DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT v. L.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2626-07T12626-07T1

DEPARTMENT OF CHILDREN AND

FAMILIES, INSTITUTIONAL ABUSE

INVESTIGATION UNIT,

Petitioner-Respondent,

v.

L.P.,

Respondent-Appellant.

________________________________________________________

 
Argued Telephonically January 29, 2009 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Department of Children and Families, Institutional Abuse Investigation Unit, Docket No. AHU 06-096.

Mark W. Catanzaro argued the cause for appellant.

Eden F. Brody, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Deputy Attorney General, of counsel; Ms. Brody, on the brief).

The opinion of the court was delivered by

R. B. COLEMAN, J.A.D.

Defendant L.P. appeals the final decision of the Department of Children and Families (the DCF), which adopted in part and modified in part the initial decision rendered by the Administrative Law Judge (ALJ) following a contested hearing. The ALJ found that "the DCF has failed to establish by a preponderance of the credible evidence that L.P. engaged in the sexual abuse/sexual molestation of A.K. and B.H. as substantiated by the DCF." After reviewing the initial decision, the DCF adopted it regarding A.K., but modified it with regard to the alleged sexual abuse of B.H. Thus, in its final decision, the DCF observed that the ALJ had found that L.P. kissed B.H. face to face for at least five seconds. Without disturbing that finding, the DCF observed further that "a kiss alone could form the basis of a sexual abuse finding."

Reasoning that "a five to seven second kiss on the lips in the context of an adult and child interaction is extremely offensive," the DCF modified the portion of the initial decision finding that sexual abuse of B.H. had not been established. As a result of such modification, the DCF ordered that L.P.'s name remain in the Central Registry, a compilation of child abuse and neglect records. For the reasons set forth below, we reverse the portion of the DCF final decision that determined that the charge of sexual abuse of B.H. by L.P. is substantiated. We therefore remand so that the DCF may order that L.P.'s name be removed from the Central Registry.

The issue arose in the following factual context. L.P.'s wife of forty-five years, J.P., has operated a daycare business out of the couple's family residence for twenty-five years, and throughout this time L.P. has had substantial interaction with the children in his wife's care. L.P. admitted that he and his wife would kiss the children in their care on their mouths, but he described it as a "peck." He denied ever kissing any child with an open mouth and denied French-kissing either B.H. or A.K.

Mr. K., the father of two children for whom J.P. served as a caretaker, testified that sometime in March or April 2005, when he arrived at the P.'s home to pick up his seven-year-old daughter A.K. and younger son, he observed L.P. kissing another little girl, eight-year-old B.H., on the lips for a period which Mr. K. estimated to be five to seven seconds. Mr. K., who had been in law enforcement for seventeen years and who was, at the time of the alleged incident, chief of police in the municipality by which he was employed, indicated he was shocked by what he saw. On his trip home, Mr. K. telephoned his wife and told her of this incident; she became very upset, and the K. family subsequently began using a different child care provider. Mr. K. did not contact the police or any other authority at that time.

On June 21, 2005, approximately two months after this incident, the Division of Youth and Family Services (DYFS), a division of the DCF, received a referral from Mrs. K. alleging that L.P. kisses the children in his wife's care and that he inserts his tongue in their mouths. As the alleged child abuse took place at a daycare facility, DFYS forwarded the case to the Institutional Abuse Investigation Unit (IAIU), which conducted the ensuing investigation. A.K., B.H., and one other child, B.M., were interviewed by various individuals during the investigation and their statements were videotaped on several occasions. A.K. and B.H. raised more extreme accusations against defendant, including accusations that he forced the children to have intercourse, oral sex, and view computer-based pornography. The accounts of those interviews are well-detailed in the final agency decision and do not warrant further discussion herein.

On May 10, 2006, IAIU notified L.P. and J.P. by letter that it found substantiated the allegations of abuse against L.P. with regard to minors A.K. and B.H., and that it found substantiated as to J.P. the failure to properly supervise. L.P. and J.P. filed timely requests for hearings. Hearings on the contested case were scheduled by the Office of Administrative Law. However, prior to the commencement of the hearing, a stipulation of settlement was entered between J.P. and DCF, whereby DCF agreed to modify from "substantiated" to "unfounded" its finding of child abuse against J.P. for failure to properly supervise. The DCF agreed further to remove J.P.'s name from the list of perpetrators of neglect in the child abuse registry. Thus, the hearing proceeded solely as to the claims against L.P.

The ALJ rendered his decision in a comprehensive written opinion issued on August 9, 2007, in which he found that "substantiated abuse" as to A.K. and B.H. by L.P. was not supported by a preponderance of credible evidence in the record. The ALJ therefore recommended that the "substantiated abuse" finding by IAIU be reversed. By orders dated September 26, 2007 and November 8, 2007, the forty-five-day deadline for the final agency decision was ultimately extended to December 22, 2007. L.P. asserts he did not receive a copy of either order extending the deadline nor did he receive requests for such extensions. Thus, on November 26, 2007, defendant wrote to the Director noting that he had received nothing thus far, and asserting that in accordance with law, the ALJ's decision was to be adopted. Defendant received no response to that communication; however, on December 27, 2007, the State forwarded the DCF final decision to L.P. This appeal ensued.

On appeal, defendant first raises procedural irregularities regarding the untimely issuance of extension orders and the agency's failure to provide defendant with notice thereof. We note the adoptive mandate of N.J.S.A. 52:14B-10(c) provides that an agency head shall "adopt, reject or modify" the ALJ's recommended report and decision no later than forty-five days after receipt of such recommendations. Unless the head of the agency modifies or rejects the report within such time-period, the ALJ decision will be deemed adopted as the final decision of the head of the agency. We further note, however, that for good cause shown, the time limits may be extended. Ibid. Moreover, under the mandates of N.J.A.C. 1:1-18.8, requests for extensions may be made up to the day the time period is to expire. L.P. argues the DCF missed the window of opportunity to file a timely request.

The automatic adoption provision in N.J.S.A. 52:14B-10(c) is remedial in nature, designed to curb agency inaction and inattention. The purpose of the imposition of time limits is to expedite the decision-making process and afford the parties a final determination. Infinity Outdoor, Inc. v. Delaware and Raritan Canal Comm'n, 388 N.J. Super. 278, 287 (App. Div. 2006). However, it is well settled that automatic approval or adoption statutes are to be "'applied with caution.'" Id. at 286 (quoting King v. N.J. Racing Comm'n, 103 N.J. 412, 422 (1986)). We will strictly apply statutory time constraints only when they are "anchored in the reason for their existence." Allied Realty v. Borough of Upper Saddle River, 221 N.J. Super. 407, 418 (1988), certif. denied, 110 N.J. 304 (1988). "'The deemed adopted' provision is . . . applicable only when the agency's failure to act constitutes, under the circumstances, gross indifference, inexcusable neglect or bad faith." Klusaritz v. Cape May County, 387 N.J. Super. 305, 314, (App. Div. 2006), certif. denied, 191 N.J. 318 (2007).

Here, although the lack of notice to defendant of the Director's requests for extension orders is worrisome, and statutory compliance pertaining to time periods may not have been accomplished in the strictest sense, we find the procedural delay in the agency's decision was not unduly excessive and did not result in unfair prejudice. Notwithstanding the procedural irregularities, we reject L.P.'s request that the ALJ's initial decision be deemed adopted. Instead, we will address the merits of the appeal.

We note that N.J.S.A. 52:14B-10(c) imposes limitations on an agency head's rejection of an ALJ's credibility determinations. It provides:

The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.

Indeed, in this case, the Director recognized she was bound by the ALJ's credibility determinations. She differed, however, with the ALJ's conclusion based upon his credibility assessments.

We also are limited in the scope of our review. We afford substantial deference to the credibility determinations made by the trier of fact, here, the ALJ. State v. Locurto, 157 N.J. 463, 474 (1999). We defer because such credibility findings "'are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (internal quotations omitted) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Accordingly, "we will not upset the ultimate determination of an agency unless shown that the decision was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the act that governs the agency," or that the findings on which the decision is based are not supported by the evidence. Infinity Outdoor, supra, 388 N.J. Super. at 288-89 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Ultimately, however, interpretation of statutes is a judicial, not administrative, function and we are in no manner bound by the agency's interpretation. Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

In its decision to modify the ALJ's determination that sexual abuse had not been established by a preponderance of the credible evidence, the DCF observes that "a kiss alone could form the basis of a sexual abuse finding," and observes further that "[a] five to seven second kiss on the lips in the context of an adult and child interaction is extremely offensive." Our analysis focuses on the statutory definition of child sexual abuse, not a visceral reaction. The applicable statute, N.J.S.A. 9:6-8.84, defines child sexual abuse as follows:

"Sexual abuse" means contacts or actions between a child and a parent or caretaker for the purpose of sexual stimulation of either that person or another person. Sexual abuse includes:

a. 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;
 
b. sexual conduct including molestation, prostitution, other forms of sexual exploitation of children or incest; or
 
c. sexual penetration and sexual contact as defined in [N.J.S.A.] 2C:14-1 and a prohibited sexual act as defined in [N.J.S.A.] 2C:24-4.

[(Emphasis added); see also N.J.A.C. 10:133-1.3.]

In turn, N.J.S.A. 2C:14-1(d) defines "sexual contact" as

an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present.

[(Emphasis added).]

The Criminal Code identifies the "intimate parts," which are referenced in the statutory provision quoted above. "Intimate parts" means "sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person." N.J.S.A. 2C:14-1(e).

N.J.S.A. 2C:24-4, which is also incorporated by reference into N.J.S.A. 9:6-8.84(c), enumerates prohibited sexual acts: sexual intercourse; anal intercourse; masturbation; bestiality; sadism; masochism; fellatio; cunnilingus; and nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or any act of sexual penetration or sexual contact as defined in N.J.S.A. 2C:14-1. Notably, kissing is not listed among the enumerated prohibited acts.

A "kiss" is "a salute or caress with the lips." Webster's Third New International Dictionary 1246 (1993). To kiss is "to touch or press with the lips (as in affection, greeting, reverence)." Ibid. While a kiss may, as the DCF observed, support a finding of sexual abuse, more is required than the kiss itself. A finding of sexual abuse based on a kiss must include a finding that the kiss was for the purpose of sexual stimulation or arousal. N.J.S.A. 9:6-8.84. The ALJ made no finding that L.P. kissed B.H. for sexual stimulation or arousal.

The Director of DCF characterized the kiss as "offensive" and "inappropriate." Hence, it is apparent that the Director inferred a sexual purpose, not from any description of the way the kiss was given, but on the basis of the placement of lips on lips and the estimated duration of five to seven seconds. Assuming the witness's estimate of the duration of the kiss was accurate, an assumption in which we do not place great confidence, the inference of a sexual purpose is still not inescapable. That inference was not drawn by the ALJ who had a feel for the case and who had the benefit of hearing and seeing Mr. K. testify.

Again, we note that sexual contact, as defined in N.J.S.A. 2C:14-1 and as incorporated within the meaning of sexual abuse in N.J.S.A. 9:6-8.84, requires purpose, the purpose to degrade or humiliate the victim or to sexually arouse or sexually gratify the actor.

Although Mr. K., an experienced law enforcement officer, testified he was shocked by what he had witnessed, and though he said he understood he would have had an obligation to report only perceived sexual abuse, he took no action to report the kiss between L.P. and B.H. to any authority. He immediately told his wife what he had seen, and it was she who made the referral to DYFS, two months later.

The Director acknowledged her obligation to defer to the ALJ's credibility determinations. She nevertheless concluded that a five- to seven-second closed-lip contact "lent itself to a highly sexualized and inappropriate interaction." She found, therefore, that this act constituted sexual abuse under N.J.S.A. 9:6-8.21(c)(3). We disagree.

We are not bound by that interpretation, and we reject the Director's conclusion that a kiss alone constitutes a basis for a finding of child abuse. To assist in achieving its stated purpose, latitude must be given to an agency enforcing its enabling statutes. On the other hand, permitting an overly broad interpretation of the child abuse statutes would render our jurisprudence vulnerable to an overly subjective application. We are mindful that the overarching goal of the statutes is to protect the most vulnerable members of our society from pedophilic predators. However, wholly subjective standards may not be employed to achieve that goal. Our careful review of the record leads us to conclude that the proofs as a whole do not support the determination of the Director that L.P. committed an act of child sexual abuse. Specifically, a closed-lip kiss of a child lasting between five and seven seconds, albeit understandably objectionable to many, does not, without more, fall within the meaning of sexual abuse or molestation in our statutes. A sexual purpose must accompany the act. It must be done to derive or to engender sexual stimulation or arousal or to humiliate or demean the victim. That was not shown in this case.

Reversed and remanded as to the Department's finding of substantiated abuse of B.H.

 

The DCF acknowledges in footnote two of its final decision that, though the Central Registry is confidential, "[t]here are limited circumstances in which employment may be effected [sic] when one's name is associated with a substantiated child abuse or neglect finding." It acknowledges further that "a child abuse or neglect finding would also disqualify an individual from becoming a foster parent for an [unrelated] child . . ." and such a "finding could impact on one's ability to become a foster parent for a child with whom [one] ha[s] a family relation[.]"

These matters were also investigated by the county prosecutor's office, but that office found no probable cause to pursue criminal charges.

N.J.S.A. 9:6-8.21(c)(3) provides, in pertinent part, that "'[a]bused or neglected child' means a child less than 18 years of age whose parent or guardian, as herein defined, . . . (3) commits or allows to be committed an act of sexual abuse against the child[.]" "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).

(continued)

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A-2626-07T1

RECORD IMPOUNDED

January 25, 2010