NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES DIVISION OF YOUTH AND FAMILY SERVICES v. S.H.

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1601-09T3

NEW JERSEY DEPARTMENT OF

CHILDREN AND FAMILIES, DIVISION

OF YOUTH AND FAMILY SERVICES,

Petitioner-Respondent,

v.

S.H.,

Respondent-Appellant.

October 15, 2010

 

Argued September 29, 2010 - Decided

 

Before Judges Lihotz and J. N. Harris.

 

On appeal from a Final Decision of the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU #07-548.

 

Chad N. Cagan argued the cause for appellant, S.H. (Sonnenblick, Parker & Selvers, P.C., attorneys; Mr. Cagan, on the brief).

 

Jarrod M. Miller, Deputy Attorney General, argued the cause for respondent, New Jersey Department of Children and Families, Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Miller, on the brief).

 

 

 

PER CURIAM

Appellant S.H. appeals a finding of child abuse by the Director of the Division of Youth and Family Services, Department of Children and Families (collectively, DYFS or Division). The determination is bottomed upon the intentional striking of S.H.'s son's head, which resulted in the unintended consequence of unloosing an eyeglass lens that caused the teenager a temporary eye and face injury. After reviewing the agency record through the prism of the totality of the circumstances together with the teachings of our recent decisions in Division of Youth & Family Services v. K.A., 413 N.J. Super. 504 (App. Div. 2010) and Division of Youth & Family Services v. C.H., 414 N.J. Super. 472 (App. Div.), same result on reconsideration, Division of Youth & Family Services v. C.H., ___ N.J. Super. ___ (App. Div. 2010) we find that the Division's Final Decision was not supported by substantial evidence. Accordingly, we reverse.

I.

Although the facts are not materially in dispute, we enumerate those that most closely align with the Division's view. We also mention the lengthy procedural history of this matter in order to place in context the events of over five years ago.

On June 17, 2005, defendant's son, D.H., then three days shy of his sixteenth birthday, remained out late with friends and failed to tell his parents that he would be returning home after his assigned curfew. The next day, when S.H. attempted to confront his son about the night before, D.H. stormed off to his room and slammed the door, prompting S.H. to follow in order to teach D.H. how to quietly close a door. The lesson did not go as planned.

In the ensuing discussion, D.H. antagonistically ignored and disregarded the parental advice of his father. This impelled S.H. to physically lash out at his son with a single smack to the side of D.H.'s head to get his attention, causing a lens from D.H.'s eyeglasses to dislodge. The evidence was inconclusive as to whether S.H. used an open or closed hand to administer the swipe. Nevertheless, no bruises resulted directly from that hit. Instead, the lens and damaged eyeglass frame indirectly caused a small scratch under D.H.'s left eye and an injury to the eye itself.

Appellant immediately took D.H. to the emergency room, where it was reported that the child experienced eye trauma and blurry, decreased vision. No stitches were required. A doctor in the emergency room called the Division, and two of its investigators arrived at the hospital shortly thereafter, where they interviewed the treating physician, D.H., and the parents. The following day, on June 19, 2005, D.H. was taken to Dr. Guy S. Mullin, M.D., an eye specialist, who treated D.H. for blurred vision stemming from a bruised retina. By all accounts, D.H.'s injuries resolved within a few months, with no permanent damage, and D.H. has thrived with no physical, mental, or emotional impairments.1

An initial investigation and observation of S.H.'s home was conducted on the day after the incident by DYFS caseworker Gilda Whitehurst. Whitehurst and her supervisor concluded that aside from this instant isolated incident, there were no other safety or welfare concerns for the children2 in S.H.'s family.

On June 20, 2005, DYFS investigator Alexandria Gordon responded to S.H.'s home to conduct a follow-up investigation of the incident. In the Risk Assessment Forms completed in July 2005 by Gordon, and approved by her supervisor, the family was deemed low-risk for domestic violence, demonstrated no safety issues, and indicated `no evidence of immediate or impending danger or threat of serious harm to the children. The family was described as living in a "home [that] was immaculate and large; they had an abundance of food, and all of the utilities were functioning properly."

In a letter dated July 14, 2005, to the referring physician at the emergency room, Gordon wrote:

We have completed our investigation and evaluation of the referral. The Division has determined that the family will not require further services from our agency.

 

Notwithstanding this advice, on the same date, Gordon, together with a different supervisor, wrote to D.H.'s parents, advising them "[t]he Division's investigation determined that child abuse/neglect was substantiated. You have been identified as harming the child or placing the child at risk of harm."

Several days later, another letter substantiating child abuse was penned by Gordon, this time assented to by a third supervisor, that was directed to S.H. alone. S.H. requested a dispositional review to appeal this finding of substantiated child abuse. The Division acknowledged the request and appeal, notifying appellant of a backlog of review requests, and that his review could take up to a year. S.H. was also informed of the alternative of appealing directly to the Office of Administrative Law (OAL). S.H. chose to pursue the local review process first.

Almost two years later, on June 4, 2007, S.H. was informed in a letter authored by a DYFS Administrative Review Officer that "[b]ased on a paper review of the Division's investigative reports the finding of the abuse has been affirmed." Finding that D.H. had sustained "an abrasion and a hyphema (bleed) to his eye," the letter concluded, "[t]he fact that you did not intend to harm [D.H.] does not matter."

S.H. promptly requested further review of the determination, and was informed on August 8, 2007, that his appeal was to be transferred to the OAL for an administrative hearing. After an exchange of discovery, including requests for admissions, a case management conference was conducted by an administrative law judge (ALJ) on September 16, 2008. At that conference, the attorney for S.H. stated without opposition from either the attorney representing DYFS or the ALJ that the legal issue to be determined was "did [the incident] constitute excessive corporal punishment." The ALJ noted that another way to frame the issue was to ask, "[w]hat constitutes acceptable corporal punishment?"

On May 20, 2009, the contested hearing was conducted by a different ALJ. Both defendant and caseworker Gordon testified. Gordon testified about her investigative findings and observations of the family, conceding that she and her superior at the Division agreed that the matter did not warrant further criminal investigation or a referral to the county prosecutor. Nevertheless, the caseworker explained the allegations of abuse and the aforementioned facts leading up to the event on the night in question.

Defendant testified on his own behalf. He did not deny that he struck his son in anger, causing the eyeglasses to break, and injury to occur to D.H.'s eye. While S.H. claimed that the follow-up visits to the eye doctor were not required, the continued vision problems and doctor's reports suggested otherwise.

After reviewing all of the testimony and evidence, the ALJ issued an Initial Decision, which determined that

D.H.'s physical condition was impaired after this incident with respondent as the result of S.H.'s failure to exercise a minimum degree of care in providing for his proper supervision.

 

. . . .

 

D.H.'s injuries were not caused by accidental means.

 

. . . .

 

[T]he incident did constitute an instance of "abuse or neglect" as defined by N.J.S.A. 9:6-8.21c and N.J.A.C. 10:133-1.3.

 

. . . .

 

DYFS has proven its allegations of substantiated child abuse by a preponderance of the credible evidence. Thus, the name of S.H., and the substantiated abuse finding as to this incident, should remain in the DYFS Central Registry.

 

S.H. took exception to these, and many other findings of the ALJ.

The Division subsequently rendered a Final Decision on November 3, 2009. It adopted the ALJ's Initial Decision in its entirety, further rejecting defendant's claim that the Division failed to prove corporal punishment, explaining that N.J.S.A. 9:6-8.21(c)(4)(b) applies "whenever a parent . . . unreasonably inflicts harm . . ., as here, in a misguided attempt to secure the child's attention." In its conclusion, the Division found

S.H.'s intentional act directly caused a substantial injury to D.H. in a very vulnerable location of his body, and the D.H. was placed at substantial risk of harm beyond that which he suffered. S.H. failed to exercise a minimal degree of care in his supervision of his child. Therefore [] the facts of this case support a finding of substantiated child abuse pursuant to N.J.S.A. 9:6-8.21.

 

This appeal followed.

II.

A.

We approach the issues in this appeal cautiously and with a full understanding of and appreciation for the Division's paramount oversight responsibilities regarding children in this State:

The Division is charged with the responsibility for the "care, custody, guardianship, . . . and protection of children[.]" N.J.S.A. 30:4C-2(a). In an abuse and neglect case, the Division must establish by a preponderance of the evidence that the child is abused or neglected and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Similarly, the pertinent regulation provides that abuse or neglect is "substantiated" when

 

the available information, as evaluated by the child protective investigator, indicates by a preponderance of the evidence that a child is an abused or neglected child as defined [by the statute] 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.]

 
[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 344-45 (2010).]

 

Our role in the review of determinations of substantiated child abuse by the Division was recently expressed as follows:

[T]he Supreme Court set forth the established principles governing appellate review of final decisions such as this, stating:

 

Reviewing courts should give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing. Appellate courts, however, are not bound by an agency interpretation of a strictly legal issue, Mayflower Securities Co., Inc. v. Bureau of Securities in Div. of Consumer Affairs of Dept. of Law and Public Safety, 64 N.J. 85, 93 (1973), when that interpretation is inaccurate or contrary to legislative objectives.

 

[G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999).]

 

[N.J. Div. of Youth &Family Servs. v. J.L., 410 N.J. Super. 159, 166 (App. Div. 2009).]

None of this transforms this court into an agency rubber stamp. N.J. Dep't of Children & Families' Institutional Abuse Investigation Unit v. S.P., 402 N.J. Super. 255, 268 (App. Div. 2008). "[O]ur appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). We are mandated to engage in a "careful and principled consideration of the agency record and findings." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Nevertheless, we are obliged to uphold the agency's determinations "'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Div. of Youth & Family Servs. v. K.A., supra, 413 N.J. Super. at 509 (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).

 

 

B.

Title 9 controls the adjudication of abuse and neglect cases. N.J.S.A. 9:6-8.21 to -8.73. The wellbeing of children is the paramount concern. N.J.S.A. 9:6-8.8. An abused or neglected child is defined in pertinent part as

a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (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.9:6-8.21(c).]

 

When the matter was in its early stages in the OAL, the parties tacitly agreed that the most significant issue to be determined was, as framed by the initial ALJ, "[w]hat constitutes acceptable corporal punishment?" The Division finessed the issue of excessive corporal punishment in its Final Decision by focusing on the statutory obligation of a parent to not place his child at a substantial risk of harm by failing to exercise a minimum degree of care.

Appellant argues that it was unfair to redefine the dispute in a way that removed excessive corporal punishment from the focal point of the proceeding. Given the Division's overarching responsibilities to protect children, we do not believe that appellant was either surprised or prejudiced by this slight change in focus. Moreover, appellant has not cited any authorities, nor could we unearth any, that stand for the proposition that his due process rights were compromised by the Division's ultimate treatment of the case.

Additionally, we find little merit in appellant's arguments concerning the alleged improper utilization of admissions by the Division, and the acceptance of hearsay in the OAL. R. 2:11-3(e)(1)(E). Because of our disposition of this matter, we find it unnecessary to address appellant's argument regarding the prolonged nature of the case.3 See N.J. Div. of Youth & Family Servs. v. J.L., supra, 410 N.J. Super. at 174.

C.

"Statutory authority for DYFS to investigate and monitor child abuse allegations appear in N.J.S.A. 9:6-8.8 to -8.20 and N.J.S.A. 9:6-8.21 to -8.82 . . . . The regulations adopted to implement the statute . . . require DYFS to evaluate the available information to determine whether that allegation is 'substantiated,' 'not substantiated' or 'unfounded.'" N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998). A determination of abuse must be shown by a preponderance of the evidence during a fact-finding hearing. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 552 (1994).

N.J.A.C. 10:129-2.2(a)(2) (head injuries), -2.2(a)(6) (wounds), and -2.2(a)(9) (cuts, bruises, abrasions, welts or oral injuries) are examples found in the Division's regulations of the types of injuries or risk or harm that may be deemed abuse or neglect. Without relying on any of these explicit categories, the Division's Final Decision implicitly recognized that the short-term blurred vision, abrasions, and hyphema in D.H.'s eye were embraced within the regulatory directive. Nevertheless, the mere cataloging of injuries is not enough to substantiate child abuse.

Our Supreme Court has explicated N.J.S.A. 9:6-8.21(c), explaining that "'[w]hen the act which produced the unforeseen result was done exactly as intended and there was nothing unusual about it other than the result itself, only the result was accidental . . . [the injury] was not effected by accidental means.'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 175 (1999)(quoting Linden Motor Freight Co. v. Travelers Ins. Co., 40 N.J. 511, 530 (1963)). Moreover,

[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 accidental means. The intent of the parent or guardian is irrelevant. The legislative history of Title 9, precedent, and public policy support the conclusion that a Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child, and not on the guardian's intent.

 

[Id. at 175-76 (citation omitted).]

 

What is absent from the Division's analysis is a fulsome review of "the circumstances leading up to the injury." Id. at 175. For example, little consideration was given to the ALJ's finding that the incident was an isolated one. The home life of D.H. and his ability to thrive and excel in an intact family were given short shrift. The high level of cooperation shown by S.H. during the Division's investigation; his concession that he acted out of frustration and anger; and his overt concern for the health of his child after this regrettable incident combine to paint a picture of the family and S.H. in particular as not deserving of enhanced governmental oversight or the adverse reputational consequences for an individual listed in the New Jersey Child Abuse Registry, N.J.S.A. 9:6-8.11. See N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

W

e must not sacrifice our common sense of the situation to the Division's zealous stewardship of the rights of children. The evidence plainly shows that D.H.'s peculiar harm was a once in a lifetime occurrence. The physical striking, along with its totally unforeseen outcome, was not part of a pattern of abuse. While we appreciate that in a single instant a child can be put at risk, we cannot agree that the record we have reviewed supports the Division's finding of substantiated child abuse by S.H. If anything, what happened on June 17, 2005, was more likely an aberrational act that does not deserve the censure of Title 9.

Reversed.

1 The record reflects that D.H. was an exceptional student, who since matriculated at the University of Chicago.

2 D.H.'s younger brother, W.H., resided with the family. There are no allegations of abuse or neglect relating to this child.

3 We note the adoption of N.J.A.C. 10:120A-4.3(a)(2) that now requires all requests for an administrative hearing from substantiated findings of abuse or neglect to be transmitted directly to the OAL.