On appeal from the Division of Youth and Family Services, AHU 09-1653.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2011
Before Judges Lihotz and Waugh.
Appellant S.M.P. (Sally)*fn1 appeals from the final administrative action of the Director of the New Jersey Division of Youth and Family Services (Division) finding that Sally neglected her then thirteen-year-old son A.P. (Albert) and his friend N.P. (Ned). We reverse as to Ned and remand for further proceedings as to Albert.
We discern the following facts and procedural history from the record on appeal.
In September 23, 2009, the Division was notified by Albert's school of an incident in which Albert used an aerosol spray containing hair gel to ignite a ping-pong ball and Ned's sneakers, allegedly while Ned was still wearing them. The event was recorded and displayed on YouTube. The Division's investigation revealed that Sally was present during some or all of the event. The Division substantiated neglect by Sally with respect to Albert and Ned.
In a letter dated December 10, 2009, the Division notified Sally that it had substantiated allegations of neglect against her, based on "inadequate supervision with regard to [Albert] who was neglected." Although Ned was mentioned in the Division's Investigation Summary, which was enclosed with the letter to Sally, the Division's letter itself made no mention of neglect with respect to Ned.
The December 10 letter advised Sally that she had the right to appeal the substantiation of neglect. Sally retained counsel, who timely notified the Department of Children and Families that Sally was availing herself of that right. Counsel's letter requested a hearing before the Office of Administrative Law (OAL).
Prior to the scheduling of the hearing at OAL, the Division moved for summary disposition, asserting that the facts were not in dispute and that Sally's conduct constituted neglect as a matter of law.*fn2 Sally opposed the motion on the grounds that the facts were not undisputed and that there was no neglect. In her certification in opposition, she asserted:
5. Contrary to the [Division's] allegation, I made [every] effort to intervene and prevent [Albert] from taking the actions in question.
6. Despite my efforts, it was clear to me that [Albert] and [Ned] were fascinated with the idea. As [Albert's] mother, I have distinct knowledge of his behavior and tendencies and I was certain that [Albert] would have ultimately satisfied his curiosity and performed said actions, whether in my presence or outside of [my] presence. Rather than simply protesting and then turning a blind eye to the situation and what I knew to be reality, I elected to supervise these actions so as to ensure that he was not harmed and eliminate the risk thereof.
7. I also strongly dispute that I advised the [Division's] Case Worker that I was not aware of the incident regarding ...