New Jersey Div. of Youth & Family Services v. M.R.

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: SKILLMAN; EICHEN
• Citation: 314 N.J.Super. 390,715 A.2d 308
• Parties: NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Respondent, v. M.R., Appellant.
• Decision Date: 21 July 1998

Page 390

314 N.J.Super. 390 715 A.2d 308 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Respondent,
v.
M.R., Appellant. Superior Court of New Jersey,
Appellate Division. Argued April 27, 1998.
Decided July 21, 1998.

[715 A.2d 309]

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Gregory G. Diebold, Jersey City, for appellant (Hudson County Legal Services Corp., attorney; Kathleen E. Kitson, of counsel and on the brief).

Andrea M. Silkowitz, Assistant Attorney General, for respondent (Peter Verniero, Attorney General, attorney; Ms. Silkowitz, of counsel and on the brief; Ressie Fuller, Deputy Attorney General, also on the brief).

Before Judges PETRELLA, SKILLMAN and EICHEN.

The opinion of the court was delivered by

[715 A.2d 310] PETRELLA, P.J.A.D.

On this appeal from a determination of the Division of Youth and Family Services (DYFS) that an allegation of child abuse made against M.R. (appellant) was substantiated, appellant argues she was improperly denied access to documents and a trial-type hearing in violation of her due process rights and fundamental fairness.

The dispute arose when DYFS received a referral on January 26, 1996, regarding the possible physical abuse of H.G., age 12, ¹ by his mother, the appellant. Students in H.G.'s school approached a police officer at the school who was speaking at an anti-drug program, and informed him that H.G. had been kicked by his mother. On January 29, 1996, a caseworker from the North Hudson DYFS District Office conducted an investigation, which included an interview of appellant. She lived in one bedroom of a two-bedroom apartment with her three children, H.G., age twelve; Ruben, age eight; and Dimas, who at that time was seventeen days old. Her cousin Ernesto's family lived in the other bedroom. The caseworker decided that the allegations were substantiated by the statements obtained during her investigation from various individuals, and a bruise found on H.G.'s leg where his mother had

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allegedly kicked him. The caseworker noted that appellant had not yet reported her youngest child to welfare and that she was depressed about her living situation. The caseworker reported that appellant admitted having hit H.G. with a wire hanger, scratching, slapping and kicking him, and leaving bruises. According to the caseworker's notes, appellant knew that this type of disciplinary behavior was wrong, but feared that if she did not keep H.G. from being loud, her cousin Ernesto would either hit H.G. or kick them out of the living arrangement. Apparently at the caseworker's suggestion, appellant applied for Section 8 housing to escape her current housing situation, and was put on a waiting list.

The caseworker's report of substantiated abuse under N.J.A.C. 10:129A-3.3 left the case "open to provide such services as needed." No services were provided, however, and no protective service case was filed under N.J.S.A. 9:6-8, assertedly because appellant had admitted her acts, knew that they were wrong, and agreed to change her disciplinary methods and participate in in-home counseling once she was able to move to more adequate living quarters. ²

By a May 8, 1996 letter, DYFS informed appellant that (1) the caseworker had concluded that H.G. "was abused"; (2) she was "identified as harming the child or placing the child at risk of harm"; and (3) she could appeal that decision by way of a "Regional Dispositional Conference" within ten days. Although the letter did not detail the caseworker's findings, it stated that these findings would be retained in DYFS's files and not disclosed, except as permitted by N.J.S.A. 9:6-8.10a. She was also advised that failure to seek a Regional Dispositional Conference would result in the decision becoming a "final agency decision appealable only to the Appellate Division of the Superior Court."

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Appellant requested a Regional Dispositional Conference review of the decision. On May 20, 1996, the Administrative Review Officer (ARO), Mary McArdle, acknowledged that request and informed appellant by letter that the determination would be on the basis of a record and document review, with an opportunity for her to provide relevant input or information for possible consideration in determining the correctness of the finding of substantiated abuse. McArdle also informed appellant that the record of the investigation would not be released to her because disclosure of investigatory records is limited by statute.

After the Legislature added subsection (12) to N.J.S.A. 9:6-8 .10a(b) by a June 6, 1996 amendment, appellant's attorney, on June 18, again asked DYFS for the opportunity to review her case record. DYFS failed [715 A.2d 311] to respond to this letter. Appellant's attorney repeated the request in a November 18, 1996 letter.

McArdle informed appellant's attorney on November 25, 1996, that DYFS would only disclose the information which the reviewing officer considered "necessary for a determination of the issues on appeal." This view was iterated in McArdle's March 3, 1997 letter to appellant enclosing information which McArdle considered disclosable, in the form of a summary of the caseworker's findings. ³

On March 14, 1997, appellant's attorney informed DYFS that appellant would dispute the facts in the summary prepared by DYFS. Appellant also asserts that in a March 26, 1997 telephone

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conversation McArdle again denied appellant and her attorney access to the DYFS records.

A Regional Dispositional Conference record and document review was held on April 10, 1997, attended by McArdle, appellant and her attorney, and an interpreter for appellant. Appellant gave a statement denying that the incident had occurred, describing current difficulties she was having with her son, admitting to having "grabbed at his ear" resulting in a scratch, and describing how she worked on a daily basis to remedy her son's problems. She also asserted that no one at DYFS had helped her after it had determined that the abuse was substantiated. No stenographic or sound recording record was made of this meeting.

Following the meeting, appellant's attorney submitted a written summation of factual and legal arguments, including a challenge to the procedures and the failure to disclose documents. Thereafter, McArdle concluded in a written opinion dated May 1, 1997, that the substantiation of abuse previously made was warranted. The Northern Regional Administrator approved that decision on May 5, 1997. The decision was never reviewed at any higher level within the agency. As a consequence of the finding of substantiated abuse appellant was listed in DYFS's Central Registry in accordance with N.J.S.A. 9:6-8.11 and N.J.A.C. 10:129A-3.4 as having abused a child. This appeal followed.

I.

Appellant asserts that her liberty interests are implicated by the procedures employed by DYFS as they pose a threat to (1) her "good name, reputation, honor or integrity," and her right to "avoid the defamatory label 'abuser' "; (2) her right to "contract, to engage in any of the common occupations of life"; (3) her right to be free from "the foreclosure from future employment opportunities"; and (4) her right to "establish a home and bring up children." Appellant argues that the DYFS procedure for substantiating child abuse, with its resultant consequences, denied her

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due process rights, employed fundamentally unfair procedures and violated the Administrative Procedure Act (APA). ⁴

Statutory authority for DYFS to investigate and monitor child abuse allegations appear in N.J.S.A. 9:6-8.8 to -8.20 and N.J.S.A. 9:6-8.21 to -8.82, enacted by L. 1971, c. 437, effective February 10, 1972, and L. 1974, c. 119, effective Oct. 10, 1974. Under N.J.S.A. 9:6-8.10, a person who has reason to believe that a child has been subjected to child abuse is required to report that suspicion to DYFS. The regulations adopted to implement the statute, see N.J.S.A. 9:6-8.15 and 9:6-8.72, require DYFS to evaluate the available information to determine whether that allegation is "substantiated," "not substantiated" or "unfounded." See N.J.A.C. 10:129A-3.3. In its investigation, DYFS may request records [715 A.2d 312] from "public or private institutions, or agencies including law enforcement agencies, or any private practitioners." N.J.S.A. 9:6-8.40. Upon a determination that the allegation is "substantiated," the name of the person found to have committed child abuse and any identifying information are entered into a Central Registry maintained by DYFS. ⁵ N.J.S.A. 9:6-8.11; N.J.A.C. 10:129A-3.4.

The DYFS "Support Operations" Manual (Manual) was not promulgated under the APA but recites its intent to establish a dispute resolution policy consistent with the APA ( N.J.S.A. 52:14B-1 to 24; 52:14F-1 to 13), and the Adoption Assistance and Child Welfare Act, 42 U.S.C.A. 670 to 687. The Manual states that upon an investigator/caseworker's determination that an allegation

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of abuse has been substantiated, the perpetrator is notified that (1) he or she has been so identified; (2) identifying information has been entered in the Central Registry; and, (3) he or she has the right to request a Regional Dispositional Conference to dispute those findings, at either a hearing or record and document review, at the discretion of the ARO. The Manual outlines the procedures to determine whether a Regional Dispositional Conference should be held and, if so, the type of conference review, that is whether by a hearing or a record and document review, or some combination of both.

The Manual explains that the "appellant" ⁶ may bring witnesses or submit written statements or reports on his or her behalf and may be represented by a person, who need not be an attorney, to assist in preparation of the case. For a "hearing" (which is not a trial-type proceeding, but more akin to a meeting), or in some cases where there is to be a record and document review, as occurred here, the ARO schedules a meeting with the...