NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, v. W.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5934-04T25934-04T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Petitioner-Respondent,

v.

W.C.,

Respondent-Appellant.

_______________________________________

 

Submitted June 5, 2006 - Decided July 13, 2006

Before Judges C. S. Fisher, Yannotti and C. L. Miniman.

On appeal from a Final Decision of the Commissioner of the New Jersey Department of Human Services.

Benbrook & Benbrook attorneys for appellant (Kevin P. Benbrook, on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lori J. DeCarlo, Deputy Attorney General, on the brief).

PER CURIAM

W.C. appeals from a final determination of the Commissioner of the Department of Human Services (Commissioner) dated April 28, 2005, in which the Commissioner found that W.C. sexually abused one of her students. We affirm in part and reverse in part.

I.

This matter commenced on April 16, 2003, when the Division of Youth and Family Services (Division) issued a letter to W.C. advising that the Division had received a referral alleging that W.C. sexually abused J.P. The Division advised W.C. that it was required by N.J.S.A. 9:6-8.11 to investigate all such referrals and, in this matter, sexual abuse had been substantiated. W.C. filed an appeal from this determination and requested a hearing at the Office of Administrative Law before an Administrative Law Judge (ALJ).

The evidence presented at the hearing revealed that, at the time of the alleged incidents, W.C. was 39 years old. She had been an elementary school teacher since 1987. W.C. was married and had two young children. During the 1999-2000 school year, W.C. was assigned to teach a sixth-grade special education class with six students, one of which was J.P., then 12 years old. According to W.C.'s teaching schedule, she had J.P. in a resource room setting for two morning periods of language arts and one period of math. She also provided in-class support to J.P. in a regular science class. J.P. was with W.C. five days each week during the school year, for the entire morning.

According to the witnesses who described him, J.P. was physically attractive, mature and big for his age. Because he had a severe reading disability and certain attention deficits, J.P. had been placed in the special education program. The school's psychologist described J.P. as "bright" and "a very nice kid," who became rebellious and defiant towards the end of the 1999-2000 school year. The superintendent of the schools described J.P. as "flamboyant," "outgoing" and "full of energy." He did not consider J.P. to be a disciplinary problem; however, due to his hyperactivity, J.P. had been involved in certain minor disciplinary incidents.

The superintendent testified that sometime in the spring of 2000, there was a concern that W.C. was giving an "inordinate amount of attention" to J.P. At times, W.C. had been found alone with J.P. in her classroom. The superintendent also had been informed that W.C. had driven J.P. to her home to see a puppy that she had purchased; however, W.C. had not obtained permission from the school to do so. The superintendent said that he counseled W.C. and advised her that he did not think it was a "good idea" for her to be alone with a student "in a setting like that."

The superintendent additionally testified that he thought that "perhaps an unhealthy relationship was developing" between W.C. and J.P. and "she was paying too much attention to him and spending too much time with him." The superintendent stated that he was not personally aware of any alleged sexual abuse until he received a complaint from J.P.'s mother M.P., who told the superintendent that W.C. had inappropriate sexual contact with her son.

M.P. testified concerning an incident that occurred in the summer of 2000 after J.P. graduated from the sixth grade. On August 14, 2000, M.P. returned home from work sometime between 3:30 and 4:00 p.m., which was earlier than usual. When she arrived at home, M.P. observed W.C.'s car in the driveway. M.P. entered the house through the front door. She went through the house looking for J.P. and called out his name. M.P. looked out the window and saw J.P. and W.C. standing on the front lawn near the front walkway. M.P. noticed that J.P. had an erection and his lips were red. She asked W.C. and J.P. what was going on and J.P. said that they had been in the garage. M.P. asked J.P. why his lips were red and he said that he had just had a cherry ice pop. J.P. went inside the house.

After M.P. and W.C. briefly made some "small talk," W.C. followed J.P. into the house. According to M.P., W.C. was trying to make eye contact with J.P. Although M.P. repeatedly said that she had a doctor's appointment, W.C. would not leave the house. Finally, M.P. asked W.C. to leave and W.C. departed. M.P. was asked to describe W.C.'s demeanor when M.P. found her alone with J.P. She said that W.C. looked "ruffled" and "very uncomfortable."

M.P. had a sense that something was wrong and she had "walked in on something." M.P. again asked her son what was going on and he replied that he had been in the garage with W.C. According to M.P., J.P. was very nervous and very scared. M.P. tried to get J.P. to "open up" but he kept saying that nothing had happened. M.P. asked J.P. why he had an erection and, according to M.P., he got more and more nervous.

M.P. had a "sick feeling" and had to get the truth from J.P. so she told J.P. that she had seen him in the garage. J.P. then began to elaborate. He said that W.C. "was showing herself to him and asking him to touch her." J.P. stated that W.C. was naked and, when M.P. suddenly pulled into the driveway, she got down on her hands and knees "looking for a place to hide."

J.P. also told his mother about an incident that occurred in the supply closet in school and an incident in the basement of his home. J.P. did not elaborate on either of those incidents at the time but later spoke about them in detail when interviewed by the investigators in the prosecutor's office.

M.P. testified that the incident of August 14, 2000 was not the first time that W.C. was at her home when J.P. was alone. A few weeks before the August 14, 2000 incident, M.P. found W.C. standing outside of the home with the family dog. W.C. told M.P. that she was there to check on J.P. M.P. went into the house and she found J.P. "just coming out of the shower." J.P. said that he did not know that W.C. was there. He told his mother that he let the dog out and went to take a shower.

M.P. said that W.C. was at the house when M.P. was not at home about five times. She said that J.P. at times went to W.C.'s home. On one occasion, W.C. took J.P. and another student bicycle riding. Another time, W.C. took J.P. and some other students skateboarding, and on another occasion, J.P. went with W.C. to pick up a dog. M.P. said that none of J.P.'s other teachers ever came to the house when she was not home, nor did J.P. visit the homes of his other teachers.

M.P. was asked whether J.P.'s teachers ever gave him gifts. She replied that J.P. might receive a little trinket like a pen, pencil or stamp for good behavior or good work. M.P. said that W.C. initially gave J.P. "normal" gifts but the gifts "started getting larger and more expensive." W.C. gave J.P. some CDs. She gave him money at a book fair. She also gave him a "hack sacky" ball. M.P. found W.C.'s gift-giving to be "very unusual" and asked W.C. why she was buying such expensive gifts for her son. W.C. told M.P. that she bought gifts for everyone.

M.P. additionally testified that she invited W.C. and two other teachers to J.P.'s sixth grade graduation party. W.C. arrived alone. M.P. said that W.C. did not spend time with the adults but stayed with J.P. and the other the children down by the lake near M.P.'s home. The other two teachers "stayed a respectable amount of time" but W.C. stayed late with the "kids down by the lake."

M.P. also said that, during the graduation party, she was informed that two of her neighbors were swimming naked in the lake near W.C. and the children. M.P. sent two children to tell the other children to return to the house immediately. M.P. said that, on another occasion, during a town festival, W.C. and her children were invited to M.P.'s house to watch the fireworks. M.P. stated that, at this event, J.P. was rude to W.C. and he wanted to know why she had been invited. It appeared to M.P. that W.C. was trying to get J.P.'s attention but he would not acknowledge her.

M.P. also said that during the summer of 2000, W.C. offered to tutor J.P. for free. M.P. told W.C. that she did not have transportation and W.C. said that she could either tutor J.P. at his home or she could pick him up and take him to her house. M.P. stated that W.C. made the offer on the day when she found W.C. outside the house with the family dog. M.P. told W.C. that she would think about her offer and speak to her when W.C. returned from her vacation.

Donald Peter (Peter), a detective in the County Sex Crimes and Major Crimes Unit, testified at the hearing. Peter was one of two detectives assigned to investigate this matter after the superintendent of schools reported the matter to the Division. Peter contacted J.P. and W.P. on August 18, 2000.

J.P. told the detectives that W.C. had engaged in sexually inappropriate actions on several occasions. He said that during the 1999-2000 school year, W.C. was in a classroom supply closet after the other children left the room to switch classes. W.C. directed J.P. towards the closet. J.P. said that W.C. lifted her shirt and exposed her breasts. Another teacher entered the room. The teacher did not see W.C. and she told J.P. to leave.

J.P. also told the investigators about the incident that occurred at his home on August 14, 2000. J.P. said that W.C. came to the house and he was home alone. She entered the house and they talked in the kitchen about W.C.'s vacation. J.P. and W.C. went into the garage. According to J.P., at some point, W.C. laid down on the floor in the garage, exposed her naked breasts and asked J.P. to touch her breasts. J.P. said that, while this was happening, he heard his mother calling out to him. J.P. said that W.C. "freaked out." J.P. and W.C. left the garage and went into the house where J.P. watched television while W.C. spoke with his mother. J.P. said that after W.C. left, his mother confronted him and told him that she knew he had an erection.

J.P. also described an incident where W.C. touched him on the penis over his clothing. He described it as "like a stroking with her fingertips." This incident occurred in the basement of J.P.'s house. J.P. also spoke about the gifts that W.C. had given him, which included a CD player.

Peter interviewed W.C. concerning these allegations. She denied that anything of a sexual nature had occurred with J.P. She admitted giving J.P. gifts and said she had stepped over the line in doing so. W.C. also stated that she went to J.P.'s house because she wanted to help him prepare for his move to the seventh grade. Peter asked W.C. to identify the books or reading material that she had given to J.P. during the summer of 2000 but she could not do so.

The Division also presented evidence from the school principal, who stated that she had only seen J.P. and W.C. alone in school two times. On one occasion, the principal ran into them near the storage closet by the door to the classroom and she observed there was a "startled look on both of their faces." The principal thought that she had caught J.P. and W.C. doing something wrong. It was, she said, "just the way kids respond if you happen to catch them doing something." In addition, E.B., one of J.P.'s relatives, testified that W.C. spent an inordinate amount of time "hanging out with the kids, not the adults" at J.P.'s graduation party. E.B. also said that, after the fireworks display at the town festival, W.C. stayed late at M.P.'s house, "until everybody was just falling asleep . . . ."

W.C. testified in her own behalf. She denied that she sexually abused J.P. W.C. said that J.P. was added to her class for the 1999-2000 school year. J.P. had attention deficit hyperactive disorder and dysgraphia, which means that he could not write in cursive. J.P. also was dyslexic. W.C. asserted that if J.P. did not take his medication, she knew it was not going to be a good day.

W.C. stated that she kept a CD player in a filing cabinet and she would listen to music during her preparation time. W.C. said that J.P. broke into the filing cabinet and took the CD player. W.C. let J.P. keep the CD player on a temporary basis. When she asked J.P. to return the player, he told her "I still need it." J.P. did not return the CD player at the end of the school year. W.C. also said that J.P. also took her checkbook and told her that if she wanted it back, she had to come to his house and get it. W.C. did not report either incident to the school administrators or to J.P.'s mother.

W.C. stated that she went to J.P.'s house to get her checkbook but no one was at home. She then went to the home of a former student, thinking that J.P. might be there. J.P. was there and, according to W.C., he admitted taking her checkbook and returned it. W.C. said that, at times, she would give her students gifts, which she described as "little things."

W.C. additionally testified about J.P.'s graduation party. She said that she arrived at 4:00 p.m. and stayed until 8:00 p.m. She went swimming in the lake with the children. She denied that she spent all of her time at the party with the children. W.C. stated that two women were "skinny dipping" in the lake nearby. W.C. said that the younger children left the lake but the older ones "definitely lingered." J.P. was one of the "big kids that stayed behind."

W.C. also testified about visiting J.P.'s home at the time of the town's festival. W.C. visited J.P.'s home with her two children to watch the fireworks. She said that she did not go to the event with the purpose of seeing J.P. or his family. She denied that J.P. was rude to her. W.C. stated that she left soon after the fireworks.

In addition, W.C. testified about the events of August 14, 2000. She said that her husband was home from work that day and she decided to go up to the school to see her schedule for the coming academic year. Afterwards, W.C. went home and her daughter told her that J.P. had called. Later that afternoon, J.P. called again. J.P. said that he wanted her to come over and see his dirt bike. W.C. told him that she wanted her CD player back. W.C. went on some errands and she stopped at J.P.'s house. He was outside. W.C. asked him for her CD player and he asked her to go into the garage to show her his motorcycle.

W.C. said that the garage was disgusting. There were oil spots "all over the place" and the garage was filled with "stuff." J.P. showed W.C. the bikes and she asked him for her CD player. W.C. said that they were in the garage less than five minutes when they heard someone calling J.P. W.C. again asked for the CD player. J.P. went into the house but he did not bring the CD player out. W.C. spoke to J.P.'s mother but did not tell her the reason she was there. W.C was with M.P. for about two minutes and then she left. W.C. said that there was no physical contact with J.P. during her visit to his home on August 14.

W.C. also denied that there was any inappropriate physical contact with J.P. during the school year. She said that she had never exposed a private part of her body to J.P. W.C. stated that she loved her job at the school and she had the "perfect life." W.C. was devastated when she was forced to resign her position because of the allegations of sexual abuse.

W.C. also presented expert testimony from William Campagna, Ph.D. (Campagna), who is a clinical and forensic psychologist. Campagna reviewed J.P.'s school records and the videotape of his interview by the detectives. Campagna stated that there were certain "external and internal factors" which bear upon an evaluation of allegations of sexual abuse. Campagna noted that, about eight or nine weeks prior to the end of the 1999-2000 school year, J.P. walked in the school rest room and saw a young student being sexually abused by other students. He said that this incident affected J.P. significantly. J.P. began to taunt the young boy and wrote the word "gay" on the ceiling of the classroom. Campagna also said that a "fantasy factor" sometimes occurs when a boy alleges sexual contact by an older woman. Campagna additionally noted that J.P. had taken certain of W.C.'s personal items.

Campagna placed great weight on the fact that J.P.'s allegations of sexual contact had been elicited by his mother, who was in many ways, "the prime authority figure." Campagna said that M.P. had lied to J.P. to get him to tell her about the incident in the garage. She also defined for him the meaning of the word "fondling," at which point J.P. agreed that this was what had occurred. Campagna conceded, however, that the detectives from the prosecutor's office had done a "pretty good job of interviewing the boy."

Campagna further testified that J.P.'s allegations were in some sense "fantastical." He said that it would "strain credulity to believe that a teacher would expose her breasts in an open classroom with the door open . . . ." Campagna also noted that J.P. is "a very impulsive young man," and because "he's impulsive, he has poor judgment." J.P. therefore could be influenced by others and such individuals "tend to make fantastical allegations."

The ALJ issued an Initial Decision dated February 1, 2005, in which he concluded that W.C. sexually abused J.P. on August 14, 2000 but found insufficient evidence to establish that W.C. engaged in other incidents of sexual abuse at home or at school. W.C. and the Division filed exceptions to the ALJ's decision. On April 28, 2005, the Commissioner issued his final decision. He adopted the ALJ's findings and credibility determinations. However, he modified the ALJ's determination that there was insufficient evidence to corroborate J.P.'s allegations that W.C. committed additional acts of sexual abuse at home and at school. The Commissioner determined that there was sufficient corroborating evidence to establish that W.C. had inappropriate sexual contact with J.P. during the 1999-2000 school year. This appeal followed.

II.

W.C. argues that the Commissioner's determination is erroneous because that decision is based upon hearsay which was not corroborated by a residuum of competent and legal evidence.

The scope of our review in considering an appeal from a final decision of an administrative agency is limited. We can intervene only "in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. v. Tpk. Auth., 137 N.J. 8, 27 (1994). We must determine whether the agency's action is arbitrary and unreasonable and, in doing so, consider whether the agency's action violates express or implied legislative policies and whether there is substantial evidence in the record to support the agency's findings. Ibid.

Moreover, the findings of fact by an administrative agency are binding on appeal when they are supported by sufficient credible and competent evidence. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (citing Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981)). In reviewing those findings, we must give "due regard" to the judge who had the opportunity to hear the witnesses and assess their credibility. Ibid. (quoting Close v. Kodulak Bros., 44 N.J. 589, 599 (1965)).

Under N.J.S.A. 9:6-8.21(c)(3), a child who is younger than 18 years of age is abused if a parent or guardian "commits or allows to be committed an act of sexual abuse against the child[.]" Ibid. A "parent or guardian" is defined to include "any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care." N.J.S.A. 9:6-8.21(a). A teacher is considered to be a "guardian" under the statute. Ibid. In addition, the term "sexual abuse" is defined to mean "contacts or actions between a child and a parent or caretaker for the purpose of sexual stimulation of either that person or another person." N.J.S.A. 9:6-8.84. It includes "the employment, use, persuasion, inducement, enticement or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct[.]" Ibid.

We are satisfied that there is sufficient credible evidence in the record to support the Commissioner's determination that W.C. sexually abused J.P. during the incident that occurred on August 14, 2000. J.P. was only 12 years old at the time the ALJ and the Commissioner found that W.C. exposed her breasts and asked J.P. to touch them. Such conduct clearly constitutes "sexual abuse" under N.J.S.A. 9:6-8.84.

We recognize that J.P. did not testify at the hearing; however, his statements concerning the incident were admitted through the testimony of his mother and one of the detectives who investigated the matter for the county prosecutor. Although J.P.'s assertions were hearsay, they were admissible in this matter under N.J.S.A. 9:6-8.46(a)(4), which provides that, in any proceeding under Title 9, including an administrative hearing, "previous statements made by the child relating to any allegations of abuse or neglect" are admissible; however, the statute further requires corroboration to support a finding of abuse or neglect. Ibid.

J.P.'s prior statements also were admissible under N.J.A.C. 1:1-15.5(a), which codifies the well established principle which permits hearsay evidence in administrative proceedings but requires a "residuum of legal and competent evidence in the record" to support the agency's decision. Weston v. State, 60 N.J. 36, 51 (1972). Consistent with this principle, N.J.A.C. 1:1-15.5(b) provides that "some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness." Ibid.

In our view, there is sufficient credible and competent evidence to corroborate J.P.'s assertion that W.C. exposed her breasts and asked J.P. to touch her breasts on August 14, 2000. As the ALJ found, W.C. went to J.P.'s home without his mother's knowledge and she never provided a convincing explanation for doing so. W.C. first told the detectives that she went to J.P.'s house to help him prepare for the seventh grade but she could not point to any books or materials she provided to him for that purpose. W.C. stated that J.P. asked her over to see his dirt bike. W.C. also said that she went to J.P.'s home to retrieve her CD player, which J.P. purportedly had stolen.

Moreover, M.P. testified that she arrived home early from work and found J.P. and W.C. together. M.P. said that J.P. had an erection and he had red coloring on his lips. W.C. was disheveled and unkempt. She appeared nervous. In addition, there was evidence that during the 1999-2000 school year, W.C. had developed an unusually close and inappropriate relationship with J.P. They were often alone together and W.C. had given J.P. expensive gifts. W.C. also visited J.P. at home during his summer vacation without his mother's permission. She displayed an unusual attachment to the boy at social events.

The ALJ's assessment of the credibility of the witnesses also supports his conclusion that the evidence substantiated J.P.'s assertion that W.P. exposed her breasts and asked him to touch her in the garage on August 14, 2000. The ALJ noted that, although M.P. was emotional during her testimony, she "made a favorable impression as a sincere and credible witness." Her statements at the hearing in June 2004 were "remarkably consistent" with statements that she made to the investigators on August 18, 2000, shortly after the incident occurred. The ALJ also found that M.P.'s "recollection of important details did not substantially vary over time."

On the other hand, W.C. made contradictory statements as to why she visited a 12-year old former student when his mother was not at home. W.C. insisted that J.P. had stolen her CD player but she never reported the incident to the school authorities or J.P.'s mother. She told the detectives that she visited J.P. on August 14 "to raise his self-esteem and assist him with his reading skills" but she did not identify any books that she had provided to J.P. during the summer vacation, nor was there any indication that J.P.'s mother had been consulted on the matter. In addition, the ALJ was not convinced by W.C.'s explanation for her behavior at J.P.'s graduation party, when she spent an unusual amount of time with the children; or her behavior during the local festival, when she overstayed her welcome at J.P.'s home and had to be asked to leave.

The ALJ also considered testimony offered on W.C.'s behalf by Dr. Campagna, who stated that J.P. had "poor judgment" because of his attention deficits. Campagna testified that J.P. was a susceptible child and could be influenced by a powerful figure like his mother. Campagna disapproved of the manner in which M.P. questioned her son concerning the August 14 incident but recognized that the detectives had done a professional job in their interviews and had not employed leading questions when they asked J.P. about the incidents. Campagna suggested that J.P.'s allegations were "fantastical" but there was sufficient credible evidence to establish that they were not. Ultimately, the ALJ was unconvinced by Campagna's testimony and there is ample support for his determination to accord no weight to Campagna's opinions, particularly since Campagna never interviewed either J.P. or his mother.

Although we conclude that there is sufficient evidence to corroborate J.P.'s assertions regarding the incident of August 14, we reach a different conclusion respecting the three other alleged incidents of sexual abuse. J.P. asserted that: 1) on one occasion, W.C. stood in the classroom supply closet and exposed her breasts; 2) W.C. fondled his penis over his clothing in the basement of his home; and 3) at another time, W.C. went into the classroom's supply closet, exposed her breasts and asked that he touch them.

As we stated previously, the ALJ found that there was insufficient corroborating evidence to support J.P.'s allegations regarding these incidents. The Commissioner reached a different conclusion, finding sufficient corroboration in the following facts: the physical layout of the classroom and the location of the supply closet; W.C.'s inappropriate gifts to J.P.; W.C.'s unusual attachment to J.P. at social events; W.C.'s failure to report the alleged theft by J.P. of her CD player; J.P. and W.C. were at times alone together on school grounds; and W.C. made unsupervised visits to J.P.'s home. These facts may show that W.C. had an inappropriate relationship with her 12-year old student but they do not provide sufficient corroboration of the claims of sexual abuse.

We therefore affirm the Commissioner's finding that W.C. sexually abused J.P. on August 14, 2000. However, we reverse the Commissioner's determination that W.C. sexually abused J.P. on three other occasions during the 1999-2000 school year.

Affirmed in part, reversed in part.

 

W.C. was suspended at the outset of the investigation into the matter. The district filed charges seeking her discharge. W.C. entered into an agreement with the county prosecutor, in which she was admitted to Pre-trial Intervention (PTI). The PTI agreement required that W.C. resign her position, submit to psychological/sex offender examination and comply with all counseling and treatment recommendations. The State Board of Examiners also sought the revocation of W.C.'s teaching certificates.

(continued)

(continued)

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A-5934-04T2

RECORD IMPOUNDED

July 13, 2006