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Division of Developmental Disabilities v. Minnix

August 6, 2009

DIVISION OF DEVELOPMENTAL DISABILITIES, PETITIONER-RESPONDENT,
v.
SHIRLEY MINNIX, RESPONDENT-APPELLANT.



On appeal from the Department of Human Services, Division of Developmental Disabilities.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 16, 2009

Before Judges Axelrad and Winkelstein.

Shirley Minnix appeals from a final determination of the New Jersey Department of Human Services, Division of Developmental Disabilities (the Division), revoking her license to operate a community care residence (CCR) for the developmentally disabled because she physically abused and neglected the clients in her care. On appeal, Minnix argues the board's reversal of the administrative law judge's (ALJ) finding that she was acting in self-defense and thus her conduct did not constitute "abuse" under N.J.A.C. 10:44B-1.3 was arbitrary and capricious. Minnix further contends the record does not support the ALJ's and Division's finding of neglect based on her failure to notify the Division that an adult male was living with her and her failure to report prior police contact, and the Division's conclusion that a license revocation was warranted. We are not persuaded by any of appellant's arguments and affirm.

On October 20, 2004, the Division notified appellant of the revocation of her license to operate a CCR for the developmentally disabled based on allegations of abuse and neglect upon a resident entrusted to her care. See N.J.A.C. 10:44B-2.1(f)1. By letter dated November 1, 2004, she appealed the revocation, and the matter was transmitted to the Office of Administrative Law for a hearing as a contested case.

The ALJ held hearings on November 30, 2005, October 31, 2006, and January 24, 2007. The following individuals testified on behalf of the Division: James Perkins, the Burlington County Administrator of the Division's Southern Regional Office; Douglas A. Banks, a Special Response Unit (SRU) investigator for the Division; Michael Ludlow, a Borough of Palmyra police officer; and George Kuster, Chief of Licensing for Developmental Disabilities. Appellant testified on her own behalf, along with character witnesses Richard Zellman, Rosemary Burgo, Gail Furrer and Carol Ann Coghill.

Appellant testified about an altercation during the evening of November 7, 2003 with T.V., one of three individuals with developmental disabilities living in appellant's home. After appellant informed T.V. that the State had denied her additional assistance, the resident "looked weird," "jammed" and shoved appellant into a wall. Appellant responded by slapping the resident in the face. The resident then went to her bedroom and slammed the door. Appellant explained that T.V. had slammed doors but had never confronted appellant like this before, and "the only thing [appellant] could think of to stop [her] was to smack her." Appellant further related that she was upset and scared "not for [herself] but for [T.V.] because [she] had never seen her do that[,]" and that she slapped T.V. "[t]o stop [her behavior] because [appellant] had two other clients in the house and [she] didn't want it to get out of hand...."

T.V. called the police after the incident and criminal charges were filed against appellant. The municipal court judge found appellant not guilty of assault based on self-defense.

Upon learning about this incident, the Division suspended appellant's license to operate a CCR pending an investigation of the allegations of abuse and removed its clients from appellant's home. During the course of its investigation, the SRU discovered there was an adult male, Dean Woolston, who had been living in appellant's home since June 2003. Appellant did not notify the Division about him because she first wanted to see how he would get along with the clients in her home. Consequently, the Division was unable to perform the necessary background checks on Woolston. The SRU also discovered that the police had been called to appellant's home on three occasions in 2003, prior to the incident involving T.V. Appellant did not notify the Division of these incidents until the SRU's investigation and, in fact, had initially told the investigator the police only came to her home after the incident with T.V.

On October 15, 2007, the ALJ issued an initial decision. He reversed the Division's finding that appellant physically abused a client in her care. He sustained the Division's finding that appellant neglected the clients in her care based on her failure to notify the Division that an adult male was living in her home and that she had multiple contacts with the police, but recommended the Division consider a lesser penalty than license revocation.

On January 8, 2008, the Division issued a final agency decision rejecting the ALJ's finding that appellant did not physically abuse a client in her care, and revoked appellant's license to operate a CCR for the developmentally disabled. The Division did not address the ALJ's finding of neglect.

On February 25, 2008, appellant filed an appeal of the agency's decision. On leave granted, the Division filed an amplification of final agency decision on April 10, 2008, addressing the ALJ's finding of neglect. The Division affirmed the ALJ's finding that appellant neglected the clients in her care, N.J.A.C. 10:44B-1.3, but held the finding of neglect alone justified the revocation of appellant's license, N.J.A.C. 10:44B-2.1(f)1. This appeal ensued.

A strong presumption of reasonableness attaches to the actions of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525, appeal dismissed, 459 U.S. 962, 103 S.Ct. 256, 74 L.Ed. 2d 272 (1982); Newark v. Natural Res. Council, Dep't of Envt'l Protection, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). This presumption is even stronger when the ...


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