On appeal from the New Jersey Department of Children and Families, Office of Licensing.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Grall and LeWinn.
W.M., formerly employed by facilities participating in the Head Start Program of Monmouth County, appeals from a final decision of the Department of Children and Families (Department). W.M. was hired as a bus driver in May 1994. Thereafter, he worked at several facilities associated with the Head Start Program in various positions, including custodian and supervisor of transportation. On October 17, 2008, the Department determined W.M. was disqualified for that employment due to an allegation of sexual abuse that was substantiated by the Division of Youth And Family Services (Division) in 1987. Because the agency misconstrued N.J.S.A. 30:5B-6.6, which is the statute governing disqualification based upon incidents of abuse substantiated prior to June 29, 1995, we reverse and remand for further proceedings.
The record discloses the following about the report of abuse upon which the Department relied. In January 1987, W.M.'s daughter reported that her father had fondled her breasts on more than one occasion and inappropriately kissed her on another. His wife, the child's step-mother, discussed the report with W.M. and his children, and he sought counseling.
W.M.'s wife also filed a report with the Division, which the Division investigated and deemed "confirmed." The Division's records also reflect that W.M.'s step-daughter was interviewed during this investigation and disclosed that W.M. had fondled her when she was about seventeen years old.
Although W.M. was charged with criminal sexual contact, N.J.S.A. 2C:14-3b, as a consequence of the January 1987 incident, by June 1987 he was recommended for and admitted to the pre-trial intervention program. W.M. was not required to leave his home during or after the Division's investigation or as a condition of his participation in the pre-trial intervention program. The criminal charge against W.M. was dismissed by court order of May 2, 1988, entered pursuant to Rule 3:28(c)(1). It directs that the record reflect that the matter was adjusted. The record includes no other evidence of abuse, neglect or criminal activity by W.M.
As noted above, W.M. was hired by a facility in the Head Start Program in 1994. On February 17, 2006, he received a letter from the State captioned "Notice of Substantiated Finding and Right to Appeal the Results of a CARI Background Check." Without identifying the date or circumstances, the author advised, "you have been identified as the perpetrator of a substantiated incident of child abuse or neglect" and informed W.M. that he had twenty days to appeal "the substantiated finding."
By letter dated February 23, 2006, the Department acknowledged receipt of W.M.'s request for an appeal. In that letter the Department identified the "substantiated abuse/neglect" as a finding made by a Division district office "subsequent to a protective service investigation of a January 15, 1987 referral." W.M. was further advised of "a backlog of review requests" and that he could bypass the process by requesting a hearing in the Office of Administrative Law.
On February 27, 2006, W.M. received a letter elaborating on the basis for the Department's action. It stated:
Per your request for a Dispositional Review to appeal the decision of the Southern Monmouth District Office finding you responsible [for] sexually abusing your daughter . . . during the period between January 1986 and January 1987, enclosed please find the investigative report from that referral. This report is being provided to assist you in preparing for the Dispositional Review. Since the handwritten copy of the initial report and investigation is very difficult to read, I have transcribed the report for your convenience.
On January 15, 1987, the Division received a referral reporting that [your daughter], then age [twelve], disclosed that she had been sexually molested by you. The Division conducted an investigation and determined that on three separate occasions, you engaged in sexually inappropriate conduct with your daughter. It was also disclosed that you had previously engaged in similar conduct with your ...