I/M/O ALLEGATION OF CHILD ABUSE CONCERNING O.O.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5088-08T35088-08T3

I/M/O ALLEGATION OF CHILD

ABUSE CONCERNING O.O.

________________________________________________________________

 

Submitted June 22, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from a Final Decision of the

New Jersey Division of Youth and Family

Services.

M.O., appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent New Jersey Department of

Children & Families, Division of Youth

and Family Services (Andrea M. Silkowitz,

Assistant Attorney General, of counsel;

Lori J. DeCarlo, Deputy Attorney General,

on the brief).

PER CURIAM

Appellant M.O. appeals from a final decision of the Division of Youth and Family Service's (DYFS) denying her request for a hearing on an administrative finding of child abuse. We reverse and remand for further proceedings.

On October 9, 2002, DYFS received an allegation that appellant's daughter O.O. was physically abused. DYFS investigated and confirmed the allegations of abuse. DYFS notified appellant of its determination by a letter dated November 4, 2002. The letter also explained that if appellant did not appeal within twenty days, the decision would become a final agency decision. Appellant received the letter and sent a November 14, 2002 letter to the Administrative Review Office declaring that she did not abuse O.O. Although she did not use the words "appeal" or "hearing," she explicitly challenged the findings of abuse. Apparently, no action was taken by DYFS.

Five years later, on February 22, 2007, appellant requested an administrative hearing challenging the 2002 final agency decision. The Administrative Hearings Unit denied the request because appellant filed her request more than twenty days after DYFS's notification of substantiated child abuse. This appeal followed.

Appellant contends that she did not receive the November 4, 2002 letter from DYFS until May 7, 2009. She contends that in 2002, she was told the case was closed, but did not receive a confirmation letter because the computer was broken. While we question the bona fides of that response, we are satisfied that DYFS should have afforded appellant a hearing upon receipt of the November 14, 2002 letter from appellant.

The impact of a finding of abuse is substantial. Among other sequelae, an abuser is included in the child abuse registry. "If a court determines that a child has been abused or neglected, 'the name of the person found to have committed child abuse and any identifying information are entered into a Central Registry maintained by DYFS.'" N.J. Div. of Youth and Family Servs. v. V.M., 408 N.J. Super. 222, 237 (App. Div.) (citing N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998), certif. denied, 200 N.J. 505 (2009), cert. denied, 78 U.S.L.W. 3762 (U. S. June 28, 2010).

Our review of an administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28.

[T]hree channels of inquiry inform the appellate review function: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[In re Alleged Improper Practice Under Section XI, Paragraph A(d) of the Port Auth. Labor Relations Instruction, 194 N.J. 314, 331-332 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)), cert. denied sub nom. Port Auth. Police Benevolent Ass'n v. Port Auth., ___ U.S. ___, 1 298 S. Ct. 754, 172 L. Ed. 2d 726 (2008).]

The narrow issue on appeal is whether DYFS abused its discretion in denying appellant's request for an administrative hearing.

When abuse is substantiated, the child protective investigator shall advise the perpetrator that "[h]e or she shall have an opportunity to dispute a finding of substantiated abuse or neglect, in accordance with N.J.A.C. 10:120A." N.J.A.C. 10:129-5.4(c). Here, appellant had twenty days to challenge the finding. She did so, but the record is devoid of how DYFS responded to her response. We also recognize that much time has passed, yet the impact of the finding remains the same.

We also recognize that appellant's contention that she never received the November 4, 2002 letter informing her of the agency decision and the timeframe in which she could appeal is at odds with her later statement in her November 14, 2002 letter that she received the earlier letter. Nevertheless, it appears that DYFS never responded to appellant's denial as well.

In sum, the totality of the circumstances here as well as principles of fundamental fairness require that the November 14, 2002 letter be considered an appeal, and the matter should proceed accordingly. We conclude that DYFS's failure to afford a hearing was in error and we reverse.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

Apparently, the issue became a matter of concern to appellant because of work-related issues.

(continued)

(continued)

5

A-5088-08T3

RECORD IMPOUNDED

August 25, 2010