DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES - v. E.G.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1238-08T21238-08T2

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

E.G.P.,

Respondent-Appellant,

and

C.P.,

Respondent.

 

Argued October 1, 2009 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from a Final Decision of the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 07-169.

Drew A. Molotsky argued the cause for appellant (Spector, Gadon & Rosen, P.C., attorneys; Mr. Molotsky, on the brief).

Chidinma Ahia, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa Raksa, Assistant Attorney General, of counsel; Ms. Ahia, on the brief).

PER CURIAM

Appellant E.G.P. appeals from a final administrative agency decision by respondent, Division of Youth and Family Services (Division), finding that she committed an act of excessive corporal punishment within the definition of N.J.S.A. 9:6-8.21(c)(4)(b), resulting in a finding of substantiated abuse and the placement of E.G.P.'s name in the child abuse registry under N.J.S.A. 9:6-8.11. We reverse.

The incident that triggered the Division's finding against E.G.P. resulted from a referral to it on October 26, 2004, alleging that E.G.P. had become upset with her grandchildren, C.J. and Z.J., and beat them, leaving C.J. with a broken blood vessel in her left eye, as well as a wrist contusion, and Z.J. with bruises on her left arm. A Division worker interviewed the children, their mother, C.P., and E.G.P. within one day of the alleged incident.

According to C.J., who was sixteen at the time, E.G.P. struck her in the eye. The worker observed C.J.'s reddened eye. Then fourteen-year-old Z.J. told the worker that E.G.P. struck her with a paddle. The worker observed multiple bruises on Z.J.'s upper left arm. E.G.P. denied striking C.J. in the eye. She also denied hitting Z.J. with a paddle. She told the worker that she pulled C.J.'s hair and struck Z.J. on the buttocks. The worker learned that C.P. was present in the home during the time E.G.P. was disciplining the children. The children told the worker that their grandmother had never beaten them before.

The children were taken to a local hospital where C.J. was diagnosed with a subconjunctival hemorrhage of the left eye. Z.J.'s medical examination also confirmed that she had multiple small abrasions on her arm. The worker filed a report with the Division indicating that abuse was substantiated for both C.J. and Z.J. The children, however, were not removed from the home. The Division recommended that C.P. attend a parenting class, noting in its report that "although [C.P.] did not attack her children, she did nothing to stop the mother-in-law from abusing her children. She should attend counseling for self[-]esteem as well."

In separate letters dated January 21, 2005, E.G.P. and C.P. were notified that the Division had affirmed the finding made by its Camden Central District Office that child abuse was substantiated as to E.G.P. and child neglect was substantiated as to C.P. Both parties appealed these decisions and the matters were assigned to an administrative law judge (ALJ) as a contested matter. See N.J.S.A. 52:14F-1 to -23.

The ALJ consolidated the matters for purposes of the hearing. Following the presentation of all the evidence, the ALJ found that the charge of neglect had not been substantiated against C.P. As to E.G.P., the ALJ found that E.G.P. slapped C.J. in the face, causing a broken blood vessel in C.J.'s left eye, and that E.G.P. also "struck both C.J. and Z.J. on the arms or wrist with a small wooden paddle . . . ."

Despite making these findings, the ALJ found that the injuries sustained by C.J. and Z.J. were "not serious injuries likely to cause death or serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ." Likewise, the ALJ determined there was no evidence that either C.J.'s or Z.P.'s "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired." Finally, although finding E.G.P.'s testimony lacking in credibility, the ALJ concluded her actions represented "an isolated incident and did not involve the infliction of excessive corporal punishment resulting in serious injuries or impairment." The ALJ recommended the reversal of the Division's findings as to both parties, removal of their names from the Division's central registry, and a permanent injunction enjoining the Division from "sending to local and State Police information relative to this incident and from identifying C.P. and E.G.P. as perpetrators of child abuse or neglect."

The Director issued a final agency decision upholding the recommendation as to C.P and modifying the ALJ's recommendation as to E.G.P. The Director found "that E.G.P. committed an act of excessive corporal punishment within the definition of N.J.S.A. 9:6-8.21(c)(4)(b)." This appeal followed.

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 Serv. Comm'n, 93 N.J. 384, 390, 397 (1983). Consequently, the scope of our review of the issue before us remains limited. "It is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Ibid. (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)).

"Although we recognize that deference is generally given to an administrative agency charged with interpretation of the law, we are not bound by the agency's legal opinions." Levine v. State, Dep't of Transp., Div. of Motor Vehicles, 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., Div. of Youth and Family Servs., 157 N.J. 161, 170 (1999)). Additionally, where an agency head rejects a recommendation of an ALJ, the basis for rejecting the recommendation must be set forth by the agency head with particularity, and new or modified findings supported by sufficient, competent, and credible evidence in the record must be made. N.J.S.A. 52:14B-10(c).

Here, the Director concluded that E.G.P.'s actions "unnecessarily and unreasonably placed the children at risk of harm under circumstances where [E.G.P.], at least, should have know[n] the risks taken by her actions." As such, the Director was satisfied that E.G.P. "committed an act of excessive corporal punishment within the definition of N.J.S.A. 9:6-8.21(c)(4)(b)."

N.J.S.A. 9:6-8.21 sets forth the definition of an abused or neglected child. The definition includes:

a child less than 18 years of age whose . . . physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of [the] parent or guardian . . . to exercise a minimum degree of care . . . 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.

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

In departing from the ALJ's finding of no excessive corporal punishment, the Director specifically noted the eye injury to C.J. and the apparent force used to paddle both girls, evidenced by the fact that the paddle broke during the paddling. A finding of excessive corporal punishment inflicted upon C.J. and Z.J. does not, however, complete the definition of abuse or neglect under N.J.S.A. 9:6.8-21. Rather, "as a part of its burden of proof, [in abuse and neglect cases] the State must still demonstrate by a preponderance of the competent, material and relevant evidence . . . the probability of present or future harm." N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super 13, 24 (App. Div. 2004). This burden is met with proof that C.J. and Z.J. suffered physical, mental or emotional impairment or the risk thereof as a result of E.G.P.'s actions. N.J.S.A. 9:6.8-21(c)(4)(b). The ALJ expressly found no such impairment or risk of impairment, determining that the incident was "isolated," the injuries were not serious, and there was no impairment or "imminent danger of becoming impaired." The Director did not reject these factual findings and in fact agreed that the actual harm to the teenagers was not "critically severe." While we discern no basis to disturb the Director's finding that E.G.P.'s action constituted excessive corporal punishment, the absence of proof of the "probability of present or future harm" to C.J. and Z.J., who were adults by the time of the hearing, renders the Division's proofs lacking as to an essential element in the definition of abuse or neglect. N.J.S.A. 9:6.8-21(c)(4)(b); S.S., supra, 372 N.J. Super. at 24. As such, we are constrained to reverse.

Reversed. The report to the Division's child abuse registry shall be withdrawn.

 

On September 29, 2008, the Director accepted the ALJ's initial decision, which reversed the Division's finding of neglect as to C.P. The Director further ordered that the "finding in this matter be changed from substantiated to unsubstantiated for C.P."

"A subconjunctival hemorrhage occurs when a small blood vessel breaks open and bleeds near the surface of the white of the eye (bulbar conjunctiva)." Medline Plus, http://www.nlm. nih.gov/medlineplus/ency/article/001616.htm (last visited Oct. 28, 2009).

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8

A-1238-08T2

RECORD IMPOUNDED

November 6, 2009