On appeal from Division of Youth and Family Services, Department of Human Services.
Before Judges Skillman, Collester and Parrillo.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In our recent decision in New Jersey Division of Youth and Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), we considered whether the Division of Youth and Family Services (DYFS) had established a charge of child abuse or neglect against a mother who allegedly took inadequate measures to shield her child from the effect of acts of domestic violence committed upon her by the child's father. This appeal involves a similar issue in a situation where the father's acts of domestic violence caused no harm to the child and DYFS did not perceive a sufficient threat to the child to warrant the filing of a protective services action. Instead, the only action taken by DYFS was to place the mother's name in the Central Registry of persons who have been identified as committing acts of child abuse or neglect. We conclude that DYFS failed to establish that the mother committed an act of abuse or neglect that warranted this administrative action.
On October 23, 2001, DYFS sent a notice to appellant that it had conducted an investigation that "substantiated" a report that she had "neglected" her son, J.A.D., who was then six months old, and that her name had been placed in a Central Registry of persons who have committed acts of child abuse or neglect. The notice did not set forth the factual basis for this determination. The notice informed appellant that DYFS would disseminate its finding to law enforcement agencies and, upon request, any child care agency with which appellant was employed or sought employment: N.J.S.A. 9:6-8.10a authorizes the Division to identify perpetrators of child abuse or neglect to agencies, persons or entities who are mandated by statute to consider such information when conducting background screenings of employees, prospective employees, or volunteers who provide or seek to provide services to children. For certain employment, a substantiation of child abuse or neglect will result in automatic elimination from employment consideration.
On October 29, 2001, appellant sent a letter to DYFS, through counsel, appealing this determination and seeking a contested case hearing. On July 29, 2002, DYFS transmitted the matter to the Office of Administrative Law (OAL).
On March 13, 2003, appellant filed a motion with the OAL seeking "an order enjoining [DYFS] from including Appellant's name on the Central Registry of Abuse/Neglect Perpetrators." In support of this motion, appellant filed a "statement of uncontested facts" that set forth her understanding of the purported factual basis of DYFS' determination that she had neglected J.A.D.:
1. On October 12, 2001, at approximately 8:15 p.m., Appellant and [J.D.] ("the Assailant") were in front of Appellant's home . . .
2. Appellant was carrying her six-month old son, [J.A.D.] in a baby carrier.
3. Appellant and the Assailant were engaged in a verbal argument.
4. The Assailant attempted to take the baby from Appellant's possession and Appellant refused to let go of the carrier.
5. The Assailant struck Appellant in the jaw.
6. Appellant fell to the ground losing her grip on ...