Administrative Hearing permitted
I/M/O ALLEGATION OF CHILD
ABUSE CONCERNING O.O.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5088-08T3
________________________________________________________________
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.
August 25, 2010
A-5088-08T3
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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.1 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
1
Apparently, the issue became a matter of concern to appellant
because of work-related issues.
A-5088-08T3
3
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
A-5088-08T3
4
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. ___, 1298 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
A-5088-08T3
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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.
