents of abuse substantiated prior to June 29, 1995, we reverse and remand for further proceedings.

The record discloses the following about the report of abuse upon which the Department relied. In January 1987, W.M.'s daughter reported that her father had fondled her breasts on more than one occasion and inappropriately kissed her on another. His wife, the child's step-mother, discussed the report with W.M. and his children, and he sought counseling. W.M.'s wife also filed a report with the Division, which the Division investigated and deemed "confirmed." The Division's records also reflect that W.M.'s step-daughter was interviewed during this investigation and disclosed that W.M. had fondled her when she was about seventeen years old.

Although W.M. was charged with criminal sexual contact, N.J.S.A. 2C:14-3b, as a consequence of the January 1987 incident, by June 1987 he was recommended for and admitted to the pre-trial intervention program. W.M. was not required to leave his home during or after the Division's investigation or as a condition of his participation in the pre-trial intervention program. The criminal charge against W.M. was dismissed by court order of May 2, 1988, entered pursuant to Rule 3:28(c)(1). It directs that the record reflect that the matter was adjusted. The record includes no other evidence of abuse, neglect or criminal activity by W.M.

As noted above, W.M. was hired by a facility in the Head Start Program in 1994. On February 17, 2006, he received a letter from the State captioned "Notice of Substantiated Finding and Right to Appeal the Results of a CARI Background Check." Without identifying the date or circumstances, the author advised, "you have been identified as the perpetrator of a substantiated incident of child abuse or neglect" and informed W.M. that he had twenty days to appeal "the substantiated finding."

By letter dated February 23, 2006, the Department acknowledged receipt of W.M.'s request for an appeal. In that letter the Department identified the "substantiated abuse/neglect" as a finding made by a Division district office "subsequent to a protective service investigation of a January 15, 1987 referral." W.M. was further advised of "a backlog of review requests" and that he could bypass the process by requesting a hearing in the Office of Administrative Law.

On February 27, 2006, W.M. received a letter elaborating on the basis for the Department's action. It stated:

Per your request for a Dispositional Review to appeal the decision of the Southern Monmouth District Office finding you responsible [for] sexually abusing your daughter . . . during the period between January 1986 and January 1987, enclosed please find the investigative report from that referral. This report is being provided to assist you in preparing for the Dispositional Review. Since the handwritten copy of the initial report and investigation is very difficult to read, I have transcribed the report for your convenience.

On January 15, 1987, the Division received a referral reporting that [your daughter], then age [twelve], disclosed that she had been sexually molested by you. The Division conducted an investigation and determined that on three separate occasions, you engaged in sexually inappropriate conduct with your daughter. It was also disclosed that you had previously engaged in similar conduct with your older daughter . . . , who was [nineteen] years old at the time of the referral to the Division. . . .

The author noted that the Department's file also included information about the treatment W.M. received and "successfully completed." She implied that the Department deemed that information insignificant by noting, "This however, does not erase the record that you did sexually molest" your daughter. By letter of March 1, 2007, the Department advised the Director of Acelro Learning Monmouth County Head Start, that she was required to terminate W.M.'s employment immediately.

W.M.'s appeal was transmitted to the OAL pursuant to N.J.S.A. 52:14F-1 to -23. Before the Administrative Law Judge (ALJ), W.M. did not challenge the substantiated finding of abuse made in 1987. Rather, he contended that pursuant to N.J.S.A. 30:5B-6.6, the Department could not consider that finding determinative without conducting a hearing to assess whether he presently posed "a risk of harm to children in a child care center." The ALJ concluded that N.J.S.A. 30:5B-6.6 did not permit a challenge to the Department's action on the ground that W.M. did not pose a risk to children. Accordingly, without conducting a hearing on that question, the ALJ ordered that W.M.'s "name be maintained on the Central Registry and that he [be] disqualified from child care center employment."

By decision dated October 17, 2008, the Department accepted the ALJ's construction of N.J.S.A. 30:5B-6.6. Nonetheless, considering the documentary evidence W.M. had submitted in support of his request for a hearing, the Department determined that W.M. "continues to pose a risk to children in a child care center." With that modification, the Department accepted the ALJ's recommendation.

The question raised here is one of statutory construction whether W.M. was entitled to a hearing affording him an opportunity to contest the Department's determination that he poses "a risk of harm to children in a child care center." Reviewing courts do "'not upset a State agency's determination in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated a legislative policy expressed or implicit in the governing statute.'" In re Camden County Prosecutor, 394 N.J. Super. 15, 22-23 (App. Div. 2007) (quoting County of Gloucester v. Public Employment Relations Comm'n, 107 N.J. Super. 150, 156 (App. Div. 1969), aff'd, 55 N.J. 333 (1970)). While "an agency's interpretation of the statute it is charged with administering . . . is entitled to great weight," no deference is due when the agency's interpretation is inconsistent with the Legislature's intent. Id. at 23 (internal quotations and citations omitted).

In construing a statute, agencies and courts must strive to effectuate the Legislature's intent. That inquiry into the Legislature's intent must begin with the language of the statute, which generally controls when the meaning is clear. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 418 (1999). When the language is susceptible of different meanings, courts "seek to effectuate the fundamental purpose for which the legislation was enacted," Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 24-25 (2009) (internal quotations and citations omitted), but when the meaning is clear, there is no need to delve deeper. State v. Thomas, 166 N.J. 560, 567 (2001). The Department's interpretation of N.J.S.A. 30:5B-6.6 is inconsistent with these fundamental principles of statutory construction.

There is no dispute that the facilities in which W.M. was employed after 1994 are subject to the "Child Care Center Licensing Act," N.J.S.A. 30:5B-1 to -15.1 as amended and supplemented. Since March 16, 1998, the effective date of L. 1997, c. 254, N.J.S.A. 30:5B-6.1 to -6.9, the Division has been required to conduct a check of its "child abuse records to determine if an incident of child abuse or neglect has been substantiated pursuant to [N.J.S.A. 9:6-8.11], against any staff member of a child care center." N.J.S.A. 30:5B-6.2a. Staff members are required to consent to a check of the Division's child abuse records, N.J.S.A. 30:5B-6.3, and the Department may not "issue a regular license or approval to a center until the [D]epartment determines that no staff member employed by or working at the center has a record of substantiated abuse or neglect." N.J.S.A. 30:5B-6.2b.

The term "staff member" includes "any . . . person employed by or working at a child care center on a regularly scheduled basis during the center's operating hours." N.J.S.A. 30:5B-6.1. There is no question that W.M. falls within that definition.

The question is the significance of the Division's record of abuse by W.M. in 1987 under this law. N.J.S.A. 30:5B-6.6 identifies the instances of substantiated abuse that are relevant. It permits the Department to consider incidents of substantiated abuse or neglect prior to June 29, 1995, "if the [D]epartment, in its judgment, determines that the individual poses a risk of harm to children in a child care center." N.J.S.A. 30:5B-6.6. In full, N.J.S.A. 30:5B-6.6 provides:

The [D]epartment shall consider, for the purposes of [N.J.S.A. 30:5B-6.1 to

-6.9], any incidents of child abuse or neglect that were substantiated on or after June 29, 1995, to ensure that perpetrators have had an opportunity to appeal a substantiated finding of abuse or neglect; except that the [D]epartment may consider substantiated incidents prior to that date if the [D]epartment, in its judgment, determines that the individual poses a risk of harm to children in a child care center. In cases involving incidents substantiated prior to June 29, 1995, the [D]epartment shall offer the individual an opportunity for a hearing to contest its action restricting the individual from employment in a child care center.

[Emphasis added.]

The statute is unambiguous. The Department must consider any incidents of child abuse or neglect that were substantiated on or after June 29, 1995, "to ensure that perpetrators have had an opportunity to appeal a substantiated finding of abuse or neglect." Ibid. With respect to substantiated incidents prior to that date, the Department may consider them but only if "the [D]epartment, in its judgment, determines that the individual poses a risk of harm to children in a child care center." Ibid.

With respect to incidents substantiated prior to June 29, 1995, the Department must offer a hearing. The statute is not silent on the topic of the hearing: the hearing must give the person an opportunity to contest the Department's "action restricting the individual from employment in a child care center." Ibid. As departmental action "restricting employment" due to abuse substantiated prior to June 29, 1995 is not permissible unless the Department determines the staff member "poses a risk of harm to children in a child care center," ibid., the Department's determination of "risk" is critical to the legitimacy of its action restricting employment. Accordingly, under the unambiguous terms of the statute, a challenge to a departmental finding of "risk" must be permitted in a hearing to contest the Department's action restricting employment.

The Department urges us to conclude that N.J.S.A. 30:5B-6.6 permits no challenge beyond an opportunity for a hearing as to whether the act of abused occurred. The Department points to nothing in the language of N.J.S.A. 30:5B-6.6 or other provisions of the act that supports that reading. Rather, the Department relies on the Assembly Judiciary Committee, Statement to A. 1243 (Jan. 23, 1997), which is the bill ultimately enacted as L. 1997, c. 254, N.J.S.A. 30:5B-6.1 to -6.9.

Putting aside the fact that a resort to legislative history is generally reserved for cases in which the statutory language is unclear, Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J. 33, 43 (2008), the committee statement is not informative on the issue in this case. It includes nothing more than a summary of the statute and an explanation for the selection of the date:

In cases involving incidents substantiated prior to June 29, 1995, the division shall offer the individual an opportunity for a hearing. According to the Department, the significance of the date is that on or after June 29, 1995 the [D]epartment by regulation provides for a hearing in substantiated cases.

[Assembly Judiciary Committee, Statement to A. 1243 (Jan. 23, 1997).]

This committee statement does not address the scope of the hearing. Moreover, because this statement indicates the committee members' familiarity with hearings afforded to challenge a finding of "substantiated" abuse, it suggests that the members could and would have limited the hearing to the question of substantiation if that was their intent. Instead, the bill was released, and ultimately enacted, with language requiring a hearing in cases involving abuse substantiated prior to June 29, 1995, "to contest [the Department's] action restricting the individual from employment in a child care center" and specified that such action is permissible when the "[D]epartment, in its judgment, determines that the individual poses a risk of harm to children in a child care center." N.J.S.A. 30:5B-6.6. That underlying determination of "risk" was a finding W.M. was permitted to contest at the hearing to which he was entitled under the terms of N.J.S.A. 30:5B-6.6. As he was not given that opportunity, we reverse.

We recognize that the Department addressed the question of the "risk" posed by W.M. in its final decision and on the basis of the documentary evidence W.M. submitted in the OAL. The record was not complete, however, because the ALJ ruled, as a matter of law, that W.M. could not contest the Department's assessment of risk. Moreover, in evaluating the record that was developed, the Department quite arbitrarily given the ALJ's ruling on the scope of the hearing discounted reports submitted by the doctor who counseled W.M. on the ground that the doctor did not testify.

Because W.M. was not afforded a hearing consistent with that required by N.J.S.A. 30:5B-6.6, the Department's final decision is vacated.

 
Reversed and remanded for further proceedings in conformity with this decision. We do not retain jurisdiction.

(continued)

(continued)

2

A-1752-08T1

RECORD IMPOUNDED

June 4, 2010