DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, PETITIONER--RESPONDENT,
Argued April 9, 2014
Approved for Publication May 2, 2014.
On appeal from the Department of Children and Families, Division of Child Protection and Permanency, Docket No. AHU-08-0191.
Kevin T. Conway argued the cause for appellant.
Lori J. DeCarlo, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. DeCarlo, on the brief).
Before Judges FUENTES, FASCIALE and HAAS.
[435 N.J.Super. 394] OPINION
[435 N.J.Super. 395] FASCIALE, J.A.D.
G.R. appeals from an April 12, 2013 final agency decision by the Director (the " Director" ) of the Division of Child Protection and Permanency (the " Division" ) summarily concluding that G.R. neglected her two-year-old son by failing to exercise a minimum degree of care as required by N.J.S.A. 9:6-8.21(c)(4)(b). The Division took approximately five years to resolve G.R.'s administrative appeal and place her name on the child abuse registry (the " Registry" ). Although G.R. timely disputed the Division's initial substantiation of neglect, she lived with the uncertainty of the outcome of her challenge during the entire five years. This substantial delay was caused by agency inaction and the inadvertent misplacement of G.R.'s file by a Deputy Attorney General (" DAG" ). We reverse without prejudice, remand, and direct the Office of Administrative Law (" OAL" ) to conduct a hearing to resolve disputed material issues of fact and to address G.R.'s contention that the case should be dismissed as a matter of fundamental fairness.
G.R. acknowledges that on the afternoon of December 6, 2007, she left her son unattended in her minivan in a mall parking lot while shopping in a Target store (hereinafter referred to as " the incident" ). The parties dispute where G.R. parked, what path she took to enter the store, and the length of time she was away from her vehicle. G.R. contends that she parked twenty feet from a side entrance to the store, left her son in the minivan appropriately dressed and sleeping, ensured that he was properly secured in his car seat, turned off the engine, locked the vehicle, and returned as soon as five minutes later. Although the record is unclear about what G.R. planned to buy from Target, a Division caseworker later noted that G.R. " grabbed the few things that [G.R.] needed." As she returned to the minivan, a police officer [435 N.J.Super. 396] issued her a summons for endangering the welfare of her child.
Six days later, on December 12, 2007, the police referred the matter to the Division. At midnight that night, a caseworker arrived at G.R.'s home and verified with G.R. that the incident occurred. The caseworker observed that the house appeared to be clean and organized, and that the two-year-old and G.R.'s two other children (then eight and ten years old) were healthy, clean, and sleeping in their bedrooms. The caseworker left G.R.'s home satisfied that there were " [n]o signs of abuse or neglect."
On December 17, 2007, the caseworker returned to the home and talked to G.R., her husband, and the two oldest children. G.R. and her husband acknowledged the incident, signed a case plan agreeing that G.R. would attend parenting skills classes with a licensed social worker, and agreed to refrain from leaving their children unattended in a vehicle. Nevertheless, on the basis of the incident, the caseworker stated in her investigation summary that " [a]llegations of neglect are substantiated."
On January 28, 2008, the Division notified G.R. in writing that she neglected her son by leaving him unattended in the minivan, stating in pertinent part that
the Division is required to send to local/State police certain identifying information regarding all substantiated incidents of child abuse and neglect in their jurisdiction.
In addition, N.J.S.A. 9:6-8.10a authorizes the Division to identify confirmed perpetrators of child abuse or neglect to
agencies, persons, or entities who are mandated by statute to consider such information when conducting background screenings of employees, prospective employees, interns, or volunteers who provide, or seek to provide, services to children. For certain employment, a substantiation of child abuse or neglect will prevent you from getting or keeping a job.
The Division informed G.R. that she had the right to appeal from its initial determination and to request an OAL hearing. On February 8, 2008, G.R.'s counsel wrote to the Division, requested a hearing, and demanded discovery of the Division's file materials.
[435 N.J.Super. 397] In March 2008, the social worker who had conducted four parenting classes with G.R. notified the Division that she did not feel that G.R. was a risk to her children " in any way," and stated that the incident was " clearly a cultural difference."  The Division obtained reports from the children's pediatrician, a school nurse, and G.R.'s local police department, all showing that G.R. was a good and caring parent. As a result, the Division concluded that the children were safe, and it did not initiate a Title Nine action. On ...