On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 08-0308.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, J. N. Harris and Koblitz.
Defendant, Michael E.,*fn1 appeals from a September 20, 2010, final decision of the Director of the New Jersey Division of Youth and Family Services (the Division). The Director found that, on or about February 9, 2004, Michael committed an act of child abuse as defined by N.J.S.A. 9:6-8.21(c)(4)(b) by striking his son Mike, causing injuries to Mike's upper body and left arm. Michael claims that his due process rights were violated, and that he was deprived of a fair hearing, because the Office of Administrative Law (OAL) and the Division neglected to facilitate the presentation of Mike's testimony, who at the time of the hearing was incarcerated in the Juvenile Medium Security Facility in Bordentown. Because we agree that Michael's due process rights were materially infringed to the point that we lack confidence in the validity of the agency determination, we reverse and remand for a new hearing.
The substantive allegations that undergird this matter are not directly relevant to our determination. However, they are hotly contested by Michael. Accordingly, we will briefly outline the parties' contentions.
On February 9, 2004, then-ten-year-old Mike reported to a teacher that his father had beaten him with a belt, and showed the teacher bruises on his body. The matter was referred to the Division, which opened an investigation. After review, the Division substantiated the abuse in a June 8, 2004 Findings Report.
In late February 2008, Michael filed a pro se administrative appeal. The Division's appellate brief refers to this filing as a "timely request," but we cannot discern why more than forty-four months elapsed between the Findings Report and Michael's letter to the Division requesting review of the "several substantiations that [he had] accumulated from [the Division]."
The matter was transmitted to the OAL and an Administrative Law Judge (ALJ) was assigned to the case. As the hearing date approached, Michael requested an "immediate adjournment" because "it [was] imperative that [Mike] be at the hearing." Michael further expressed his frustration as follows: "Since [the ALJ] never issued a writ to have [Mike] brought to court it is now my job to dredge through this legal system and try and find him myself." On March 25, 2009, the ALJ found that good cause was demonstrated for an adjournment, and granted Michael's request. The hearing was then scheduled for a "peremptory hearing on February 16 and 17, 2010" (emphasis in the original). The ALJ further noted, however, that the Office of Administrative Law does not issue Writs. However, in preparing his case, petitioner [(Michael)] may refer to N.J.A.C. 1:1-11.1.
In a letter to the ALJ dated January 20, 2010, Michael listed nine potential witnesses, including Mike with a mailing address at the Bordentown juvenile facility. The letter contained the following postscript:
P.S. I am requesting that the court issue a "writ" to have [Mike] brought to the trial, if this option is not available. I then request a VTC, I was informed by his social worker . . . that we can have a VTC (video tele-conference) for the witness which [sic] is currently in the custody of the Bordentown Juvenile Justice Commission.
At the February 17, 2010 evidentiary hearing, testimonial evidence was presented by three witnesses: a Division supervisor who had no first-hand knowledge of the Division's involvement with the family; Michael; and Mike's younger brother Matthew, who was nine years old at the time of the alleged abuse. Michael testified, "[he] never hit [his son], [he] would never beat [his son]." Matthew denied telling a Division ...