January 14, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PETITIONER-RESPONDENT,
On appeal from the New Jersey Division of Youth and Family Services.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2012 - Before Judges Parrillo and Maven.
Appellant I.E. appeals from an August 3, 2010 final order of the Division of Youth and Family Services (Division)*fn1 denying her request (1) for an administrative hearing to contest the agency's substantiated finding of child abuse, N.J.S.A. 9:6-8.21, over ten years ago; and (2) to remove her name from the Division's child abuse registry. We affirm.
Some background is in order. Following its investigation of a July 8,
1998 referral, the Division substantiated I.E.'s abuse of her
thirteen-year old child, N.A. On October 14, 1998, the Division
notified I.E. of her right to challenge the finding by way of a
regional dispositional conference,*fn2 which I.E. then
requested on October 21, 1998. Subsequently, on November 20, 1998, an
administrative review officer (ARO) contacted I.E. regarding the
regional dispositional review procedures. On May
6, 1999, the ARO again wrote to I.E. informing her of the agency's
internal preliminary record review results; invited her to submit any
information to dispute the material facts by May 27, 1999; and advised
her that failure to submit a response by that date would be considered
a withdrawal of her appeal request and that the finding would become a
final agency decision appealable to the Appellate Division.*fn3
Shortly thereafter, on May 17, 1999, I.E., through counsel,
requested an OAL hearing to contest the substantiated abuse finding,
thereby bypassing the agency's internal dispositional review process.
On May 19,
1999, the ARO confirmed receipt of this request.
While the administrative process was still pending, on May 12, 1999, the Division filed an order to show cause and verified complaint in the Family Part and, as a result, was granted custody of N.A. Due to the ongoing, active litigation in the Family Part relating to the same subject matter on appeal administratively, on June 15, 1999, the ARO informed I.E.'s counsel that I.E. had no further right of administrative appeal. That same day, the Family Part judge in the protective services (FN) litigation found by a preponderance of the evidence that I.E. had abused and neglected N.A. within the meaning of N.J.S.A. 9:6-8.21. Following this finding, the FN litigation was terminated on August 19, 1999 as the Division's complaint was dismissed and N.A. was returned to I.E.'s custody. As a result of the court's finding, I.E. was subject to the mandatory reporting requirements of the agency's child abuse registry, N.J.S.A. 9:6-8.11. I.E. did not appeal the Family Part's abuse and neglect finding either on an interlocutory basis or following dismissal of the protective services litigation.
More than ten years later, after her request as a potential relative resource placement was denied on the basis of the 1998 abuse substantiation, I.E., on July 2, 2010, requested both removal of her name from the child abuse registry and an OAL hearing to appeal the Division's 1998 substantiated finding of child abuse. On August 3, 2010, the Division notified I.E. that her request for an OAL hearing was denied, pursuant to N.J.A.C. 10:120A-1.2(f), because the 1998 substantiated incident was previously litigated in the Family Part and resolved in the court's June 15, 1999 fact-finding order. She was further advised that the denial could be appealed to the Appellate Division. I.E.'s motion for reconsideration was denied as well.*fn4
This appeal follows in which I.E. raises the singular issue:
THE DIVISION OF YOUTH AND FAMILY SERVICES CHARGED [I.E.] WITHOUT MERIT NOR PROOF WITH CHILD ABUSE/NEGLECT AND PROCEEDED TO TAKE CUSTODY OF APPELLANT'S SON [N.A.] ON MAY 12, 1999. AT THE AUGUST 19, 1999 FACT FINDING COURT PROCEEDINGS, THE HONORABLE JUDGE [ ], DOCKET NUMBER FN-09-172-99 DISMISSED THE CHARGES OF ABUSE/NEGLECT AND RETURNED CUSTODY OF APPELLANT SON TO HER.
DESPITE THE DISMISSAL [, I.E.'S] NAME REMAINED ON THE CHILD ABUSE CENTRAL REGISTRY. THIS WAS NOT MADE AWARE TO THE APPELLANT NOR HER ATTORNEY [ ] AT THE TIME. APPELLANT BELIEVES THIS WAS A GROSS ERROR ON THE PART OF THE DIVISION AND THE APPELLANT'S NAME [I.E.] SHOULD BE REMOVED IMMEDIATELY, DATED BACK TO THE HEARING DATE OF THE FACT FINDING HEARING OF AUGUST 19, 1999.
In essence, appellant contends she is entitled to removal of her name from the child abuse registry because the Family Part, in dismissing the protective services litigation, adjudicated her not to have abused or neglected N.A. Appellant, however, misperceives the import of the court's fact-finding order. Following a hearing at which I.E. was represented by counsel and afforded all the procedural process due her, the court entered an order on June 15, 1999, expressly finding, by a preponderance of the evidence, that I.E. "abused/neglected" N.A. "within the meaning of N.J.S.A. 9:6-8.21." I.E. never appealed this finding following dismissal of the protective services litigation on August 19, 1999. This finding, which confirmed the agency's October 14, 1998 abuse substantiation, subjected I.E. to the mandatory reporting requirements of the Division's child abuse registry, N.J.S.A. 9:6-8.11.
Given this final adjudication on the merits of the issue, appellant is simply not entitled to relitigate the abuse/neglect determination in a subsequent administrative proceeding ten years after the court disposition.*fn5 As the Division noted in its letter denying I.E.'s request for an OAL hearing, "[s]ince you received due process in family court concerning the abuse allegation, pursuant to N.J.A.C. 10:120A-1.2(f), you are not entitled to an administrative hearing." Indeed, N.J.A.C. 10:120A-1.2(f), which was promulgated pursuant to the agency's duly delegated power to determine what controversies may be heard and when, see N.J.S.A. 9:3A-7(g); N.J.S.A. 9:6-8.72, provides that a person is not entitled to an administrative hearing to challenge an agency determination when the same issue which formed the basis for that determination was already adjudicated in a court of law. As such, the Division's August 3, 2010 denial of I.E.'s OAL hearing request was proper and in accordance with law. As a consequence of that denial, the Family Part's June 15, 1999 order adjudicating I.E. to have "abused/neglected" her child remains the final order from which no appeal had been taken and, accordingly, compels the continued placement of I.E.'s name on the Division's child abuse registry.