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Administrative Hearing Permitted I/M/O Allegation of Child Abuse Concerning O.O.

Administrative Hearing permitted I/M/O ALLEGATION OF CHILD ABUSE CONCERNING O.O



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


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).


Appellant M.O. appeals from a final decision of the

Division of Youth and Family Services (DYFS) denying her

request for a hearing on an administrative finding of child

abuse.We reverse and remand for further proceedings.

August 25, 2010



On October 9, 2002, DYFS received an allegation that

appellants 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.1The Administrative Hearings Unit denied the request

because appellant filed her request more than twenty days after

DYFSs notification of substantiated child abuse.This appeal


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


Apparently, the issue became a matter of concern to appellant

because of work-related issues.



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

agencys 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

agencys 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


[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 Assn 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 appellants request for an administrative


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 appellants 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 appellants 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 DYFSs 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.

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