Opinion
DOCKET NO. A-0805-10T4
05-09-2012
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, Petitioner-Respondent, v. M.E., Respondent-Appellant.
Greenberg Traurig, LLP, attorneys for appellant (Joshua Hager, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, J. N. Harris and Koblitz.
On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 08-0308.
Greenberg Traurig, LLP, attorneys for appellant (Joshua Hager, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief). PER CURIAM
Defendant, Michael E., appeals from a September 20, 2010, final decision of the Director of the New Jersey Division of Youth and Family Services (the Division). The Director found that, on or about February 9, 2004, Michael committed an act of child abuse as defined by N.J.S.A. 9:6-8.21(c)(4)(b) by striking his son Mike, causing injuries to Mike's upper body and left arm. Michael claims that his due process rights were violated, and that he was deprived of a fair hearing, because the Office of Administrative Law (OAL) and the Division neglected to facilitate the presentation of Mike's testimony, who at the time of the hearing was incarcerated in the Juvenile Medium Security Facility in Bordentown. Because we agree that Michael's due process rights were materially infringed to the point that we lack confidence in the validity of the agency determination, we reverse and remand for a new hearing.
We employ pseudonyms for the family members.
I.
The substantive allegations that undergird this matter are not directly relevant to our determination. However, they are hotly contested by Michael. Accordingly, we will briefly outline the parties' contentions.
On February 9, 2004, then-ten-year-old Mike reported to a teacher that his father had beaten him with a belt, and showed the teacher bruises on his body. The matter was referred to the Division, which opened an investigation. After review, the Division substantiated the abuse in a June 8, 2004 Findings Report.
In late February 2008, Michael filed a pro se administrative appeal. The Division's appellate brief refers to this filing as a "timely request[]," but we cannot discern why more than forty-four months elapsed between the Findings Report and Michael's letter to the Division requesting review of the "several substantiations that [he had] accumulated from [the Division]."
The matter was transmitted to the OAL and an Administrative Law Judge (ALJ) was assigned to the case. As the hearing date approached, Michael requested an "immediate adjournment" because "it [was] imperative that [Mike] be at the hearing." Michael further expressed his frustration as follows: "Since [the ALJ] never issued a writ to have [Mike] brought to court it is now my job to dredge through this legal system and try and find him myself." On March 25, 2009, the ALJ found that good cause was demonstrated for an adjournment, and granted Michael's request. The hearing was then scheduled for a "peremptory hearing on February 16 and 17, 2010" (emphasis in the original). The ALJ further noted, however, that
the Office of Administrative Law does not issue Writs. However, in preparing his case, petitioner [(Michael)] may refer to N.J.A.C. 1:1-11.1.
In a letter to the ALJ dated January 20, 2010, Michael listed nine potential witnesses, including Mike with a mailing address at the Bordentown juvenile facility. The letter contained the following postscript:
P.S. I am requesting that the court issue a "writ" to have [Mike] brought to the trial, if this option is not available. I then request a VTC, I was informed by his social worker . . . that we can have a VTC (video tele-conference) for the witness which [sic] is currently in the custody of the Bordentown Juvenile Justice Commission.
At the February 17, 2010 evidentiary hearing, testimonial evidence was presented by three witnesses: a Division supervisor who had no first-hand knowledge of the Division's involvement with the family; Michael; and Mike's younger brother Matthew, who was nine years old at the time of the alleged abuse. Michael testified, "[he] never hit [his son], [he] would never beat [his son]." Matthew denied telling a Division worker that Michael had beaten Mike. He further testified that he "never, ever" saw his father hit his brother.
Documentary evidence was also presented to the ALJ, including — over the Division's objections — a seven-page, undated and handwritten letter allegedly prepared by Mike. The letter explained, in pertinent part, that Mike made "a big mistake . . . a long time ago" when he "went to school and told them that my father hit me but he never touched me." The letter further indicated that Mike answered "yes" when he was questioned whether his father struck him because "[he] thought that [he] could [then] go live with [his] mom." The letter concluded, "Thank you for your time and once again I would like to say sorry for lieing [sic] that was not right and please allow me to live with my dad agin [sic] please and I'm sorry. [T]hank you."
In its Initial Decision, the ALJ concluded that the Division had "met its burden of proving that child abuse should be substantiated." The ALJ found Michael's denial that he beat Mike "incredible," and that the Division's evidence — including the Division case file containing interviews, medical reports, and photographs -- was more persuasive than the evidence presented by Michael. Accordingly it found that "[Michael] hit his son [Mike]."
The Director of the Division reviewed Michael's exceptions to the ALJ's Initial Decision, including his claim that his ability to produce evidence was impeded by the ALJ's failure to help him produce Mike at the hearing. The Director concurred in the ALJ's findings and conclusions, adopted the ALJ's Initial Decision, and affirmed the finding of abuse. This appeal followed.
II.
Our scope of review of the Division's Final Decision is the following:
In reviewing a final decision of a State administrative agency, we "must defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Thus, we are bound to uphold an agency's decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). However, we are "in no way bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer Affairs of Dep't of Law & Public Safety, 64 N.J. 85, 93 (1973). "[I]f an agency's statutory interpretation is contrary to the statutory language, or if the agency's interpretation undermines the Legislature's intent, no deference is required." Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008) (quoting In re New Jersey Turnpike Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997)) (internal quotation marks omitted).Here, it is not that the agency's decision is manifestly unsupported by the competent, relevant, and reasonably credible evidence in the record. Rather, it is the undisputed fact that the OAL and the Division conducted a full hearing without facilitating Michael's reasonable request for an opportunity to present Mike's testimony. See Peterson v. Peterson, 374 N.J. Super. 116, 125 (App. Div. 2005) ("[A]s a matter of fundamental fairness, defendant had the right to present witnesses in his defense.").
[N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301-02 (2011)].
The due process deficiency of not providing a mechanism for the presentation of a critical witness was compounded by the ALJ's consideration of what passed for Mike's handwritten letter. If Mike had testified, even by telephone, the letter's authenticity could have been confirmed and a fuller understanding of the putative recantation would have been provided. Moreover, Michael had represented to the ALJ that according to Mike's social worker, a video tele-conference was possible. Although we do not know the logistical details of how that could have been implemented, it was not so far-fetched that further inquiry by the OAL and Division would have been futile.
Ironically, there were several telephonic case management conferences in this matter. If that expedient were available for pre-trial matters, we fail to see why it would not have been a viable option for Mike's testimony on the date of the hearing. See N.J.A.C. 1:1-15.8(e) (recognizing that testimony by telephone in an administrative proceeding is permitted under certain circumstances).
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We do not suggest that the OAL or Division had an affirmative obligation to make the presentation of Michael's case easy. A pro se litigant, however, is entitled to due process, and here Michael did not receive all that he was due. The ALJ's advice to Michael on March 25, 2009, that "the Office of Administrative Law does not issue Writs," was technically correct, but the ALJ was on notice of Michael's concern, and did nothing more to fulfill its obligation to facilitate a search for the truth other than citing an OAL rule of procedure permitting a party to serve subpoenas. Cf. State v. Garcia, 195 N.J. 192, 202-03 (2008) (recognizing the right of criminal defendants to the government's assistance in compelling the attendance of favorable witnesses at trial). The Director also minimized Michael's exception by failing to consider the due process implications of Mike's non-appearance at the hearing.
Because Michael did not have a full opportunity to present his case due to his son's unavailability, we reverse the finding of abuse and remand for a new hearing. We do not know Mike's present whereabouts and we are unwilling to predict whether he is now available to testify. Our decision does not foretell whether, if produced, Mike will testify in accordance with his handwritten letter or even convince the agency that Michael did not abuse him.
Reversed and remanded for further proceedings in accordance with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION