NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES v. T.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0877-10T3

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT,

Petitioner-Respondent,

v.

T.W.,

Respondent-Appellant.

_______________________________

October 31, 2011

Submitted October 18, 2011 - Decided

Before Judges Payne and Simonelli.

On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 09-0891.

Law Offices of Mark J. Molz, attorney for appellant (Justin Van Dyke, on the brief).

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

PER CURIAM

Appellant T.W. appeals from the final determination of the Deputy Commissioner of respondent Department of Children and Families (DCF) that found sufficient grounds to substantiate allegations of abuse against T.W. involving D.L., a fifteen-year-old resident of Vision Quest, a residential home for troubled youth. We affirm.

We derive the following facts from the record developed at a hearing before an Administrative Law Judge (ALJ).

T.W. and D.L. were involved in an incident on April 15, 2009, that resulted in a head injury to D.L. According to T.W., D.L. was listening to music on a laptop, which D.L. was not permitted to use. T.W. took the laptop from D.L. and gave it to another resident. D.L. gave T.W. "this very intimidat[ing] look" and "probably said something under his breath[.]" T.W. told D.L., "there's no reason you have to look at me like that." D.L. was sitting at T.W.'s desk when this exchange occurred. It was time for T.W. to hand out to the residents the snacks that were in his desk drawer, which D.L. was blocking. T.W. asked D.L. about eight or nine times to move, but D.L. started looking at him again "with the same [intimidating] look as before." After T.W.'s last request, D.L. "moved the chair a little," which enabled T.W. to get the snacks from the desk drawer and give them to the residents.

When D.L. moved the chair, T.W. noticed that D.L. was sitting on T.W.'s jacket. T.W. asked D.L. about eight to ten times to get off his jacket. T.W. knew at the time that D.L. was "aggravated because [he] asked [D.L.] to give [him] the laptop." D.L. sat there looking at T.W. "with a hard look," did not move, and was "saying little things under his breath." In a written statement that T.W. made approximately one-half hour after the incident, he said that he then "used touch control [by] placing [his] hand on [D.L.'s] shoulder and tapped him on his shoulder" and asked D.L. to "please get off [his] jacket." However, D.L. continued sitting on the jacket. T.W. then "[inadvertently] extended [his] arm on [D.L.'s] shoulder and removed [D.L.] out [of] the chair." T.W. testified that D.L. jumped up and tried to throw a punch but T.W. grabbed his arms. The two struggled, and D.L.'s elbow "glazed" T.W.'s face, causing them to fall to the floor. On the way down, D.L. hit his head on the corner of a table, sustaining a head injury. T.W. then called a "Code Blue."1 T.W. admitted that D.L. showed aggression after he had "forced" D.L. out of the chair. T.W. described D.L.'s head injury as "a scratch." However, D.L. received three staples at the hospital to close the wound to his head.

D.L. signed a grievance form the day after the incident, which the ALJ admitted into evidence subject to corroboration because D.L. did not testify at the hearing.2 D.L. reported that T.W. "grabbed him by the shirt and slammed him to the ground." He got up and T.W. "grabbed him in a bear hug like maneuver and slammed him to the ground again." T.W. called a "Code Blue" after D.L. hit his head.

An investigator from the Institutional Abuse Investigational Unit (IAIU) investigated the matter and issued an investigation report, which contained narratives of her interviews with T.W., D.L., and several residents and a Vision Quest employee, all of whom had witnessed the incident. The ALJ admitted the report into evidence as a business record, finding it was made in the regular course of DCF's business. T.W. does not challenge this ruling on appeal.

The witnesses' reports of the incident were essentially consistent with T.W.'s version, except they said that T.W. picked D.L. up from the chair by his shirt, D.L. jumped up and balled his fists, and T.W. then grabbed D.L. by his waist, lifted him up, and "slammed" him to the floor. The Vision Quest employee said that he heard T.W. tell D.L., "if you don't get up [off the chair], I'm going to make you get up." When D.L. did not comply, T.W. "grabbed [D.L.] and pulled him up." All witnesses confirmed that T.W. called a "Code Blue" after D.L. was injured.

Kevin Noble, a Vision Quest employee and "safe crisis management" trainer, testified that T.W. received safe crisis management training. Pursuant to the Vision Quest Operating Procedure, the first level of intervention is observation and verbal intervention or redirection of behavior. If the situation escalates to something that may harm the youth or staff, staff should call a "Code Blue," which alerts other staff members to respond to the situation. As a last resort, the use of physical intervention is permitted, but only if there is a safety risk.

Conjouri Martin, a Vision Quest employee and T.W.'s expert, testified that, based on T.W.'s version of the incident, T.W.'s actions complied with the Operating Procedures. However, Martin admitted that although it is appropriate to use "touch control" to direct a resident, it is inappropriate to physically remove a resident from a chair in the manner in which T.W. was alleged to have removed D.L.

The ALJ found that T.W.'s written statement that he "removed [D.L.] out of the chair" refuted his testimony that he only used "touch control" on D.L. She also found that the witness statements to the IAIU investigator were "uniform in the observation that T.W. exerted more force than a 'touch control' in removing D.L. from the staff chair." Accordingly, she found that "T.W.'s use of force in removing D.L. from the chair was excessive and escalated the situation with D.L., leading to the unintended struggle and injury." She concluded that DCF met its burden of proving that T.W. abused D.L. pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), affirmed the finding of abuse, and ordered that T.W.'s name and all identifying information remain in the Central Registry of the Division of Youth and Family Services pursuant to N.J.S.A. 9:6-8.11. The Deputy Commissioner adopted the ALJ's decision. This appeal followed.

On appeal, T.W. contends that because the ALJ erred in finding that D.L.'s grievance form was more credible than T.W.'s sworn testimony, which was supported by expert testimony, the record does not support her finding that T.W. used excessive force in removing D.L. from the chair, thereby escalating the situation. We disagree.

"[W]e are bound to uphold an agency's decision 'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Our function is not to merely rubberstamp an agency's decision, rather, our function is "to engage in 'a careful and principled consideration of the agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence 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." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). It is not for the court or the agency to disturb an ALJ's credibility determination if the record as a whole supports it. N.J.S.A. 52:14B-10(c); In re Snellbaker, 414 N.J. Super. 26, 36 (App. Div. 2010).

The ALJ properly found that D.L.'s statements in the grievance form were credible. The form was properly admitted into evidence pursuant to N.J.S.A. 9:6-8.46(a)(4), and it was sufficiently corroborated not only by the eyewitnesses' statements to the IAIU investigator, which T.W. does not challenge on appeal, but by T.W.'s written statement that he "[inadvertently' extended [his] arm on [D.L.'s] shoulder and removed D.L. out of the chair," and his testimony that he "forced" D.L. out of the chair. See N.J.A.C. 1:1-15.5(b); DeBartolomeis v. Bd. of Review, 341 N.J. Super. 80, 85 (App. Div. 2001). Clearly, T.W.'s own words prove that he used more force than "touch control" in this case.

The ALJ also properly admitted and relied on the conclusion in the IAIU investigator's report that T.W. abused D.L. N.J.S.A. 9:6-8.46(a)(3) provides as follows, in part:

any writing, record . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of . . . any public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any . . . public or private institution or agency, and that it was in the regular course of such business to make it, at the time the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification. (Emphasis added.)

See also R. 5:12-4(d) ("[DYFS] shall be permitted to submit into evidence, pursuant to [N.J.R.E.] 803(c)(6) and 801(d), reports by staff personnel . . . . Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.") Accordingly, the IAIU's conclusion in her report is prima facie evidence of abuse by T.W.

Further, the record supports the ALJ's conclusion that T.W. abused D.L. through the use of excessive force. An "abused or neglected child" is defined, in part, as a child less than eighteen years old

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, . . . 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; 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)(4)(b).]

Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court held that mere negligence does not trigger the statute. T.B., supra, 207 N.J. at 306-07; see also G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). Rather, the failure to exercise a minimum degree of care refers "'to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 177-78). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306.

Grossly negligent conduct requires "'an indifference to consequences.'" Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (quoting State v. Gooze, 14 N.J. Super. 277, 282 (App. Div. 1951)). Recklessness occurs when the actor "intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences." Schick v. Ferolito, 167 N.J. 7, 19 (2001) (citing Prosser & Keeton on the Law of Torts, 34 at 212 (5th ed. 1984)). The Court observed,

The standard [for reckless conduct] is objective and may be proven by showing that [the actor] proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position. Reckless conduct is an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent. Reckless behavior must be more than any mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention . . . . Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others. Negligence may consist of an intentional act done with knowledge that it creates a risk of danger to others, but recklessness requires a substantially higher risk. The quantum of risk is the important factor.

[Id. at 19-20 (citations and internal quotation marks omitted).]

A determination of whether a parent's or guardian's conduct "is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309. "The cases are fact-sensitive." Ibid. Whether a parent or guardian acted recklessly "must be evaluated in context based on the [dangers and] risks posed by the situation." Ibid.

We are satisfied that the record as a whole shows that T.W. acted recklessly in this case. T.W. worked with troubled youth at Vision Quest. On the day of the incident, he knew that D.L. was upset at having the laptop taken away by T.W., and that D.L. was defiant and failed to respond to T.W.'s numerous verbal interventions. T.W. had been trained in safe crisis management, and thus, knew that physical intervention was the last resort, and only when there was a safety risk, which was not present here. T.W. did not call a "Code Blue" before D.L.'s injury, and even if he had done so, he did not wait for other staff to respond to help de-escalate the situation. Instead, he inappropriately used excessive physical intervention, which further escalated the situation and resulted in the injury to D.L. T.W., thus, failed to exercise a minimum degree of care by unreasonably inflicting harm on D.L. through the use of excessive force.

1 According to Vision Quest's Operating Procedure for safe crisis management, de-escalation and manual restraint techniques, which was admitted into evidence without objection, a "Code Blue" is utilized when a resident displays signs of escalating behavior to summon available staff to help de-escalate the resident and avoid the use of manual restraint.

2 See N.J.S.A. 9:6-8.46(a)(4) ("previous statements made by the child relating to any allegation of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect"); see also Div. of Youth & Family Servs. v. S.S., 185 N.J. Super. 3, 7-8 (App. Div. 1982).