OFFICE OF CHILDREN'S SERVICES v. E.T.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0496-06T20496-06T2

OFFICE OF CHILDREN'S SERVICES,

Respondent,

v.

E.T.,

Appellant,

and

E.T.,

Appellant,

v.

CAMDEN COUNTY,

Respondent.

 

Submitted October 3, 2007 - Decided

Before Judges Cuff, Lisa and Simonelli.

On appeal from the Final Decision of the Department of Human Services, Office of Children's Services and the Final Administrative Action of the New Jersey Merit System Board, Docket No. 2005-12.

The Murray Law Firm, L.L.C., attorneys for appellant, E.T. (Karen A. Murray, of counsel; Mary E. Hennessy-Shotter, on the briefs).

Anne Milgram, Attorney General, attorney for respondent, Office of Children's Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Sean M. Gorman, Deputy Attorney General, on the brief).

Deborah Silverman Katz, County Counsel, attorney for respondent, Camden County (Antonieta Paiva Rinaldi, Assistant County Counsel, on the brief).

Anne Milgram, Attorney General, attorney for the Merit System Board (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant E.T. appeals from the June 19, 2006, Final Decision of respondent Department of Human Services Office of Children's Services (OCS) affirming the finding of an administrative law judge (ALJ) that E.T's name and the substantiated physical child abuse finding of the Division of Youth and Family Services (DYFS), Institutional Abuse Investigation Unit (IAIU), shall remain in the Central Registry of substantiated child abuse findings pursuant to N.J.S.A. 9:6-8.21(4)(b) and (6). E.T. also appeals from the August 11, 2006, Final Administrative Action of the Merit System Board (Board) affirming his removal from employment as a Juvenile Detention Officer (JDO) with the Camden County Youth Center (Youth Center).

On this appeal, E.T. raises the following arguments:

POINT I

THE DECISIONS OF THE OFFICE OF CHILDREN'S SERVICES AND THE MERIT SYSTEM BOARD ARE ARBITRARY, CAPRICIOUS AND UNREASONABLE AND THEREFORE MUST BE REVERSED AND REMANDED FOR A NEW HEARING AS THE AGENCIES ADOPTED THE DECISION OF THE ADMINISTRATIVE LAW JUDGE WHICH FOCUSED ON CREDIBILITY AND APPELLANT WHO APPEARED PRO SE WAS PRECLUDED FROM PRESENTING THE BEHAVIOR LOG AND MEDICAL DOCUMENTS OF HIS ACCUSER IN AN EFFORT TO ATTACK HIS ACCUSER'S CREDIBILITY.

POINT TWO

THE DECISIONS OF THE OFFICE OF CHILDREN'S SERVICES AND THE MERIT SYSTEM BOARD ARE ARBITRARY, CAPRICIOUS AND UNREASONABLE AND THEREFORE MUST BE REVERSED AND REMANDED FOR A NEW HEARING AS APPELLANT WAS NOT PROVIDED WITH THE FULL SECURITY MEASURE POLICY WHICH HE WAS ACCUSED OF VIOLATING IN DISCOVERY AND WAS ONLY PROVIDED WITH THE COMPLETE POLICY AFTER HE HAD EXAMINED THE RELEVANT WITNESS.

We affirm.

I

The Youth Center hired E.T. on September 25, 2000. In connection with his employment, he took the "Defensive Tactics and Handcuffing" course, which trained him in basic handcuffing and defensive techniques for potentially confrontational situations with juvenile residents.

During E.T.'s employment, the IAIU investigated him six times on allegations of physically abusing juvenile residents by aggressively applying restraints. In five instances, the IAIU found E.T. applied a dangerous technique to subdue a minor. Four instances resulted in a finding of "not substantiated with concerns," meaning there was "some indication that a child was harmed or placed at risk of harm but does not indicate that the child is an abused or neglected child." N.J.A.C. 10:129-1.3 (amended 2005). As a result of these findings, however, E.T. had to be retrained for forty hours in the "Defensive Tactics and Handcuffing" course. This marked the first time a JDO had to be retrained in that course.

In addition, E.T.'s annual evaluations revealed he had "a tendency to get down to their level and intimidate residents. Egging them on in a confrontational manner," used discipline as a form of "punishment rather than corrective measures," and was verbally abusive.

On December 6, 2003, D.G. was a seventeen-year-old resident in the Youth Center, who had previously been placed on honors for his good behavior. Prior to this time, D.G. had never filed a grievance against a JDO and E.T. never had a problem with him.

On December 6, 2003, D.G. was involved in three incidents, the last of which is at issue here. The first incident occurred on the 7:00 a.m. to 3:00 p.m. shift and resulted in D.G. being voluntarily taken to isolation without injury. He returned to his unit at about 3:00 p.m. E.T. was not involved in this incident. The second incident involved D.G. acting in a disruptive manner because he lost privileges as a result of the first incident. He was again taken to isolation without injury. E.T. retrieved D.G. from isolation and returned him to his unit. The third incident occurred soon thereafter.

One of the reasons D.G. was upset on December 6, 2003, was that his aunt died and his mother had called to say she was not coming to see him. He was talking on the telephone with his mother when E.T. hung up the phone. D.G. was angered by this and cursed at E.T., who responded by telling D.G. to return to his room. Although D.G. responded that he would not return to his room, he started walking toward it. E.T. grabbed D.G. from behind, lifted him off the ground, and slammed him to the floor on the left side of his face. JDO Steven Hess and JDO Scott Murphy became involved after the takedown. JDO Hess held D.G.'s feet and E.T. placed his knee in D.G.'s back. D.G. was crying and kept saying, "I give up." JDO Murphy handcuffed D.G., and D.G. claimed that while being handcuffed, E.T. kicked him in the face and split the side of his mouth open, causing it to bleed.

The officers picked D.G. up and walked him to isolation, where he asked to see a supervisor because his handcuffs were too tight. A nurse came within a few minutes of the incident and saw D.G. crying. D.G. repeatedly asked the nurse, "Why did he have to hurt me like that?" The nurse observed groove marks on D.G.'s wrists and his hands were swollen and cold from the handcuffs being too tight. She also observed an injury to D.G.'s left eye and small cuts inside of his lower lip and cheek, both of which were bleeding. She applied ice to D.G.'s hands and left eye and gave him medication for pain.

D.G. filed a grievance against E.T. On December 8, 2003, a social worker at the Youth Center contacted DYFS and reported D.G.'s grievance against E.T. The IAIU investigated and substantiated E.T.'s physical abuse of D.G., resulting in his name being placed in the Central Registry. The IAIU also determined that E.T.'s use of physical intervention was unjustified, his method of intervention was inappropriate, and his actions placed D.G. at unnecessary and undue risk of serious harm. The IAIU recommended disciplinary action against E.T.

On March 17, 2004, the IAIU notified E.T. of its determination. On May 18, 2004, E.T. filed an appeal. The matter was transferred to the Office of Administrative Law (OAL) for determination as a contested case pursuant to N.J.S.A. 52:14F-1 to -13.

On May 4, 2004, Camden County (County) issued a Preliminary Notice of Disciplinary Action seeking E.T.'s removal based upon the following charges:

1. N.J.A.C. 4A:4-2.3(a)(1) - Incompetency, inefficiency and failure to perform duties;

2. N.J.A.C. 4A:2-2.3(a)(6) - Conduct Unbecoming a Public Employee;

3. N.J.A.C. 4A:2-2.3(a)(7) - Neglect of Duty;

4. N.J.A.C. 4A:2-2.3(a)(11) - Other Sufficient Cause;

5. Departmental Policy.

A departmental hearing was held on June 15, 2004. E.T. was represented by counsel at the hearing. The Hearing Officer upheld the charges. The County issued a Final Notice of Disciplinary Action on June 21, 2004, removing E.T. from his employment effective June 15, 2004.

On August 16, 2004, E.T. appealed to the Board. The Board transferred the matter to the OAL for a hearing as a contested case. On December 10, 2004, an ALJ consolidated the appeals.

At the hearing before the ALJ, D.G. testified about the incident. E.T. appeared pro se and testified on his own behalf. The ALJ found D.G.'s testimony "believable in every material aspect," and "compelling in its candor and sincerity" because he "presented his version of the events in a very straightforward manner, without embellishment." The ALJ also found the testimony of a nurse and eyewitnesses corroborated D.G.'s testimony. Conversely, the ALJ found E.T.'s testimony "disingenuous and contrived." He did not believe the testimony of JDO Hess and JDO Murphy and found the testimony of one of E.T.'s witnesses to be "difficult to credit" and "unreliable."

The ALJ issued his Initial Decision on December 6, 2005. He found "E.T.'s physical intervention with . . . D.G. on December 6, 2003 was unjustified," and that E.T. "utilized an inappropriate method of intervention when he abandoned verbal efforts to gain D.G.'s compliance and intentionally escalated the encounter into a physical confrontation"; furthermore, his takedown technique "was an excessive use of force and involved dangerous body contact" and "unnecessarily placed resident D.G. at undue risk of serious physical harm."

The ALJ affirmed the OCS's finding of substantiated child abuse and placement of E.T.'s name in the Central Registry, concluding:

It is clear from the credible evidence in this matter that E.T. engaged in an inappropriate physical intervention with resident D.G. on December 26, 2003. By so doing, E.T. placed D.G. at risk of serious harm. First, instead of providing D.G. with appropriate and sufficient verbal direction under circumstances which did not indicate that the child's behavior was harmful to himself, others or property, E.T. recklessly provoked a physical confrontation. E.T. then imposed a physical restraint on D.G. that was excessive under the circumstances, and thereby unreasonably inflicted risk of harm. N.J.S.A. 9:6:9-8.21c(4) and (6).

In fact, E.T.'s improper supervision and reckless provocation caused D.G. actual physical injury in the form of swelling on the side of his face near his left eye and cuts in his mouth. Thus, I CONCLUDE that D.G.'s physical condition was temporarily impaired as the result of E.T.'s failure to exercise a minimum degree of care and his use of an excessive physical restraint. This means that D.G. was an "abused or neglected child," as defined by N.J.S.A. 9:6-8.21c and N.J.A.C. 10:133-1.3. Consequently, I further CONCLUDE that the Department has proven its allegation of substantiated physical child abuse by a preponderance of the credible evidence, and E.T.'s name and the substantiated abuse finding should remain in the DYFS Central Registry.

The ALJ also affirmed the County's removal of E.T. from his employment at the Youth House, concluding:

As set forth in the findings and conclusions above, E.T. engaged in an unnecessary and inappropriate physical intervention with resident D.G. on December 6, 2003. By so doing, E.T. placed D.G. at risk of serious harm, and in fact caused D.G. actual physical injury to his face. Such unjustified conduct constitutes physical child abuse, and is certainly conduct unbecoming a public employee. Accordingly, I CONCLUDE that the appointing authority has sustained its burden of proving this disciplinary charge against appellant. I further CONCLUDE that conduct unbecoming a public employee is the most appropriate charge brought against E.T. for the specified misconduct and the other charges relying on the same specification should be merged with it.

It is the Camden County Youth Center's obligation to safeguard its residents from harm at the hands of its employees. E.T.'s excessive physical restraint of D.G. was a disproportionate reaction to D.G.'s inappropriate verbal conduct, demonstrating his unsuitability for the juvenile detention officer position. The preventable and unjustifiable causing of actual physical injury to resident D.G. establishes that E.T.'s removal from public service is warranted. I so CONCLUDE.

E.T. filed exceptions to the ALJ's Initial Decision. On June 19, 2006, the OCS issued a Final Decision affirming the ALJ. On August 11, 2006, the Board issued a Final Administrative Action affirming the County's removal of E.T.

II

E.T. first raises the issue of the ALJ's improper exclusion of evidence. E.T. sought to enter into evidence D.G.'s behavior log for the entire time D.G. was at the Youth House. The ALJ heard the parties' arguments about the relevance of this evidence off-the-record. On the record, the ALJ ruled this evidence "would be excluded if the purpose of it was to try to show that the behaviors on previous days therefore proved the behaviors on the day in question."

E.T. claims he tried to place an objection on the record that he was not offering the behavior log to prove behavior, but rather to attack D.G.'s credibility and establish his belief that D.G. was a threat, thus justifying his actions. E.T. also claims the ALJ prevented him from doing so and "glared" at him, causing him to assume he was doing something wrong and reply, "I'll be quiet." E.T. contends the ALJ acted unreasonably in treating a pro se litigant in this manner. He also contends the ALJ abused his discretion in precluding him from entering D.G.'s entire behavior log into evidence.

In administrative proceedings, evidence rulings "shall be made to promote fundamental principles of fairness and justice and to aid in the ascertainment of truth." N.J.A.C. 1:1-15.1(b). Unless specifically provided otherwise in the Administrative Code, neither the common law of evidence, statutory evidence law, or the New Jersey Rules of Evidence are binding in administrative proceedings. N.J.S.A. 52:14B-10(a); N.J.A.C. 1:1-15.1(c). However, "the fundamentals of fair and adequate procedure constituting due process must be observed, and cross examination and rebuttal have been held to be basic elements of an administrative hearing essential to due process." In re Application of Howard Sav. Bank, 143 N.J. Super. 1, 6-7 (App. Div. 1976). All relevant evidence is admissible, except as otherwise provided in the Code, and an ALJ has discretion to exclude evidence if "its probative value is substantially outweighed by the risk its admission will either (1) necessitate undue consumption of time; or (2) create substantial danger of undue prejudice or confusion." N.J.S.A. 52:14B-10(a); N.J.A.C. 1:1-15.1(c).

Administrative agencies have a great deal of discretion in many areas and exercises of discretion "are entitled to respectful review under an abuse of discretion standard." Serenity Contracting Group, Inc. v. Borough of Fort Lee, 306 N.J. Super. 151, 157 (App. Div. 1997), certif. denied, 153 N.J. 214 (1998). This abuse of discretion standard has been articulated as follows:

Although administrative agencies are entitled to discretion in making decisions, that discretion is not unbounded and must be exercised in a manner that will facilitate judicial review. Administrative agencies must "articulate the standards and principles that govern their discretionary decisions in as much detail as possible." Van Holten Group v. Elizabethtown Water Co., 121 N.J. 48, 67 (1990). When the absence of particular findings hinders or detracts from effective appellate review, the court may remand the matter to the agency for a clearer statement of findings and later reconsideration. In re Application of Howard Sav. Inst., 32 N.J. 29, 53 (1960).

[In re Vey, 124 N.J. 534, 543-44 (1991).]

Applying this standard, we reject E.T.'s contention the ALJ abused his discretion in excluding the behavior log. First, to support his claim that the ALJ prevented him from placing an objection on the record, E.T. relies upon the colloquy at pages 162 to 163 of the May 27, 2005 transcript. After excluding the behavior log, the ALJ asked E.T., "Mr. T., you are now offering the incident reports for the earlier incidents on December 6, 2003. Is that correct?" The following colloquy then took place:

MR. T.: Yes. I was offering them because they also give the time of the incident which would show whether it was morning or evening and - - and the whole packet goes my primary thing also is just to show that D.G. and his other witness - witnesses were not telling the truth. That was really the - - the main thing, not just - - for his behavior on the specific incident.

THE COURT: All right.

MR. T.: So these are precipitating factors don't concerning the threat, you know, the threat the officers felt that day. I'll be quiet.

THE COURT: All right.

Nowhere in this colloquy did E.T. attempt to place an objection on the record about the exclusion of the behavior log. Rather, he discussed offering the incident reports for the two earlier incidents on December 6, 2003, to impeach D.G.'s and his witnesses' credibility and show the threat he felt from D.G. on that day. Because the ALJ admitted those reports into evidence, there was no abuse of discretion.

Even if E.T. was discussing the behavior log in this colloquy, the ALJ's ruling was correct. First, the ALJ's ruling conforms to the provisions of N.J.R.E. 404(a), which generally precludes evidence of a person's character or character traits, and N.J.R.E. 404(b), which generally precludes evidence of a person's other acts to prove "the disposition of a person in order to show that such person acted in conformity therewith."

Second, the ALJ did not preclude E.T. from introducing any evidence of D.G.'s past behavior and, in fact, admitted the reports of the two earlier incidents on December 6, 2003, which showed D.G.'s behavior that day. The ALJ also did not preclude E.T. from questioning witnesses, including D.G., about D.G.'s past behavior, nor did he preclude E.T. from impeaching the credibility of any witness.

Finally, the record establishes that the ALJ clearly considered evidence of D.G.'s behavior on December 6, 2003, the threat E.T. may have perceived from that behavior, and whether the evidence justified E.T.'s actions. Based upon his review of all of the evidence, which consisted of the testimony of eleven witnesses and sixty-eight documents, the ALJ concluded E.T.'s use of force was unjustified.

III

E.T. next contends he was prejudiced by the County's failure to provide page two of the Youth Center's policy on the use of handcuffs and mechanical restraints (Handcuffing Policy) regarding actions a JDO can take in a crisis situation. The ALJ received a complete copy of the Handcuffing Policy, placed it into evidence prior to issuing his Initial Decision, and considered the missing page before rendering his decision. E.T. argues, nevertheless, he was precluded "from examining corroborating witnesses about the policy to which he was terminated for violating." This argument is without merit.

The Handcuffing Policy did not apply here because E.T. did not handcuff D.G. and, thus, was not entitled to any justification the policy provides for using force in a crisis situation. Furthermore, at the hearing, E.T. did not focus on justifying his actions under this policy, nor does he raise such justification on this appeal. Even if the Handcuffing Policy applied, E.T. received a complete copy in September 2001. More importantly, E.T. never questioned any witness about any of the Youth Center's policies, including the Handcuffing Policy.

IV

In challenging an agency's determination, an appellant carries a substantial burden of persuasion, and the agency's determination carries a presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Servs. Comm'n, 93 N.J. 384, 390 (1983). Our role in reviewing an administrative agency's decision is a limited one. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We may not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). The scope of our review of an administrative decision is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

Applying these principles, the OCS's and Board's determinations are supported by substantial credible evidence in the record as a whole and are not arbitrary, capricious, or unreasonable.

Affirmed.

We reject E.T.'s suggestion he should have received more lenient treatment because he appeared pro se. Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997); Rosenblum v. Borough of Closter, 285 N.J. Super. 230, 241 (App. Div. 1995), certif. denied, 146 N.J. 70 (1996); Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App Div. 1989).

(continued)

(continued)

16

A-0496-06T2

RECORD IMPOUNDED

 

December 7, 2007