NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES INSTITUTIONAL ABUSE INVESTIGATION UNIT - v. W.G.

RECORD IMPOUNDED


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5894-08T1



NEW JERSEY DEPARTMENT OF

CHILDREN AND FAMILIES,

INSTITUTIONAL ABUSE

INVESTIGATION UNIT,


Petitioner-Respondent,


v.


W.G.,


Respondent-Appellant.

_________________________________

September 30, 2011


Argued September 29, 2010 - Decided


Before Judges Fisher, Sapp-Peterson and Simonelli.


On appeal from the New Jersey Department of Children and Families, AHU #07-241.


Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, L.L.C., attorneys; Mr. Loughry, on the brief).


Eden F. Feld, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Feld, on the brief).


PER CURIAM

Respondent W.G., a middle school assistant principal, appeals from the final decision of the Executive Director of Community Services, Department of Children and Families (DCF), finding that he abused or neglected a student, A.L., within the definition of N.J.S.A. 9:6-8.21(c)(1), (2), (4)(b) and (6). We reverse.

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

At the time of the incident that gave rise to the DCF's involvement in this case, W.G. had been employed as a teacher or assistant principal for over thirty years and was the assistant principal of the middle school A.L. attended for four years. A.L. was an eleven-year-old sixth-grade student who was classified as emotionally disturbed and placed in a self-contained classroom for students with behavioral disabilities.

On November 7, 2006, A.L. refused to complete an assignment from his teacher. He left his chair, walked around the classroom, crawled under tables, and struck the classroom telephone trying to damage it. His teacher called security to remove A.L. from the classroom. When the security guard arrived, he saw A.L. hit the telephone and knock the receiver to the floor. He removed A.L. and escorted him to W.G.'s office.

When A.L. arrived at W.G.'s office, he sat down in a chair and did not say anything. He then left the chair and ran out of the office. W.G. stopped him and returned him to the office. A.L. sat down but then got up from the chair, again ran out of the office, went to his locker, and collected his belongings to go home. W.G. called A.L.'s social worker, the special education guidance counselor and the school psychologist for assistance, but could not "get a hold of" them. He also called security and A.L.'s mother.

The security guard subsequently found A.L. by his locker and escorted him back to W.G.'s office. A.L. ignored W.G.'s request to sit down and again attempted to leave the office, but the security guard stopped him. A.L. sat down briefly, then got up and went into a corner by a large plate glass window and a narrow credenza with a large television located on the edge. A.L. struck the blinds covering the plate glass window and kicked the wall. Based on W.G.'s past experience with another emotionally disturbed student, who without provocation had "slammed his head against the wall," he feared that A.L. would do something similar. According to W.G., he tried to "guide" A.L. away from the television and plate glass window into a chair he had pulled out for A.L. A.L. testified that W.G. and the security guard tried to force him to sit by pushing his arms to get him in the chair.

A.L. refused to sit in the chair and started kicking a recycling bin against another desk in the office that had a printer, fax and copy machine on it, making the desk shake. W.G. got behind A.L. and tried to guide him into a chair. W.G. testified that at that point, it was "like a switch went off." A.L. lunged back into W.G., kicked W.G. with his right foot several times on W.G.'s right shin, and began "cursing and threatening, and flailing about[.]" W.G. put his left arm across A.L.'s left shoulder and chest, which W.G. referred to as a "choke hold." A.L. struggled, yelled and screamed, and tried to break free. Based on W.G.'s past experience with yet another emotionally disturbed student, who had dashed out of the school and into the street, he continued restraining A.L., fearing the child might do the same.

During the struggle, W.G. began falling backwards and "was trying desperately not to fall." At that point, W.G. heard A.L. say, "You're choking me." A.L. claimed he could not breathe for about five seconds. W.G. regained his balance; however, he was losing physical control of A.L. and could no longer hold him. As he and the security guard tried to get A.L. down to the floor, A.L. landed on his hands.

W.G. straddled A.L.'s back. A.L. then started "kicking even more[,]" so the security guard held his legs. A.L. fought, tried to hit W.G. with his right arm, tried to get up, thrashed back and forth, moved his head from side to side, and lifted his chest upwards. W.G.'s body made contact with A.L.'s back whenever A.L. tried to arch up or move. A.L. testified that W.G. sat on his back during the struggle.

W.G. instructed his secretary to call the police, the principal, and the school nurse. He and the security guard restrained A.L. on the floor for approximately seven to ten minutes until the police arrived. During the incident, A.L. said to W.G., "White M.F.'er, I'm going to F' you up, I'm going to get your wife, let me go see what I do."1 A.L. also said, "my mom's going to sue the school."

The security guard believed that A.L. was a danger to himself and "anybody else around him at the time." He testified that he received no training in restraining a violent or combative student, such as A.L., but believed that the restraints he and W.G. used were necessary under the circumstances.

The school secretary witnessed the incident. She feared that A.L. was going to knock the television over or hurt himself. She also heard A.L.'s constant verbal threats to W.G. and heard W.G. tell A.L. to stop kicking him. When A.L. was on the floor, she saw him "moving his head back and forth fighting and still struggling." A.L. appeared to have no trouble breathing, was constantly speaking, and used profanity.

The school nurse arrived at W.G.'s office and saw W.G. straddling A.L. When she tried to calm A.L. down, he spit at her. She heard A.L. screaming obscenities "at the top of his lungs," and screaming constantly "with only an interruption for him to take a breath[.]" She observed that A.L.'s coloring was good and he was moving his upper torso the entire time she was there. A.L. was able to arch up off the floor, move from side to side and "occasionally take his right elbow and try to bring it back to hit [W.G.]" The nurse "was completely unable to calm [A.L.] down" during the time she was there. He was speaking almost throughout the entire episode and making threats to W.G. The nurse did not see W.G. do anything that caused her any alarm that A.L. would be physically harmed. Shortly after the incident, she examined W.G. and saw two or three fresh small abrasions on his shin, which were consistent with his having been kicked there.

The principal arrived at W.G.'s office and saw W.G. and the security guard restraining A.L. on the floor. A.L. was yelling, using profanity, flailing his head, and said something derogatory like, "You white . . . F'ing people." The principal instructed W.G. to continue restraining A.L. until the police arrived. He found nothing wrong, dangerous or improper with the way W.G. and the security guard were restraining A.L. and believed "they were just doing what they had to do to restrain [A.L.] to protect everyone in the room including [A.L.]." The principal observed no signs of injury on A.L.'s body, including his neck.

A police officer arrived and saw A.L. restrained on the floor. A.L. was kicking, flailing his arms, moving his head to the left and right, arching his back, trying to force his way off the floor, and yelling "assorted profanities," including the "F word." When W.G. released A.L., A.L. tried to get up, so the officer put him back down on the floor. A.L. ignored the officer's request to calm down, and swung his arms and tried to break free. The officer then put his knee on A.L.'s back, grabbed A.L.'s arms and handcuffed him "for his safety and for the safety of everybody else in the room." After he was handcuffed on the floor, A.L. continued screaming, cursing, thrashing from side to side and arching his back. When the officer brought A.L. to his feet, he noticed what appeared to be rug burn on A.L.'s face and arms but no other injury. He called for medical assistance.

When an emergency medical technician (EMT) arrived, A.L.'s mother, who had arrived soon after the police officer, advised the EMT that A.L. was fine, and there was nothing wrong with him, and that he was not injured. The EMT was able to observe A.L. He left the school because no one requested treatment. He would have rendered care if someone were injured.

After the incident, A.L's mother was informed that criminal charges may be filed against her son for assaulting W.G. She responded, "well, I want criminal charges brought up on [W.G.] also." She retained an attorney, contacted the prosecutor's office and the Division of Youth and Family Services (DYFS), and filed a civil complaint seeking compensatory and punitive damages.

A.L. testified that he injured his elbow when W.G. threw him to the floor, and had pain in his neck and back after the incident. However, he indicated in his initial statement to an investigator from the Prosecutor's office that he was not injured when placed on the floor. A.L.'s mother claimed that on the day of the incident she saw bruising on her son's face, neck, ears, arms, and chest, and his lips were swollen. Despite A.L.'s alleged injuries, his mother did not seek any medical treatment for him. Instead, she took pictures of the injuries that day and the day after and gave them to DCF.

Twenty days after the incident, Marita Lind, M.D., a pediatrician and child abuse and neglect specialist, evaluated A.L. at DCF's request. Based on her review of the photographs, Dr. Lind concluded that at the time the photographs were taken, A.L. had some bruising on his back and chest, and petechiae2 on his face, neck, back, chest and shoulders, which were consistent with A.L.'s claim that W.G. choked and sat on him. W.G.'s expert forensic pathologist, John Adams, M.D., disagreed with Dr. Lind. Dr. Adams reviewed the photographs, reports from the police and school, and concluded that A.L.'s injuries were "a rash of some sort" caused by either rubbing his skin on the rug or "an excitement response, raising [A.L.'s] adrenaline levels[.]"

The ALJ found that A.L. kicked W.G. before W.G. grabbed A.L. around his chest and neck area, and that "W.G. restrained A.L. across his neck and chest in such a way that one could conclude that he had [A.L.] in a chokehold, and A.L. felt pressure such to make him say, 'You're choking me.'" However, the ALJ also found that the choking alone did not constitute abuse because A.L.'s behavior "was harmful to W.G., in that A.L. kicked W.G. causing injury, and it was potentially harmful to property, specifically, the television in the corner of the office." She also concluded that "[u]nder the circumstances presented, W.G.'s physical restraint of A.L. by placing his arm around A.L. in his chest and neck area, which inadvertently choked A.L. very briefly, was not excessive and did not constitute abuse." The ALJ commented that even "[i]f W.G. used excessive restraint by choking A.L. when the circumstances did not call for such restraint," the security guard watched and "did nothing" despite having "been trained in the proper use of restraints[.]"

The ALJ found that W.G. briefly placed his weight on A.L. when he straddled A.L. In her later findings, however, she was ambiguous as to whether the bulk of W.G.'s weight was on his own knees or A.L.'s back. She also found that "the marks on A.L.'s face, neck and chest were petechiae caused by a combination of being briefly choked[,] compressed on his back, and yelling and screaming at the same time . . . ." However, she found "no evidence that W.G. lost his composure and acted out of anger or retaliation[,]" and he was "[a]t all times . . . trying to control A.L. and keep him from hurting him, anyone else or the property in his office." The ALJ concluded that pursuant to N.J.A.C. 10:133-1.3, under the circumstances of A.L.'s harmful behavior, W.G.'s conduct was reasonable to prevent injury to others and property. She reversed and dismissed the charge against W.G., and ordered that his name and all identifying information be removed from DYFS's Central Registry.

The Director rejected the ALJ's decision, and concluded that W.G. abused or neglected A.L. within the meaning of N.J.S.A. 9:6-8.21(c)(1), (2), (4)(b) and (6). This appeal followed.

Our role in reviewing the decision of an administrative agency is limited. In re Anthony Stallworth, ___ N.J. ___ (2011) (slip op. at 13). We will not reverse an agency's decision unless it is "'arbitrary, capricious, or unreasonable, or[] not supported by substantial credible evidence in the record as a whole.'" Id. at 14 (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). However, "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, we must "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. in Div. of Consumer Affairs of the Dep't of Law & Pub. Safety, 64 N.J. 85, 93 (1973)).

We also defer to an agency's interpretation of statutes and regulations within its implementing and enforcing responsibility. Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (alteration omitted) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Nonetheless, that deference is tempered by the well-established principle that an agency's legal interpretation is in no way binding on us." Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 509 (App. Div.) (citing In re Carter, 191 N.J. 474, 483 (2007)), certif. granted, 204 N.J. 40 (2010); see also G.S. v. Dep't. of Human Servs., 157 N.J. 161, 170 (1999).

Additionally, where an agency head rejects a recommendation of an ALJ, the basis for rejection must be set forth with particularity and new or modified findings must be supported by sufficient, competent, and credible evidence in the record. N.J.S.A. 52:14B-10(c).

Here, W.G. primarily challenges the Director's interpretation of N.J.S.A. 9:6-8.21(c)(1), (2), (4)(b) and (6) to conclude that he committed an act of excessive restraint rendering A.L. an abused or neglected child.

An "abused or neglected child" means, in part, a child under the age of eighteen whose parent or guardian

(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; . . . (6) or a child upon whom excessive physical restraint has been used under circumstances which do not indicate that the child's behavior is harmful to himself, others or property . . . .


[N.J.S.A. 9:6-8:21(c)(1)-(2), (6) (emphasis added).]


The Director concluded that W.G.'s conduct constituted abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(1) and (2) because "[W.G.] inflicted upon [A.L.] a physical injury which placed [A.L.] at a 'substantial risk of death . . . or protracted impairment of physical or emotional health or protracted loss of impairment of the function of any bodily organ.'"

The Director concluded that W.G.'s conduct also constituted abuse or neglect under N.J.S.A. 9:6-8:21(c)(6). The Director found that A.L. kicked W.G. only after being restrained, there was no evidence that A.L. attempted to damage the television, and the statute does not apply to "potential" harms.

We do not condone the use of excessive restraints on any child. However, the record does not support the Director's conclusion that W.G. employed excessive restraints that constituted abuse or neglect pursuant to N.J.S.A. 9:6-8:21(c)(1) and (2). To the contrary, the record reveals that W.G. accidentally injured A.L. when he fell backwards after A.L. kicked and violently struggled with him, and when A.L. violently struggled with him and the security guard while on the floor. As such, the record demonstrates that A.L.'s injuries were causally related to his conduct.

The record does not support the Director's conclusion that W.G.'s conduct constituted abuse or neglect pursuant to N.J.S.A. 9:6-8:21(c)(6). As the ALJ correctly found, A.L. kicked W.G. before W.G. restrained him, causing injury to W.G. Thus, A.L.'s behavior was, in fact, harmful to W.G.

Further, we reject the Director's conclusion that N.J.S.A. 9:6-8.21(c)(6) does not apply to potential harms. A parent or guardian faced with a violent, combative and out-of-control child, such as A.L., should not have to wait until the child actually harms himself, others or property before applying restraints. By that time, it is too late and the damage has been done. A parent or guardian must be permitted to use appropriate restraints where, such as here, the circumstances indicate they are necessary.

The Director also concluded that W.G.'s conduct constituted abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(b) because A.L.'s "physical condition was impaired as the result of W.G.'s failure to exercise a minimum degree of care by unreasonably inflicting harm upon [A.L.] by administering an unnecessarily dangerous means of restraint." She found that W.G. "escalated the situation" and chose to restrain A.L. in a choke hold instead of employing less restrictive means, such as "simply allow[ing] [A.L.] to stand rather than force him into a chair," or deferring to the security guard, who was "trained in restraint, [and] could have interceded in a more appropriate, less harmful manner . . . ."

N.J.S.A. 9:6-8.21(c)(4)(b) defines "abused or neglected child" as one

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. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B. ___ N.J. ___, ___ (2011) (slip op. at 18); see also G.S., supra, 157 N.J. at 177. 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, slip op. at 16 (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." T.B., supra, slip op. at 17.

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 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, slip op. at 21. "The cases are fact-sensitive." Id. at 22. Here, the Director did not find, nor does the record suggest, that W.G. was grossly negligent. Thus, in evaluating the Director's conclusion that W.G.'s conduct constituted abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), we focus on whether W.G.'s conduct was reckless. Whether a person acted recklessly in restraining a child "must be evaluated in context based on the [dangers and] risks posed by the situation." T.B., supra, slip op. at 22.

The record does not support the Director's conclusion that W.G.'s conduct constituted abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). To suggest that W.G. should have employed less restrictive means, such as simply allowing A.L. to stand instead of having him sit, or defer to the security guard, is contrary to the evidence in this case. Prior to being restrained, A.L. twice ran from W.G.'s office, attempted to run a third time, assaulted W.G., and attempted to damage school property. Also, the security guard had no training in restraining violent or combative students, such as A.L.

We are satisfied that W.G. did not act recklessly in restraining A.L. under the totality of circumstances in this case. He acted appropriately under circumstances that presented significant dangers and risks to all involved.

R

eversed. W.G.'s name and all identifying information shall be removed from the Central Registry.

1 A.L. is African-American and W.G. is Caucasian. W.G.'s wife was a teacher in the same middle school.

2 According to Dr. Lind, petechiae "represents ruptured blood vessels underneath the skin."