On appeal from the Department of Children and Families, Institutional Abuse Investigation Unit, Docket No. AHU 06-096.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically January 29, 2009
Before Judges R. B. Coleman and Sabatino.
Defendant L.P. appeals the final decision of the Department of Children and Families (the DCF), which adopted in part and modified in part the initial decision rendered by the Administrative Law Judge (ALJ) following a contested hearing. The ALJ found that "the DCF has failed to establish by a preponderance of the credible evidence that L.P. engaged in the sexual abuse/sexual molestation of A.K. and B.H. as substantiated by the DCF." After reviewing the initial decision, the DCF adopted it regarding A.K., but modified it with regard to the alleged sexual abuse of B.H. Thus, in its final decision, the DCF observed that the ALJ had found that L.P. kissed B.H. face to face for at least five seconds. Without disturbing that finding, the DCF observed further that "a kiss alone could form the basis of a sexual abuse finding."
Reasoning that "a five to seven second kiss on the lips in the context of an adult and child interaction is extremely offensive," the DCF modified the portion of the initial decision finding that sexual abuse of B.H. had not been established. As a result of such modification, the DCF ordered that L.P.'s name remain in the Central Registry, a compilation of child abuse and neglect records.*fn1 For the reasons set forth below, we reverse the portion of the DCF final decision that determined that the charge of sexual abuse of B.H. by L.P. is substantiated. We therefore remand so that the DCF may order that L.P.'s name be removed from the Central Registry.
The issue arose in the following factual context. L.P.'s wife of forty-five years, J.P., has operated a daycare business out of the couple's family residence for twenty-five years, and throughout this time L.P. has had substantial interaction with the children in his wife's care. L.P. admitted that he and his wife would kiss the children in their care on their mouths, but he described it as a "peck." He denied ever kissing any child with an open mouth and denied French-kissing either B.H. or A.K.
Mr. K., the father of two children for whom J.P. served as a caretaker, testified that sometime in March or April 2005, when he arrived at the P.'s home to pick up his seven-year-old daughter A.K. and younger son, he observed L.P. kissing another little girl, eight-year-old B.H., on the lips for a period which Mr. K. estimated to be five to seven seconds. Mr. K., who had been in law enforcement for seventeen years and who was, at the time of the alleged incident, chief of police in the municipality by which he was employed, indicated he was shocked by what he saw. On his trip home, Mr. K. telephoned his wife and told her of this incident; she became very upset, and the K. family subsequently began using a different child care provider. Mr. K. did not contact the police or any other authority at that time.
On June 21, 2005, approximately two months after this incident, the Division of Youth and Family Services (DYFS), a division of the DCF, received a referral from Mrs. K. alleging that L.P. kisses the children in his wife's care and that he inserts his tongue in their mouths. As the alleged child abuse took place at a daycare facility, DFYS forwarded the case to the Institutional Abuse Investigation Unit (IAIU), which conducted the ensuing investigation. A.K., B.H., and one other child, B.M., were interviewed by various individuals during the investigation and their statements were videotaped on several occasions. A.K. and B.H. raised more extreme accusations against defendant, including accusations that he forced the children to have intercourse, oral sex, and view computer-based pornography.*fn2 The accounts of those interviews are well-detailed in the final agency decision and do not warrant further discussion herein.
On May 10, 2006, IAIU notified L.P. and J.P. by letter that it found substantiated the allegations of abuse against L.P. with regard to minors A.K. and B.H., and that it found substantiated as to J.P. the failure to properly supervise.*fn3
L.P. and J.P. filed timely requests for hearings. Hearings on the contested case were scheduled by the Office of Administrative Law. However, prior to the commencement of the hearing, a stipulation of settlement was entered between J.P. and DCF, whereby DCF agreed to modify from "substantiated" to "unfounded" its finding of child abuse against J.P. for failure to properly supervise. The DCF agreed further to remove J.P.'s name from the list of perpetrators of neglect in the child abuse registry. Thus, the hearing proceeded solely as to the claims against L.P.
The ALJ rendered his decision in a comprehensive written opinion issued on August 9, 2007, in which he found that "substantiated abuse" as to A.K. and B.H. by L.P. was not supported by a preponderance of credible evidence in the record. The ALJ therefore recommended that the "substantiated abuse" finding by IAIU be reversed. By orders dated September 26, 2007 and November 8, 2007, the forty-five-day deadline for the final agency decision was ultimately extended to December 22, 2007.
L.P. asserts he did not receive a copy of either order extending the deadline nor did he receive requests for such extensions. Thus, on November 26, 2007, defendant wrote to the Director noting that he had received nothing thus far, and asserting that in accordance with law, the ALJ's decision was to be adopted. Defendant received no response to that communication; ...