NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT,
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
appeal from the Department of Children and Families, Docket
Nos. 09-1061, 09-1133 and 09-1134.
Vasquez, attorney for appellant.
S. Grewal, Attorney General, attorney for respondent (Melissa
H. Raksa, Assistant Attorney General, of counsel; Christina
Duclos, Deputy Attorney General, on the brief).
Judges Fisher, Fasciale and Moynihan.
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.
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
(Richard) and his younger half-sister, F.T. (Fiona), resided
in the resource home of appellant K.L. (Karen) and her
husband. 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resource home license had been revoked.
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.
matters 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.
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.
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,  the materials
sought had been forwarded that same day by separate letter.
With that representation, the ALJ denied Karen's motion
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.
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
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