NEW JERSEY DEPARTMENT OF HUMAN SERVICES v. V.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3810-04T53810-04T5

NEW JERSEY DEPARTMENT OF HUMAN

SERVICES,

Plaintiff-Respondent,

v.

V.R.,

Defendant-Appellant.

__________________________________

 

Submitted August 15, 2006 - Decided August 24, 2006

Before Judges Parrillo and Sabatino.

On appeal from a Decision of James M. Davy,

Commissioner, Department of Human Services.

Eugene G. Liss, attorney for appellant, V.R.

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent, New Jersey Division of

Youth and Family Services (Michael Haas, Assistant

Attorney General, of counsel; Scott J. Kieserman,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant, V.R., appeals from a final agency determination that she committed an act of child abuse or neglect within the meaning of N.J.S.A. 9:6-8.21. We affirm.

On November 1, 2002, the Division of Youth and Family Services (DYFS) received an allegation that V.R., a second grade school teacher in Plainfield, had pushed a seven-year-old student, A.R., out of the classroom and slammed the door on his fingers, causing severe injury. It was also reported that V.R. claimed that A.R. had slammed his own finger between the desks.

DYFS' Institutional Abuse Investigation Unit (IAIU) investigated the allegation. IAIU determined that A.R. and other students had been bumping their desks together and A.R. did not respond to V.R.'s verbal request to stop. V.R. asked A.R. to go to the office, but A.R. refused. V.R. then grabbed A.R. by the wrist and pulled him to the door, but A.R. held onto the door frame so that when V.R. slammed the door, it shut on A.R.'s fingers. Upon seeing that A.R.'s hand was bleeding, V.R. sent him to the nurse's office unescorted, although school policy dictated that a teacher call for assistance when a student is out of control and not leave the student unattended in the hallway. In any event, A.R. had sustained a one-quarter inch laceration to his left middle finger, requiring six stitches, and bruising to his three middle fingers. IAIU substantiated abuse or neglect by V.R. against A.R.

After being notified of the results of the IAIU investigation, V.R. appealed DYFS' finding of substantiated child abuse or neglect and the matter was transmitted to the Office of Administration Law (OAL) for a hearing. Among other evidence adduced at trial was the testimony of a student, D.H., who said that A.R. was trying to get back into the classroom, that A.R. yelled something like "don't leave me," and that V.R. slammed the door "really hard" on A.R.'s fingers. Another witness, K.F., a teacher's aide, testified that, while walking down the hall, she observed a struggle at the classroom doorway, with one person on either side. "The door was opening and closing" with "pretty strong" force, and A.R. "was on the outside trying to pull the door open." Indeed, V.R. herself, in a certification, indicated that she was aware that A.R.'s fingers were on the door jamb immediately prior to the door being slammed shut on his hand. The certification notes that as she took A.R. into the hallway he "grabbed the door jamb with his left hand" and "the door closed on its own initiative catching the student's fingers as he was holding onto the door jamb." Furthermore, V.R. stated to the IAIU investigator during her November 14, 2002 interview that as she led A.R. out the door, he was hanging onto the door frame screaming, and he pulled away from her.

V.R. testified on her own behalf. According to V.R., boys in the class had been moving their desks back and forth into each other and when she heard A.R. scream, she told A.R. to go out into the hallway with her, but that A.R. refused. V.R. then took him by the wrist and walked him to the door, and still holding A.R. by his wrist, opened the door with her other hand. As she walked out the door, she heard A.R. scream again and he bolted from her and ran back into the classroom. It was then that she saw the blood and told him to return to the nurse. She denied ever slamming the door.

At the conclusion of the evidence, the administrative law judge (ALJ), in her initial decision, reversed DYFS' finding of substantiated child abuse or neglect and directed the agency's record be modified to reflect a finding of "not substantiated with concerns." The ALJ found insufficient competent and credible evidence that V.R. was either cognizant of A.R.'s efforts to physically gain re-entry into the classroom or observed A.R. holding onto the door shortly before she closed it. Consequently, the ALJ concluded V.R.'s actions fell short of child abuse or neglect within the meaning of N.J.S.A. 9:6-8.21c(4)(d).

DYFS took exception to the ALJ's initial decision and a response was filed by V.R. By final decision of February 7, 2005, the Commissioner of the Department of Human Services rejected and reversed the ALJ's initial decision, reinstated DYFS' original finding, and determined that V.R.'s actions on November 1, 2002, constituted child abuse or neglect pursuant to N.J.S.A. 9:6-8.21. The Commissioner reasoned:

It is undisputed that the wooden classroom door was "hinged so as to swing to the right and out into the hall when exiting the classroom." Through the process of the evidentiary hearing [the] ALJ determined that V.R. became angry, and A.[R.] resisted V.R.'s efforts to remove him from the classroom. This is supported by the testimony of D.[H.] and V.R., who both testified that just prior to her leading A.[R.] to the door, he threw himself on the floor, and that he screamed that he did not want to leave the classroom. V.R. described A.[R.] as being out of control. V.R.'s description of this is rather precise. She testified that he was not out of her control; rather, A.[R.] was out of his own control. Further the [ALJ] found, "[i]n an effort to reenter the classroom, A.[R.] had grabbed the door jamb/frame with his left hand before [V.R.]" forcibly slammed or pulled the door shut, catching A.[R.]'s hand in the door. "V.R. took no measures to ensure that A.[R.] was not in or about the door before she closed it." In light of the ALJ's factual findings, it is clear that V.R.'s actions amount to gross negligence. Contrary to the ALJ's conclusions of law, V.R.'s decision to slam the door, the force with which she chose to do so, A.[R.]'s established resistance, V.R.'s failure to assure the child was out of the way, and the severity of the resulting injuries, I must conclude that her conduct amounted to abuse and neglect as intended by N.J.S.A. 9:6-8.21 et seq. and contemplated by the Court in G.S.

This appeal raises an issue of statutory interpretation, i.e., the meaning of abuse and neglect under N.J.S.A. 9:6-8.21c(4)(b). Although we are not bound by an agency's interpretation of "a strictly legal issue", Mayflower Securities Co., Inc. v. Bureau of Sec. in Div. of Consumer Affairs of Dep't of Law and Pub. Safety, 64 N.J. 85, 93 (1973), when that interpretation is inaccurate or contrary to legislative objectives, New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978), nevertheless we give considerable weight to an agency's construction of a statute the agency is charged with enforcing. G.S. v. Dep't of Human Servs., Div. of Youth and Family Servs., 157 N.J. 161, 170 (1999). Indeed, there is a strong presumption of reasonableness given to an agency's exercise of statutorily delegated responsibility and we ordinarily defer to an agency's expertise and superior knowledge of a particular field. Newark v. Natural Res. Council, Dept. of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

DYFS is the state agency responsible for the "care, custody, guardianship . . . and protection of children

. . . ." N.J.S.A. 30:4C-2(a). Its investigative responsibilities extend to any home or institutional setting, N.J.S.A. 9:6-8.11 and 8.21, and the agency is mandated to take immediate action to ensure a child's safety upon receipt of an allegation of abuse or neglect. N.J.S.A. 9:6-8.11. Its investigation culminates in a finding that the allegation of child abuse or neglect is either "substantiated", "not substantiated", or "unfounded." N.J.A.C. 10:129-1.3. If a charge is substantiated, a report is forwarded to the Central Registry. N.J.A.C. 129-2.1; In re an Allegation of Physical Abuse Concerning L.R., 321 N.J. Super. 444, 448, n.3 (App. Div. 1999). In this case, we are satisfied, substantially for the reasons stated in the Commissioner's written decision of February 7, 2005, that DYFS' finding of substantiated child abuse or neglect is supported by "'sufficient credible evidence present in the record,'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)) comports with applicable legal principles, and is sustainable under N.J.S.A. 9:6-8.21c(4). We add only the following comments.

N.J.S.A. 9:6-8.21 defines an "abused or neglected child" as:

(4) or a child whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court

. . . .

[N.J.S.A. 9:6-8.21c(4) (emphasis added.)]

No one disputes that V.R. is a "guardian" and A.R. a "child" as those terms are defined in Title 9. See N.J.S.A. 9:6-8.21a, -8.21c. As to what constitutes a "minimum degree of care", G.S. instructs that "a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. The Title 9 inquiry necessarily focuses "on the circumstances leading up to the injury and on the harm to the child, and not on the guardian's intent." Id. at 176. Thus, "under Title 9, whether the guardian intended to harm the child is irrelevant." Ibid. In other words, an intentional act that has unintended consequences may come within Title 9's proscription. Ibid. As the Court in G.S. explained:

Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation. We recognize that a variety of factual scenarios can give rise to the finding that a guardian has failed to exercise a minimum degree of care, and do not attempt to describe them. We simply remind DYFS and the courts that the inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger. When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law. Ultimately, we leave it to DYFS and the courts to determine, on a case-by-case basis, whether a caregiver has failed to exercise a minimum degree of care in protecting a child.

[Id. at 181-82.]

In this case, we conclude that there was sufficient evidence to support a finding of abuse or neglect. V.R. knew she was dealing with an uncontrollable child who was resisting her efforts to remove him from the classroom. When she finally succeeded in dragging him outside the doorway, A.R.'s resistance continued, this time trying to make reentry into the classroom. Indeed, a teacher's aide witnessed a "door struggle" and another student confirmed A.R. was trying to get back, yelling that he did not want to be left in the hallway. Yet, despite A.R.'s close proximity to the door and his persistent efforts to

re-enter, V.R. nevertheless deliberately slammed the door closed, obviously aware of the dangers inherent in the use of such excessive force, thereby creating not only the risk of serious injury, but also actual harm to A.R., whose finger was crushed in the door. Whether impulsive or out of exasperation, or the result of indifference to the location of A.R.'s hand, V.R.'s conduct clearly rises to the level of recklessness necessary to sustain a finding of child abuse or neglect under N.J.S.A. 9:6-8.21c(4)(b). Even though she, no doubt, did not intend harm to befall A.R., V.R. utterly disregarded the substantial probability that harm would result from her actions. We, therefore, conclude that the conduct of V.R. supports a finding of abuse or neglect under N.J.S.A. 9:6-8.21c(4)(b).

Affirmed.

 

This matter was consolidated in the OAL with tenure charges of corporal punishment and unbecoming conduct against V.R. arising from the same incident brought by the local school district and transmitted to the OAL by the Commissioner of the Department of Education. The final agency decision in that matter is the subject of a separate appeal.

(continued)

(continued)

10

A-3810-04T5

RECORD IMPOUNDED

August 24, 2006