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New Jersey Department of Children and Families v. E.L.

Superior Court of New Jersey, Appellate Division

March 14, 2018

E.L., Respondent, and NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, OFFICE OF LICENSING, Petitioners-Respondents, and K.L., Respondent-Appellant.

          Submitted February 13, 2018

         On appeal from the Department of Children and Families, Docket Nos. 09-1061, 09-1133 and 09-1134.

          Amy Vasquez, attorney for appellant.

          Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Duclos, Deputy Attorney General, on the brief).

          Before Judges Fisher, Fasciale and Moynihan.


          FISHER, P.J.A.D.

         In Division of Child Protection and Permanency v. E.D.-O., 223 N.J. 166, 194 (2015), the Court found "troubling" the disposition of a child-abuse administrative proceeding that took nearly three years:

No one - parents, caretakers, or the public - is served when an issue as important as whether an adult abused or neglected a child remains unresolved for years.

         The proceedings here were glacial in comparison. Consequently, we uphold an administrative law judge's dismissal which was based on the Department of Children and Families' failure to provide complete discovery over a course of years - a circumstance that delayed until August 2015 the start of a fact-finding hearing about events that occurred more than six years earlier.



         R.W. (Richard) and his younger half-sister, F.T. (Fiona), resided in the resource home of appellant K.L. (Karen) and her husband.[1] On April 23, 2009, the Department of Children and Families received a referral from his school that Richard - then eight years old - had marks on his face resembling a handprint as well as a cut on his bottom lip. Fiona disclosed that Karen, whom both children referred to as "mom" or "mommy, " had grabbed Richard and slapped his face. After an investigation, the Department advised Karen and her husband on July 13, 2009, that their resource home license had been revoked.

         Karen timely sought a hearing but the Department "closed" the proceeding due to an ongoing criminal matter lodged against Karen about the alleged abuse. That criminal complaint was dismissed on July 29, 2010, and the administrative proceeding was reopened in September 2010.


         The matters[2] were transferred to the Office of Administrative Law, and an administrative law judge scheduled a fact-finding hearing for March 18, 2011. When the Department failed to provide discovery, the matter was adjourned to October 26, 2011; it was later adjourned to May 23-24, 2012, for the same reason.[3]

         Soon after retention of current counsel, Karen moved for an order compelling discovery. The ALJ promptly ordered, on September 15, 2011, that the Department release its complete investigation file to Karen's attorney.

         When the Department failed to comply, Karen moved in January 2012 for dismissal, asserting that years of the Department's foot-dragging has severely prejudiced her. A deputy attorney general responded that, among other things, [4] the materials sought had been forwarded that same day by separate letter. With that representation, the ALJ denied Karen's motion without prejudice.

         The following month, Karen again moved to dismiss because the Department provided in February only some of the discovery sought. Counsel emphasized that a turnover of the Department's entire file was crucial because that file documented Richard's "diagnosis and ongoing behavioral issues of gagging or choking, " a circumstance suggestive of a cause for Karen's handling the child in a way the Department viewed as abusive.

         The ALJ conducted a telephone conference and, on April 17, 2012, issued a written decision. The ALJ recounted the deputy attorney general's excuses for the failure to comply, i.e., that the deputy had not received "complete discovery from [the Department] because [the Department] refused to turn anything . . . over unless there [was] an in camera review and redaction of any material deemed confidential." The judge also observed that Karen and her husband had "rigorously" pursued discovery from day one and "[m]ore than sufficient time has been allowed for the [Department's] production of reports and other documents." The ALJ pronounced it "time for the [Department] to fulfill [its] discovery obligations or face sanctions, which may include dismissal." She directed the deputy attorney general to obtain the materials from the Department by April 20, 2012, and forward them to the OAL for assignment of another ALJ to conduct an in camera review.

         Two weeks later, Karen's attorney wrote to the ALJ to advise that the Department continued to stonewall the process. She asserted that nothing was turned over either to her or to the OAL assignment judge for in camera review. The deputy attorney general responded, claiming that "ten volumes" of materials had been turned over by the Department to her and that her own busy schedule and health problems had inhibited review of the materials prior to turnover. Karen's attorney responded a week later, reminding the ALJ that the motion to dismiss remained pending, that the Department or its attorney had in the past and continued to delay the proceedings and the turnover of discovery, and that the time had come for dismissal:

Time is ticking away. It is increasingly difficult to explain to my client why the State is permitted to disregard the [c]ourt orders. We are no further than when we filed our motion in March, despite a series of phone conferences and [c]ourt [o]rders. The procedural implications of the ...

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