On appeal from the New Jersey Division of Youth and Family Services, Agency Docket No. AHU 05-019.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Grall.
M.C. appeals from a final decision of the Director of the Division of Youth and Family Services (DYFS), issued on September 12, 2008, which rejected a recommended initial decision of an Administrative Law Judge (ALJ) and found that a charge of child abuse against appellant had been substantiated.
The Director's finding of child abuse was based on an incident that occurred in the kitchen of appellant's home on July 26, 2000. When appellant returned home from grocery shopping with her two children, C.C., who was five months old, and W.C., who was four years old, she found a sealed box on her porch. She put C.C., who had fallen asleep, in an upstairs bedroom, and went back to the kitchen to open the box. The linoleum floor in the kitchen was wet and slippery because it was raining outside and appellant and W.C. had tracked in water while coming into the kitchen to put away the groceries. Appellant picked up a large pair of sharp scissors to open the box. However, W.C. wanted to open the box himself and tried to grab the scissors from appellant. When appellant told W.C. he could not open the box, he became agitated. W.C. left the kitchen to find another pair of scissors, but he was unsuccessful. When W.C. returned to the kitchen, still agitated, he kicked the kitchen garbage can and started to climb up a stool to gain access to the scissors appellant was using to open the box. Appellant then attempted to push W.C. away from the scissors with her foot and kicked him in the leg. W.C.'s feet slipped out from under him, and he fell down. As a result of this incident, W.C. suffered a fractured left femur.
The Mercer District Office of DYFS conducted an investigation of the incident, and on August 14, 2000, it sent a letter to appellant notifying her that "child abuse was substantiated. You have been identified as harming the child or placing the child at risk of harm." The letter further indicated that appellant could challenge the DYFS District Office's finding of substantiated child abuse by contacting "the Administrative Review Officer . . . to request a Regional Dispositional Conference."
By letter dated September 26, 2000, appellant's counsel requested such an administrative review.
DYFS took no further action regarding the matter for nearly four years. On July 24, 2004, DYFS provided appellant with a copy of the investigative report that had resulted in the District Office's finding of substantiated child abuse and offered appellant an opportunity to respond either in writing or in person.
Thereafter, on February 9, 2005, appellant and her counsel presented their opposition to the finding of substantiated child abuse at a meeting held at the Mercer District Office.
On February 14, 2005, an Administrative Review Officer issued a report which affirmed the Mercer District Office's finding of substantiated child abuse based on the July 26, 2000 incident. In reaching this conclusion, the Review Officer stated:
There is no dispute about the facts of this case. [Appellant] acknowledges kicking, pushing or in her words "scooting" [W.C.] on the leg to keep him from grabbing the scissors on July 26, 2000.
Although the situation required intervention to keep [W.C.] away from the scissors, the Review Officer concludes that [appellant's] action(s) in the incident were not "necessary or justified, reasonable or appropriate" and that the preponderance of credible evidence does support the determination that abuse occurred. The circumstances of the incident; the injury sustained by ...