                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2710-15T3

S.M.,

           Petitioner-Appellant,

     v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES and CAMDEN
COUNTY BOARD OF SOCIAL SERVICES,

          Respondent-Respondent.
_____________________________________

           Submitted October 17, 2017 – Decided October 27, 2017

           Before Judges Fisher and Moynihan.

           On appeal from the Department of Human
           Services, Division of Medical Assistance and
           Health Services.

           Schutjer Bogar LLC, attorneys for appellant
           (John Pendergast, on the brief).

           Christopher S. Porrino, Attorney General,
           attorney for respondent (Melissa H. Raksa,
           Assistant Attorney General, of counsel;
           Melissa Bayly, Deputy Attorney General, on the
           brief).

PER CURIAM

     Petitioner S.M. appeals a final decision by the Director of

the Division of Medical Assistance and Health Services that limited
her eligibility for Medicaid benefits because she maintained with

her son a joint bank account containing approximately $70,000. She

argues the Director did not fairly consider that her son was the

sole source of nearly $60,000 of those funds and, consequently,

the   Director's     final   decision       was   arbitrary,    capricious       and

unreasonable.

      During the pendency of the appeal, S.M. moved to supplement

the record on appeal with the depository bank's letter which

purports to confirm that her son, M.M., was the sole source of

$50,000 deposited into the account in question.1 Our colleagues on

another panel left for us a ruling on that motion. We now grant

the motion to supplement, vacate the final agency decision, and

remand for further proceedings.

      The   record   on   appeal   reveals        that   the   Director's     final

decision adopted, with some additional comments, an administrative

law   judge's      written    recommendations            formulated   after        an


1
   The bank's letter provides that in February 2009, M.M.
transferred $50,000 cash from a joint checking account with S.M.
into a personal certificate of deposit in his name only, and then
transferred the funds in the certificate account back to the joint
checking account in November 2010. S.M. closed the joint checking
account on August 25, 2011, and a check was made to her alone. The
bank's   letter  reads,   "All   funds  originated   from   [M.M.]
personally." That check – nearly $60,000 – was deposited on August
25, 2011 in another joint account; those funds are now being
attributed by S.M. by the Division. Our remand will provide the
mechanism by which any uncertainty about these funds may be
clarified.

                                        2                                   A-2710-15T3
evidentiary hearing. After hearing the testimony of a county

welfare agency representative and M.M., the ALJ rejected S.M.'s

attempts to rebut the presumption of her access to the joint

account because of his negative view of M.M.'s credibility. That

is, the ALJ rejected the contention that a substantial portion of

the checking account was "derived from the sale of M.M.'s home,"

in which S.M. had no interest, because "M.M. became confrontational

and defensive during cross examination on the issue and this

detracted from his credibility." The Director adopted the ALJ's

determination with some additional comments regarding the fact

that S.M.'s social security checks were also deposited into the

account; although relevant, that finding does not preclude the

contention that M.M. provided a substantial portion of that account

from his own funds.

     We normally do not disregard credibility findings because the

ALJ alone saw and heard the witnesses. See, e.g., N.J. Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). But, in

reviewing the transcript of the proceedings, we find no support

for the ALJ's view of M.M.'s credibility. The ALJ found M.M.

"confrontational" and "defensive" when cross-examined about the

source of the funds, but the cross-examination did not extend into

that issue. He was only questioned about his mother's physical

well-being and M.M.'s plan for his mother's future. Moreover,

                                3                           A-2710-15T3
there is nothing about the brief cross-examination that would

remotely suggest M.M. was anything other than responsive. We, of

course, have no insight into M.M.'s demeanor, but without a greater

explanation from the factfinder we are left with the strong

impression that there has been a manifest denial of justice with

regard to this particular credibility finding that calls for our

intervention. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65

N.J. 474, 484 (1974); see also Gnall v. Gnall, 222 N.J. 414, 428

(2015).

     Because the material questions surrounding the nature and

source of the checking account were resolved through what seems

to us a mistaken credibility finding, and because the information

provided by way of the motion to supplement raises legitimate

questions yet to be resolved about the impact of this checking

account on S.M.'s Medicaid eligibility, we vacate the final agency

decision   and   remand   for   further    testimony   and    submission    of

evidence regarding these factual questions about the source of the

funds.

     The motion to supplement is granted, the final agency decision

vacated,   and   the   matter   remanded   for   further     proceedings    in

conformity with this opinion. We do not retain jurisdiction.




                                     4                               A-2710-15T3
