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T.B v. Essex County Division of Welfare and New Jersey Department of Human


January 19, 2012


On appeal from a Final Decision of the Department of Human Services, Division of Family Development, Docket No. C266155.

Per curiam.


Argued December 12, 2011 -

Before Judges A. A. Rodriguez and Sabatino.

This appeal arises out of the termination of welfare benefits that had been paid to appellant T.B. for eighty-four months under two related State programs. The Essex County Department of Welfare ("ECDW"), which administers those State programs, terminated T.B.'s benefits. It did so because she had reached the maximum time limit and was ineligible for an exemption or an extension. T.B. contested the decision, arguing that she was still entitled to receive benefits under applicable statutes and regulations.

After a hearing, an administrative law judge ("ALJ") concluded that T.B.'s benefits had been properly terminated because she was not "chronically unemployable" and had failed to otherwise demonstrate her eligibility. The ALJ's decision was adopted by the Division of Family Development ("DFD") of the New Jersey Department of Human Services. T.B. now appeals.

For the reasons that follow, and according the DFD the deference it is owed on regulatory matters within its expertise, we affirm the final administrative decision terminating T.B.'s benefits.



The applicable federal statute, the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") was signed into law in 1996. 42 U.S.C.A. §§ 601 to -619. One of the enumerated purposes of the PRWORA is to help States "end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage[.]" 42 U.S.C.A. § 601(a)(2) (emphasis added).

The PRWORA established block grants under the Temporary Aid to Needy Families ("TANF") program. 42 U.S.C.A. § 602. These block grants are awarded to individual States upon the submission of a State welfare plan that comports with the federal goals and requirements. 42 U.S.C.A. § 602(a). Families are generally only permitted to receive TANF benefits for a maximum of five years. 42 U.S.C.A. § 608(a)(7). However, the PRWORA does permit States to exempt families from the five-year limit because of proven hardship, so long as the number of exemptions does not "exceed [twenty] percent of the average monthly number of families to which assistance is provided under the State [TANF] program[.]" 42 U.S.C.A. § 608(a)(7)(C)(ii).

In 1997, the Legislature adopted the Work First New Jersey ("WFNJ") program, this State's statutory mechanism for receiving and distributing welfare benefits under the federal TANF program. N.J.S.A. 44:10-55 to -78. In creating WFNJ, the Legislature found that "[w]orking individuals and families needing temporary assistance should have the transitional support necessary to obtain and keep a job in order to be able to avoid cycling back onto public assistance." N.J.S.A. 44:10-56(c) (emphasis added). Benefits under WFNJ are intended to be "temporary" and "foster self-sufficiency." N.J.S.A. 44:10-59(b). Moreover, all adult recipients are required to "continuously and actively seek employment in an effort to remove the assistance unit of which the recipient is a member from the [WFNJ] program." N.J.S.A. 44:10-62(a).*fn1

WFNJ, like TANF, has a general time limit of sixty months for the receipt of benefits. N.J.S.A. 44:10-72(a). However, WFNJ authorizes limited exemptions from that maximum period to certain classes of recipients. In particular, recipients are exempted from the sixty-month time limit if they are:

(1) over [sixty] years of age;

(2) the parent or other relative of a disabled child or other disabled dependent who must provide full-time care for the disabled child or other disabled dependent;

(3) permanently disabled . . .; or

(4) chronically unemployable as defined by regulation of the [C]commissioner [of the Department of Human Services]. [N.J.S.A. 44:10-72(b) (emphasis added).]


T.B., the recipient whose continued eligibility under the WFNJ/TANF program is the subject of this appeal, was born in 1979. She dropped out of high school in 1997 or 1998 when she became pregnant with her first and only child.

T.B. started receiving monthly WFNJ/TANF benefits in February 1998. She received those benefits for the maximum sixty months allowed by N.J.S.A. 44:10-72(a).*fn2 T.B. then received an additional twenty-four months of benefits through a pilot program established by the DFD, Supportive Assistance to Individuals and Families ("SAIF"). See N.J.A.C. 10:90-2.20.*fn3

In March 2010, three months before T.B.'s benefits under SAIF were set to expire, a so-called "round table" conference was held to determine whether T.B. would qualify for an exemption from the applicable time limits, which would allow her to continue to receive benefits. Joyce Lacara, a family service supervisor for the SAIF program, attended the conference, along with T.B., a State representative, and another program representative. Lacara and the other officials concluded that T.B.'s case should be closed and her benefits discontinued because she was employable, having exhibited "[n]o barriers" to obtaining work.

On May 13, 2010, the ECDW gave T.B. notice that her WFNJ/TANF benefits would be terminated effective June 1, 2010. The notice stated that T.B.'s benefits were being terminated because she had received the maximum months of assistance, and she was not eligible for an extension of or an exemption from the time limit.

T.B. filed a timely request for a hearing with the DFD. The request was forwarded to the Office of Administrative Law ("OAL"). Because T.B. filed her request within fifteen days of receiving the termination notice, she continued to receive benefits until her hearing date.

The case was heard by the ALJ in July 2010. At the hearing, respondents*fn4 presented testimony from Lacara and three other program representatives. T.B., who was represented at the hearing by counsel, testified on her own behalf.

At the time of the hearing, T.B. was a thirty-one-year-old mother of one child, age twelve. The family's sole monthly income then consisted of $290 in WFNJ/TANF benefits and $411 in food stamps. T.B. participated in the Section 8 housing program and, consequently, was only responsible for paying $200 per month in rent.*fn5

The following undisputed facts concerning T.B.'s work and education history emerged at the hearing. In 2000, T.B. received her GED. Thereafter, in 2001 or 2002, she worked at a Kids Foot Locker for about twenty hours each week and was paid $6.00 per hour. T.B. was laid off from that job after seven months.

In 2002, T.B. completed the Test of Adult Basic Education ("TABE"), administered by the ECDW, which indicated that her reading skills were then comparable to those of a fifth grader and her math skills were then comparable to those of a seventh grader. Because of her low test scores, she was rejected from a nursing assistant training program.

T.B. started working in 2004 or 2005 as a sales assistant at Forever 21, a clothing store. She was paid $6.50 per hour and worked six hours per day, five days per week. She was laid off from that position after about one year.

T.B. next started working as a teacher's aide, an occupation she held for the next four years. Her first job as an aide was at Montclair Child Development in 2005 or 2006. She worked there seven hours per day, five days per week and was paid $8.50 per hour. T.B. worked there for one year before being terminated, allegedly because of a co-worker's error.

T.B. then worked as a teacher's aide at Bright Horizons Child Care starting in 2006. She worked there four or five hours per day, four days per week and was paid $8.50 per hour. T.B. was laid off from this job after nine months.

From July 2007 through July 2009, T.B. was employed at First Day Care Academy as a full-time teacher's aide. She worked there seven hours per day, five days per week and was paid $8.50 per hour.

T.B. voluntarily left her job at First Day Care Academy at the end of July 2009 in order to enroll in a dental assistant program at Drake College of Business ("Drake"). She began her studies at Drake in August 2009.

In order to become a dental assistant, T.B. was required to complete six months of study and 300 hours of unpaid externship work in a dental office. T.B. completed her six months of required schooling in February 2010 and had completed 140 of the 300 externship hours as of the time of the OAL hearing. She typically worked at her externship placement site about ten hours per week.

Given this work history, Martin Richeimer, a SAIF supervisor testified at the hearing that T.B. was "employable," noting that "[s]he was well trained" and had held jobs previously. Richeimer also asserted that her TABE scores from 2002 "are older than the State's criteria [] to be accepted as low lit[eracy] at this point."*fn6

Rene Johnson, an intensive case manager for SAIF, testified that prior to the March 2010 case conference, T.B. herself reported that she faced no barriers to employment. Johnson also noted that she had been supportive of T.B.'s decision to enroll in the dentistry program at Drake.*fn7

Upon considering these proofs, the ALJ affirmed the termination of T.B.'s benefits in an initial decision dated August 9, 2010. The ALJ specifically found that T.B. had not shown that she faced any barriers to employment. He observed that T.B. "holds a GED; reads, writes, and speaks English fluently; and has some post-secondary vocational training." The ALJ also found that T.B. "has an extensive and successful work history" and that she "would still be working at [her prior job] but for the fact that she voluntarily quit to enter Drake College[.]"

T.B. filed exceptions with the DFD, requesting that the ALJ's initial decision be reversed. T.B. argued that she qualified for an exemption from the sixty-month limit because she was chronically underemployed and had reading skills comparable to those of a fifth grader as measured by the TABE.*fn8

On September 14, 2010, the DFD issued its final agency decision, adopting the ALJ's initial decision and affirming the termination of T.B.'s benefits. This appeal by T.B. followed.

We denied T.B.'s emergent motion to stay the agency's termination of benefits pending appeal. The Supreme Court likewise denied relief after briefly issuing and then dissolving a temporary stay.



On appeal, T.B. mainly contends that the agency and the ALJ erred in not classifying her as chronically unemployable, making her, therefore, ineligible for continued benefits beyond the sixty-month maximum. T.B. further contends that the agency erred in its failure to recognize sufficiently her low test scores on the TABE. We disagree.

Our scope of review of T.B.'s arguments is limited. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function[.]" Id. at 28. They are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

Additionally, "[i]t is settled that [a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)).


The pivotal issue before us is whether the DFD erred in concluding that T.B. was not "chronically unemployable," and thus not entitled to an exemption from the sixty-month time limit under N.J.S.A. 44:10-72(b). The pertinent regulation adopted by the Commissioner of the Department of Human Services defines the term "chronically unemployable" as follows:

i. A chronically unemployable adult cannot be identified until at least [thirty-six] months have been spent in the WFNJ program and the adult exhibits a limited and inconsistent or no history of full-time, ongoing successful gainful employment (including, but not limited to, multiple or lengthy periods of unemployment or underemployment) or successful participation in work activities despite good faith efforts which have been documented.

ii. No single factor or employment barrier is used to make a determination of chronically unemployable, but rather, an individual shall be considered chronically unemployable if he or she has a limited and inconsistent or no work history as defined above and any one of the following criteria:

(1) Has low literacy or math level (below sixth grade); or

(2) Exhibited personal, social or psychological factors . . . which indicate that the person is unlikely to ever get and/or keep a job in the foreseeable future-any one of the following which would require medical or other appropriate documentation and/or trigger a referral to SSI: . . .

(E) As long as New Jersey is within the [twenty] percent exemption limit allowed under PRWORA, adults who have participated in the [SAIF] program and demonstrated continued efforts to engage in education or employment activities but after [twenty-four] months of intensive intervention exhibit more than one barrier to employment, such as:

(I) Lack of a high school diploma/GED;

(II) Limited English proficiency;

(III) Lack of skills/training;

(IV) Criminal record (resistant to expunction or bonding)

(V) Lack of work experience;

(VI) Child care unavailable for a special needs child;

(VII) Family problems of participant or dependent involving behavioral health system, DYFS or legal issues; or

(VIII) Chronic health problems of a participant or dependent . . .

[N.J.A.C. 10:90-2.4(a)4 (emphasis added).]

The regulation does not define the term "underemployment."*fn9

However, the Commissioner has defined "full-time employment" as "employment unsubsidized by any level of government in which a person is engaged for at least [thirty-five] hours per week." N.J.A.C. 10:90-15.1. Similarly, the United States Bureau of Labor Statistics considers persons who are involuntarily working fewer than thirty-five hours per week to be "underemployed." U.S. Bureau of Labor Statistics, The Nation's Underemployed in the "Great Recession" of 2007-2009 (2010).

T.B. insists that she is "chronically unemployable" pursuant to N.J.A.C. 10:90-2.4(a)4. She notes that her TABE scores from 2002 indicated that her reading skills were then below those of a sixth grader. She argues that the ECDW never considered whether she was eligible for an exemption under the "chronically unemployable" standard because they found that she did not exhibit "multiple barriers to employment" pursuant to N.J.A.C. 10:90-2.4(a)4ii(2)(E).

T.B. further argues that the regulatory language should be read with an understanding of WFNJ's statutory purpose, i.e., of increasing self-sufficiency and breaking the cycle of poverty. She asserts that terminating her benefits at this point will prevent her from pulling herself and her child out of poverty at a moment when she is on the verge of embarking on a new profession that will allow her to be financially independent.

The agency had sound reasons for rejecting these contentions. As respondents aptly note in their brief, T.B has "an extensive, successful work history dating back to 2001." T.B. has completed her dental assistant training, a credential which itself is consistent with the agency's determination that she is employable. Moreover, T.B.'s reading skills, which were previously measured below those of a sixth grader in 2002, are likely to have improved, given that she has since completed post-secondary studies.

In order to obtain an exemption from the benefit time limits because of "chronic unemployability," a recipient first must have a limited, inconsistent, or no work history. N.J.A.C. 10:90-2.4(a)4ii. Second, the recipient must be either functioning below a sixth grade math or reading level or exhibit personal, social, or psychological factors that prevent her from keeping a job. Ibid. The record does not establish that T.B. exhibits such personal, social, or psychological issues. Thus, T.B. would only be eligible for an exception as a "chronically unemployable" person if she has an insufficient work history and has skills below a sixth grade level. Ibid.

With respect to T.B.'s work history, the record shows that she was employed for at least twenty hours per week for over five of the twelve years that she has been receiving TANF benefits.*fn10 T.B. was unemployed or underemployed primarily during the early years in which she was receiving benefits, whereas, more recently, she was generally employed at or close to a full-time level. She left her last full-time job voluntarily to pursue job skills training that would make her more marketable as an employee.

Given these circumstances, we are not persuaded that the agency's rejection of T.B.'s claim of chronic underemployment was "arbitrary, capricious, or unreasonable[.]" Herrmann, supra, 192 N.J. at 27. Duly bearing in mind the agency's expertise, we sustain the DFD's determination that T.B. did not have a sufficiently limited or inconsistent work history to be deemed "chronically unemployable" under N.J.A.C. 10:90-2.4(a)4ii. Even if we were to find that T.B. has a sufficiently limited and inconsistent work history to meet that aspect of the regulation, the cessation of her benefits should still be affirmed because the proofs from the hearing reasonably suggest that T.B. is no longer reading below a sixth grade level and therefore fails to meet the second criterion for an exemption under N.J.A.C. 10:90-2.4(a)4ii(1).

T.B.'s 2002 test results indicated that she was then reading at a mid-fifth grade level. However, since 2002, T.B. has completed the dentistry program at Drake. It logically can be inferred that she would need to be able to read on at least a sixth grade level to complete such a post-secondary program. Given that her TABE scores are over nine years old as well as the fact there is no regulation declaring that TABE is the only and conclusive basis to assess a person's reading level, the agency had a reasonable basis to conclude that T.B. has improved her reading skills to at least a sixth grade level.

We also reject T.B.'s claim that the termination of her benefits, after eighty-four months, was against the policy objectives of the WFNJ/TANF program. As we have already noted, when enacting WFNJ, the Legislature found that "[w]orking individuals and families needing temporary assistance should have the transitional support necessary to obtain and keep a job in order to be able to avoid cycling back onto public assistance." N.J.S.A. 44:10-56(c) (emphasis added). The Supreme Court has also underscored that "the primary purpose of WFNJ is to encourage employment, self-sufficiency and family stability . . . [t]oward that end, WFNJ contains mechanisms designed to promote independence and decrease long term reliance on welfare payments." Sojourner A. v. N.J. Dept. of Human Servs., 177 N.J. 318, 327 (2003).

It bears noting that nothing in the record indicates that T.B. was precluded from seeking admission to the Drake program earlier than she did. For example, had T.B. begun her training at Drake in 2008, she presumably could have completed it before reaching her benefit limit. Instead, she chose to begin the program in August 2009, when she had only ten months of benefits left. DFD should not be required to continue pay T.B. benefits beyond the program maximum where she waited until month seventy-four to start her dental assistance training.

Simply stated, WFNJ/TANF is intended to be a temporary program, not a perpetual one. T.B. has already received seven years of benefits. Her participation in the program has been far from brief. Indeed, allowing her to continue to receive benefits at this time could potentially lead to dependence instead of self-sufficiency, thereby undermining the very purposes of the statute. See Sojourner A. supra, 177 N.J. at 327. We also must respect the fiscal constraints of the government in defining eligibility for social welfare programs. See Barone v. Dep't of Human Servs., 107 N.J. 355, 373 (1987).

Although we understand the difficulties that T.B. has faced, we cannot conclude that terminating her benefits after eighty-four months was contrary to the legislative purposes of the program. The DFD's final agency decision was sound and entirely consistent with the letter and spirit of the applicable statutes and regulations.


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