NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Petitioner-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2013
On appeal from the Department of Children and Families, New Jersey Division of Youth and Family Services, Docket No. AHU-10-0244.
John J. Palitto, Jr., attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Duclos, Deputy Attorney General, on the brief).
Before Judges Koblitz and Accurso.
T.W. appeals from the February 14, 2012 final summary disposition of respondent Director of the Division of Youth and Family Services (the Division) upholding the Division's determination to substantiate abuse against T.W. in connection with a single incident of discipline of his seven-year-old daughter, Heather. Because we conclude that the matter should not have been resolved in a summary fashion by the Director, but required a hearing before the Office of Administrative Law (OAL), we reverse and remand for such a hearing.
T.W. admits to striking his daughter in the face with an open hand. The incident occurred after T.W. confronted Heather about her having plucked out all of her eyelashes and some of her eyebrows. The child had apparently engaged in the same sort of behavior some months earlier, but her parents believed that they had convinced her to stop. Heather had recently been defiant at home, refusing to eat, bathe or dress. She failed to obey or listen to her parents and was consistently argumentative. The school nurse had called a few days before this incident to report to Heather's mother, S.W., that Heather had been touching herself inappropriately at her desk.
When T.W. noticed Heather's obviously missing eyelashes and confronted her about it, she denied having begun the behavior again. When he continued to query her about it, she continued to lie to him. T.W. got upset and frustrated and struck her along the left side of her face. The next day, Heather's teacher noticed a mark over her left eye and what appeared to be a red handprint over her cheekbone. The school reported the incident to the Division and the police. Heather did not require medical attention.
An investigation revealed that this was an isolated incident. T.W. claimed that he and S.W., a physician, had been seeking a psychologist for Heather since before this incident. Both parents reported that they employed progressive discipline with Heather and her younger brother, talking with them about any misbehavior, employing "time-outs, " withholding privileges, and administering an occasional spanking. Heather confirmed that her parents rarely spanked her, and she did not appear afraid or uneasy about them. All agreed that T.W. had never hit the child in the face before this incident.
In opposition to the Division's motion for summary disposition, T.W. submitted a certification explaining the incident. He stated that he was working twelve-hour days, and that his employer was then engaged in a round of lay-offs that he feared might include him. He reported that S.W. had equally demanding responsibilities as a doctor at a large hospital. At the time of the incident, T.W. had been under the care of a psychiatrist and on medication for depression for ten years. Because of her parents' work schedules, Heather had been placed in a school after-care program her parents believed was contributing to her problems. Since the incident, Heather has been diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD) and prescribed medication. As a result, she is subject to an accommodation plan at school.
The police declined to charge T.W. The Division, however, substantiated abuse. T.W. appealed, and the Division promptly acknowledged his request for an OAL hearing. The Division did not promptly forward T.W.'s request to the OAL. After six months, T.W.'s counsel inquired as to the status of the matter. He received no response and inquired again six months later. After writing directly to the deputy assigned to the case, counsel was advised that the case was being reviewed for summary disposition by the Director "as expeditiously as possible, in the order it was received and subject to the competing demands of cases requiring priority handling."
Finally, eighteen months after T.W.'s appeal, the Division filed a motion with the Director seeking to summarily affirm the Division's determination to substantiate abuse against T.W. and deny his request for an OAL hearing. The Director granted the motion finding the facts undisputed that T.W. hit his seven-year-old daughter in her face, hard enough to leave red marks which were visible the next day. The Director found that T.W. placed his daughter in significant risk of harm and "it was by mere fortuitous circumstances that he did not hit her actual eye or cause a more serious injury." The Director found that the incident constituted ...