DIVISION OF YOUTH AND FAMILY SERVICES v. To.H. and T.B

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1305-07T31305-07T3

DIVISION OF YOUTH AND FAMILY SERVICES,

Respondent,

v.

To.H. and T.B.,

Appellants.

________________________________

 

Submitted: January 14, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. 8582-06 & 8583-06.

Helmer, Paul, Conley & Kasselman, attorneys for appellants (Marianne Rebel Brown, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jarrod M. Miller, Deputy Attorney General, on the brief).

PER CURIAM

Defendant To.H. appeals from a final decision of the Divi sion of Youth and Family Services (DYFS) finding substantiated child abuse and requiring inclusion of her name in the child abuse registry (Central Registry) pursuant to N.J.S.A. 9:6-8.11. On May 8, 2006, the DYFS Camden North Local Office made a find ing of substantiated child abuse against To.H. and T.B., based on their use of excessive corporal punishment on their son, Te.H. To.H. sought a dispositional review of this finding on May 12, 2006. Susan Gertsman, an Administrative Review Officer for DYFS, affirmed the local office's decision on September 29, 2006. On October 3, 2006, To.H. requested a hearing before the Office of Administrative Law and a plenary hearing was conducted before an Administrative Law Judge (ALJ) on April 26, 2007. On May 17, 2007, the ALJ issued a written decision finding that abuse by To.H. had been substantiated and ordered retention of her name in the DYFS Central Registry of child abusers. At the same time, the ALJ reversed the finding against T.B. and ordered his name stricken from the Central Registry. To.H. filed excep tions to this decision on June 4, 2007, and on August 31, 2007, Eileen Crummy, the Director of DYFS, adopted the ALJ's decision and affirmed. We now affirm the agency's final decision.

On Tuesday, January 10, 2006, DYFS in Trenton notified the Camden local office of a report of possible child abuse, which was coded "9-7" to require an immediate response. The referral was made by Dr. Mary Burke at the San Miguel School. Burke, a guidance counselor at the school, reported that Te.H., a thir teen-year-old student in the seventh grade, told a volunteer teacher on Monday, January 9, 2002, that his mother hit him with an extension cord the day before, causing him to have difficulty sitting comfortably in class. DYFS then dispatched Eileen Groark, a Family Service Specialist II, to investigate the inci dent. Groark interviewed Burke, who stated Te.H. admitted to stealing six dollars from his mother's purse and that his mother beat him with an extension cord as punishment. Burke stated that Te.H. was not a "behav ioral problem" in the school. She reported Te.H. had bruises and marks on his arms and that she had called To.H., "who expressed remorse about the incident."

Groark then interviewed Te.H. in the school's guidance office. Te.H. reiterated that To.H. hit him repeatedly with an extension cord on his back, buttocks and thighs because he stole six dollars from her purse, but remarked his injuries were starting to fade. Te.H. told Groark that he could hardly sit in class on Monday or Tuesday because of the pain in his buttocks. When Groark asked Te.H. why he needed to steal money, he stated that he wanted the money to buy school snacks and to buy more minutes for his cell phone. He told Groark that when To.H. informed T.B. about what happened, "he got another beating with a belt." Te.H. remarked that he never stole money before and would never do it again because he knew it was wrong. At the time, Te.H. spent the weekdays with T.B. and the weekends with To.H.

Groark then observed what she characterized as "defense bruises" on Te.H.'s forearm and "extension cord lines on his upper arms, upper thighs, back and buttocks." The marks on Te.H.'s arm were "circular and bruising" and were between a quarter and a half-dollar in size. One mark in particular was a "loop[-]type" bruise with a design in it that could have been from a belt buckle. The marks on his back, buttocks, and thighs were altogether different. They were striated lines, as from an extension cord, and did not look like stretch marks. Groark took photographs of the bruises and marks. Thereafter, she arranged to meet with To.H. and T.B. the next day at the home of To.H.

At the meeting, To.H. stated that "stealing had been a con stant problem since her son was about seven years old." She stated that he stole six dollars from her on Sunday and had pre viously stolen five dollars. She also reported that Te.H. had previously stolen $500 from his uncle and, at another time, she caught him doing an "army crawl" across the bedroom floor to her purse while she was supposedly asleep. Additionally, he stole $180 from his maternal grandmother's purse when he stayed at her home over a weekend.

To.H. then retrieved a green belt with a "heavy gold buckle," which she admitted she used to hit Te.H., and showed it to Groark. The design on the buckle matched the design in the loop-type mark on Te.H.'s arm. Groark did not believe that the belt could have inflicted the injuries she saw on Te.H.'s back, buttocks or thighs. To.H. denied hitting Te.H. more than once and denied owning an extension cord. To.H. expressed concern about losing her job with Bancroft Behavioral Health over the incident and told Groark that she wanted to start individual and family counseling.

T.B. told Groark that his son as a "video junkie" who stole money to get more games. T.B. stated that Te.H. had a cell phone and a prepaid card and that he stole the money to buy more minutes. He denied striking his son with either a belt or an extension cord. T.B. told her that he had a different way of disciplining Te.H. and tried to work with Te.H.'s paternal grandmother.

Both parents agreed not to use corporal punishment in the future and signed a Safety Assessment and Safety Plan, which reflected that Te.H. had been beaten with a belt and an exten sion cord. The mother agreed to get counseling. DYFS thereafter substantiated abuse against both parents, finding enough evidence to show excessive force as a form of physical punishment because there were physical marks.

After Groark testified before the ALJ, T.B. called his mother, M.E.B., who testified that she had not seen any marks on Te.H. after the incident in question and that she had never seen T.B. hit him or physically abuse him. To.H. called her sister B.W.H. to testify, who confirmed that she was present on the night of the incident. When To.H. discovered Te.H. had stolen some money, To.H. "yelled at him, and sent him to his room" upstairs. To.H. then went upstairs while B.W.H. remained in the living room downstairs watching television. B.W.H. testified that she knew Te.H. "received a beating" because she heard To.H. "fussing at him" and she could hear her physically disciplining him. Later, B.W.H. had a talk with Te.H. about not stealing. At that point, Te.H. did not have any visible injuries and was just upset because he got in trouble. B.W.H. could not recall seeing any bruises or marks on Te.H. and testified that he did not look like he was in pain and did not ask for medical care or ice.

The parents called their son to testify. Te.H.'s testimony substantially differed from what he reported to Groark and the school officials fifteen months earlier. He stated that, after he stole her money, he started to go over to a friend's house, but his mother called him back and made him stay in his room the whole day. His aunt B.W.H. was in the house to stay overnight and she and To.H. had a discussion. Then, To.H. went up to his room and disciplined him "with a belt on [his] bottom . . . a little bit of times." Te.H. said that To.H.'s nail broke while she was administering the discipline. He denied that she hit him anywhere other than on his buttocks or that she hit him with a buckle. Te.H. also testified that he was clothed at the time and that the belt did not leave any marks. According to Te.H., the incident was intended to "teach me a lesson in life" and it was the only time it happened.

Te.H. testified that a teacher noticed bruises on his arms and sent him to the school office. He was mad about being pulled out of class and mad about the beating, so he told the guidance counselor that To.H. had beaten him with an extension cord. However, he claimed at the hearing that the marks on his arm were from "past performance" when he was playing football with his friends. Te.H. denied that the marks on his legs were from an extension cord, claiming that they were stretch marks from being "a growing boy." He denied telling Groark that his father hit him, denied that his father had ever hit him with a belt or a cord, and stated that T.B.'s method of discipline was to deprive him of something.

Once the record was closed, the ALJ issued an Initial Decision, stating his fact-findings and legal conclusions:

Having considered all of the evidence and having observed the witnesses, I make the following findings of fact. Te.H., his parents, M.B. (his grandmother), and B.W-H. (his aunt) have a close relationship and all communicate and cooperate in raising Te.H. On Sunday, January 8, 2006, To.H. learned that Te.H. had stolen money from her purse and she confronted him about it in their home. To.H. verbally chastised Te.H., sent him to his room, and, thereafter, To.H. entered Te.H.'s room and repeatedly struck him with a belt. To.H.'s beating of Te.H. was so forceful that B.W-H. could hear it from downstairs. To.H. also called T.B. T.B., a credible witness, counsels Te.H., rewards him for good conduct and withholds privi leges from him for misconduct. Sometimes, M.B., a respectable woman who works with the State Police, also counsels Te.H. T.B. came to To.H.'s house and later verbally coun seled Te.H. about the repercussions for stealing. T.B. credible denied physically disciplining Te.H. and I do not find that he would have admitted such to Ms. Groark (whose testimony in that regard was mis taken). Days after To.H.'s beating of Te.H., bruises and marks remained visible and left him unable to sit comfortably. Te.H.'s teacher observed the bruises and marks in school. The possible child abuse was reported to the school's guidance office and then to the DYFS. Ms. Groark came to the school and observed the bruises and marks and later interviewed the respondents in To.H.'s home.

After reviewing applicable law, the ALJ concluded:

Consistent with the findings of fact, To.H. struck Te.H., her son, then less than 18 years of age, repeatedly and with force sufficient to be heard downstairs; suffi cient to leave bruises and marks, including the impression of the belt buckle, visible for several days; and sufficient to prevent Te.H. from sitting comfortably in class the next day. The bruises and marks did not result from an accident. Consequently, the DYFS has proven that To.H. inflicted "exces sive corporal punishment" on Te.H. and proven "substantiated" child abuse, and relevant information, including To.H.'s name, must remain on the Central Registry. N.J.S.A. 9:6-8.21(c)(4)(b), N.J.A.C. 10:129-13.

With regard to T.B., the ALJ found that DYFS failed to prove by a preponderance of the evidence that he had used exces sive force on Te.H. or was otherwise guilty of child abuse or neglect. He ordered T.B.'s name removed from the Central Regis try. Pursuant to N.J.A.C. 1:1-18.4, To.H. promptly filed excep tions to the ALJ's Initial Decision to the agency for a Final Decision. She contended that the evidence was insufficient to support a finding of abuse because the corporal punishment she inflicted was not excessive. She pointed to the discrepancies between Te.H.'s testimony at the ALJ hearing and the statements attributed to him by Groark. She denied that there were any bruises or marks, pointing out that none were visible in the photographs and that no medical treatment was provided to her son by DYFS. She contended that no testimony was consistent with that of Groark, who was not a credible witness because she mistakenly substantiated abuse by T.B. She asserted that she was a firm, but not overly harsh, parent who wanted the best for Te.H. and gave him "lots of love."

On August 31, 2007, DYFS Director Eileen Crummy issued the agency's Final Decision. She reviewed the Initial Decision, the evidence and applicable law and then summarized the issues raised in To.H.'s exceptions as follows:

In her exceptions, To.H. admitted hitting her son, but denied that her corporal pun ishment was excessive. She also asserted that she will continue to fight these alle gations. In additional, To.H. pointed out discrepancies in the DYFS report and the testimony at the hearing concerning whether or not the child was hit with an extension cord and whether or not the child's father also hit him on the day of the incident.

To.H. further explained that she disci plined her child because he had stolen money and other items from her pocket and that he needed to be shown that stealing is wrong. In addition, To.H. argues that the photo graphs taken by the DYFS worker did not show any of the alleged injuries. To.H. also questioned why no medical treatment was obtained by the DYFS worker if her child was seriously harmed. Additionally, To.H. ques tioned the accuracy of the statements pro vided by the DYFS worker as well as the worker's credibility as a witness due to the fact that the worker substantiated T.B. "for no reason." Further, To.H. asserted that she is a good parent, "who is firm, but not overly harsh," who wants the best for her child.

The Director then made the following determination:

The OAL file was transmitted to this agency for consideration pursuant to N.J.S.A. 52:14B-10(d) and was reviewed in its entirety. Careful consideration was given to the ALJ's findings of fact and con clusions of law with respect to the testi mony and evidence presented at the hearing. Careful consideration was also given to the respondent's exceptions, which took issue with the ALJ's conclusions and findings. In addition, the respondent hoped to raise new evidence. However, I will not consider any evidence that is not established in the record. Further, I am not persuaded by the respondent's assertions that her actions were not abusive. Based upon my review of the record, I concur with and hereby ADOPT the ALJ's findings and conclusions, which included that To.H. struck her son repeat edly and with sufficient force to be heard downstairs; to leave bruises and marks on the child (including the impression of the belt buckle) which were visible for several days; and to prevent Te.H. from sitting com fortably in class the next day. Accord ingly, I FIND that the preponderance of the evidence supports the finding of abuse con cerning To.H. Therefore, I AFFIRM the find ing of abuse concerning To.H. and ORDER that To.H.'s name remain on the Central Registry. Finally, I REVERSE that finding of abuse concerning T.B. and ORDER that T.B.'s name be removed from the Central Registry.

This appeal followed.

To.H. argues that DFYS's Final Decision should be reversed because it is not based on a substantial evidentiary record, is arbitrary, capricious and unreasonable, and violates implied and express legislative policies. Specifically, she contends first that the decision rests on incompetent and unreliable evidence that a reasonable mind would not find convincing. Second, she asserts that, even if the evidence were sufficient, the disci pline did not rise to the level of excessive corporal punishment and the finding that it did is contrary to express and implied legislative policies. Third, she asserts that the intent of the statutes and regulations is "to protect children from unusual and unreasonable punishment, not to punish parents by forcing them to lose their jobs."

The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in apply ing the legislative policies to the facts, the agency clearly erred in reaching a con clusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994).]

With respect to To.H.'s first argument on appeal, that the agency's final decision is not based on a substantial evidentiary record, the scope of our review

is the same as that [for] an appeal in any nonjury case, i.e., "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.

[Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).]

Accordingly, "[o]ur function is to determine whether the admin istrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close, supra, 44 N.J. at 599. The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable falls squarely upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Assistance, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).

More specifically with respect to To.H.'s contention that the final decision rests on incompetent and unreliable evidence, that is, evidence that was not credible, where an ALJ finds one or more witnesses to be credible, "generally it is not for us or the agency head to disturb that credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005). This is so because we are not in a good position to judge credi bility and ordinarily should not make new credibility findings:

There is no scientific measure on appeal for definitely ascertaining to what extent the conclusions of the triers of the facts correspond to the actualities where the witnesses have disagreed, the permissi ble inferences derivable from the evidence were divergent and contradictory, and where some of the evidence, deemed by the triers of the facts to have been true, rationally supports the conclusions. It has been remarked that an appellate court in review ing the trial court's determination of the facts "has to operate in the partial vacuum of the printed record," and that "the best and most accurate record (of oral testimony) is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried."

[Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952).]

"Rather, our aim is to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.) (quotation omitted), certif. denied, 172 N.J. 355 (2002).

The only witness who impeached the testimony of Groark was Te.H. Neither parent testified, the grandmother was not present when the beating occurred, and the aunt, who was present, con firmed that she heard the beating administered. Although the grandmother testified that she did not see any marks or bruises, she also did not testify that she examined Te.H.'s bare arms, back, buttocks, and thighs. Similarly, the aunt testified that Te.H. did not have any "visible injuries" but she did not tes tify that she examined his bare skin. Indeed, Te.H. testified that on January 9, 2006, in the evening he was fully clothed and, thus, it was unlikely that his aunt would have made any observations of bruises and marks. Poor quality photographs also do not impeach Groark's testimony; they only fail to corroborate it.

With respect to Te.H.'s testimony, he testified that his mother disciplined him "with a belt on [his] bottom . . . a lit tle bit of times." The beating was obviously violent enough to break To.H.'s nail, as Te.H. testified. It was also violent enough that the aunt could hear it even though she was on the first floor watching television. Although Te.H. denied that the beating left any marks, the ALJ was well within his province in deciding whether Groark or Te.H. was the more credible witness and Groark's testimony was corroborated by information supplied by the school to DYFS in Trenton. We find absolutely no basis to disturb to ALJ's credibility determinations and the agency would have been remiss had it done so.

In fact, there is a substantial amount of evidence in the record that permitted the ALJ to affirm the finding of abuse. Groark observed and documented what she characterized as "defen sive" bruises on Te.H.'s forearm as well as striated lines on his arms, thighs, back, and buttocks. She documented and later testified that Te.H. told her that he had trouble sitting down on the day he returned to school because his mother had beaten him with an electrical cord. She observed bruises between a quarter and a half-dollar in size on his arms, and testified one of the bruises was different from the others, "loop type" in appearance with a design, possibly from a belt buckle. Groark further testified that she had two years of work experience and a module of DYFS medical training, and in her opinion, the stri ated marks were not stretch marks. Finally, after speaking with Te.H., Groark interviewed To.H and T.B. She testified that To.H. showed her a green cloth belt with a metal gold buckle that was consistent with the loop-type bruise she observed ear lier on Te.H. and with a similar design. According to Groark, To.H. admitted that she hit Te.H. with it, although she only admitted to hitting him once. The ALJ's decision to rely on the majority of Groark's testimony, even though he found a portion of it relating to T.B. to be "mistaken," was within his purview as a fact finder and does not by itself warrant reversal. As in Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 100-01 (App. Div. 2000),

We are obliged to give deference to the [ALJ's] finding, because it was obviously influenced by the [ALJ's] opportunity to see [those] witnesses, "which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146[, 161 (1964)]. The ALJ was not required to discuss the testimony and the statements of every witness and describe in detail why he found some more credible than others. See State v. Locurto, 157 N.J. 463, 471-74 (1999). No purpose would be served by seek ing a further expression from the ALJ on that score. State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). "The matter is strictly one of credibility and there is no reason for our now rejecting the testimony credited by the [ALJ] before whom it was given." Ibid.

We turn to To.H.'s second argument that the discipline did not rise to the level of excessive corporal punishment under the statute and the regulations. According to To.H., nothing in extant case law supports the notion that the marks on Te.H.'s back, buttocks, thighs, and arms and his inability to sit com fortably support a substantiated finding of child abuse, thus requiring reversal. She contends that discipline only rises to the level of excessive corporal punishment "when the evidence clearly indicates that a beating or injury took place, that the child suffered a severe injury or trauma that required medical attention, when the Prosecutor's office follows up with a crimi nal proceeding, and when the child could not go about his normal activities."

In making this argument, To.H. mistakenly relies on N.J. Division of Youth and Family Services v. A.R.G., 179 N.J. 264 (2004). However, the issue in that case was whether the beating administered by the father constituted "aggravated circumstances of abuse," as defined in N.J.S.A. 30:4C-11.3(a), sufficient to justify relieving DYFS of the burden of providing services under N.J.S.A. 30:4C-15.1(a)(3) in an action to terminate the father's parental rights to his children. A.R.G., supra, 186 N.J. at 270. Thus, the issue was not whether there was substantiated abuse, but whether the abuse constituted aggravated circumstances. Id. at 284-84.

The scope of our review of this issue 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 of N.J., Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999)).

While we are not bound by an agency's interpretation of "a strictly legal issue," Mayflower Secs. Co. v. Bureau of Secs., Div. of Consumer Affairs, 64 N.J. 85, 93 (1973), when that interpretation is inaccurate or contrary to legislative objec tives, N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978), we will nonetheless give considerable weight to its construction of the statute that it is charged with enforcing, G.S., supra, 157 N.J. at 170. Moreover, an agency's exercise of its statutorily delegated responsibilities is gener ally entitled to a strong presumption of reasonableness and an appellate court will ordinarily defer to that agency's expertise and superior knowledge in the field. City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

N.J.S.A. 9:6-8.21(c) defines an abused or neglected child in relevant part as follows:

c. "Abused or neglected child" means 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 fail ure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . by unreasonably inflicting or allowing to be inflicted harm, or substan tial 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. 9:6-8.46(b) requires that "any determination that a child [has been abused or neglected] must be based on a prepon derance of the evidence," N.J. Division of Youth & Family Ser vices v. K.M., 136 N.J. 546, 552 (1994), not clear and convincing evidence, as To.H. suggests.

A parent or 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 reck lessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. An intentional act that results in unintentional, "accidental" consequences may also satisfy the criterion under N.J.S.A. 9:6-8.21(c):

[I]f an intentional act produces an uninten tional result[,] the injury is not accidental. A parent or guardian can commit child abuse even though the resulting injury is not intended. DYFS and the courts must examine the circumstances leading up to the injury to determine whether it was caused by acci dental means. The intent of the parent or guardian is irrelevant.

[G.S., supra, 157 N.J. at 175 (internal quotations and citation omitted).]

The determination of whether an act constitutes an act of abuse or neglect is left 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 182. The focus is "on the harm to the child." Ibid.

Pursuant to its authority, DYFS promulgated N.J.A.C. 10:129-2.2, which creates three categories of acts that may (a) constitute abuse or neglect, (b) constitute abuse, or (c) con stitute neglect. The first category, which is applicable here, provides:

(a) The allegations of the types of inju ries or risk or harm that may be abuse or neglect include:

1. Child death;

2. Head injuries;

3. Internal injuries;

4. Burns;

5. Poison or noxious substances;

6. Wounds;

7. Bone fractures;

8. Substantial risk of physical injury or environment injurious to health and welfare;

9. Cuts, bruises, abrasions, welts or oral injuries;

10. Human bites;

11. Sprains or dislocations;

12. Mental or emotional impairment; and

13. Risk of harm due to substance abuse by the parent/caregiver or the child.

[N.J.A.C. 10:129-2.2(a) (emphasis added).]

A substantiated case of abuse is determined when a child protec tive investigator finds "by a preponderance of the evidence that a child is an abused or neglected child as defined in N.J.A.C. 10:133-1.3 because the alleged child victim has been harmed or placed at risk of harm by a parent or guardian." N.J.A.C. 10:129-1.3.

Here, the preponderance of the evidence supported a finding of substantiated abuse. As the ALJ found, To.H. struck Te.H. "repeatedly and with force sufficient to be heard downstairs; suffi cient to leave bruises and marks, including the impression of the belt buckle, visible for several days; and sufficient to prevent Te.H. from sitting comfortably in class the next day." Based on the credible evidence as a whole, as determined by the fact-finder, DYFS reasonably interpreted and applied the statute and the applicable regulations consistently with their intent to protect children when it concluded that abuse had been substantiated. We give considerable weight to its inter pretation, G.S., supra, 157 N.J. at 170, and affirm the finding of substantiated abuse.

To.H.'s final argument is that the legislative purpose of Title 9 is to protect children, not to punish parents by forcing them to lose their jobs. She urges us to find that the Divi sion's own regulations, as well as the "plain meaning" of the word "excessive" indicate that only extreme injuries, "espe cially the type of injury that leaves scars or could kill a child," can justify a finding of substantiated child abuse. We are not persuaded by this argument.

To.H. is correct in her assertion that N.J.S.A. 9:6-8.8 and G.S., supra, 157 N.J. at 171, state that the purpose of Title 9 is to prevent innocent children from suffering "further injury and possible death." To.H. is also correct that the goal of Title 9 was to protect children, not punish parents. G.S., supra, 157 N.J. at 171. However, Title 9 also requires DYFS to keep the names of those persons that it has found committed a substantiated act of child abuse in the Central Registry, a cen tralized databank containing reports of substantiated findings of child abuse created by N.J.S.A. 9:6-8.11. Such findings are confidential, N.J.S.A. 9:6-8.40, but may be disclosed to various interested parties in accordance with N.J.S.A. 9:6-8.10a(b)(1)-(22) and N.J.S.A. 30:5B-25.3. In re Allegation of Physical Abuse Concerning L.R., 321 N.J. Super. 444, 448 n.3 (App. Div. 1999). More specifically, Title 9 provides that such names may be disclosed to "[a]ny person or entity mandated by statute to consider child abuse or neglect information when conducting a background check or employment-related screening of an individ ual employed by or seeking employment with an agency or organi zation providing services to children." N.J.S.A. 9:6-8.10a(b)(13). N.J.S.A. 9:6-8.10a and -8.11 are consistent with the overall scheme of Title 9 to protect all children from future abuse and neglect, not just those who have already been abused or neglected. It may be that To.H.'s employer, Bancroft Behavioral Health, falls within the purview of N.J.S.A. 9:6-8.10a(b)(13), and, as To.H. fears, may be able to access infor mation respecting the substantiated abuse of Te.H. in order to protect other children who may in the future have contact with To.H. The possible loss of To.H.'s job is no more than a col lateral consequence of her substantiated abuse of Te.H. and not an intended form of punishment directed at her by the statute.

 
Affirmed.

These photographs were admitted into evidence but were overexposed and what was depicted in them was difficult to discern. At the hearing before the ALJ, Groark circled the injuries on each photograph although the copies of photographs in the appendix on appeal have no such markings.

The new evidence was proposed testimony from Te.H.'s physician that he has stretch marks on his thighs. To.H. filed a motion before us seeking permission to supplement the record with a doctor's note dated February 21, 2008, indicating that Te.H. has stretch marks on both thighs. We denied this motion by order of April 18, 2008. Not satisfied with our ruling, To.H. attached the doctor's note to her reply appendix in violation of Rule 2:5-5(b). We have not considered this new evidence on appeal, but do note the passage of two years between the abuse and the doctor's note and the absence of any mention of marks on Te.H.'s back and buttocks. Thus, the note does not raise a fact dispute with respect to the evidence presented to the ALJ respecting the marks and bruises observed by Groark on January 10, 2006.

N.J.S.A. 9:6-8.21 to -8.73, is collectively known as Title 9. N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 87 (App. Div. 2008).

(continued)

(continued)

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A-1305-07T3

RECORD IMPOUNDED

January 28, 2009