DIVISION OF YOUTH AND FAMILY SERVICES v. O.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4098-05T24098-05T2

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

O.D.,

Defendant-Appellant.

____________________________________________________________

 

Submitted April 17, 2007 - Decided September 4, 2007

Before Judges Kestin and Graves.

On appeal from a Final Agency Decision

of the Department of Human Services,

OAL Docket No. HDY0991-04, AHU Case No.

03-154.

August J. Landi, attorney for appellant.

Stuart Rabner, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Lisa Landsman,

Deputy Attorney General, on the brief).

PER CURIAM

On December 23, 1998, the Division of Youth and Family Services (DYFS or the Division) notified appellant, O.D., by letter that the Division had investigated a report that O.D. physically abused her ten-year-old daughter D.D. (fictitiously, Diane), on November 20, 1998. The letter further advised the "Division's investigation determined that child abuse was substantiated," and, pursuant to N.J.S.A. 9:6-8.11, O.D.'s name and identifying information had been placed in the Central Registry of persons who have committed acts of child abuse or neglect. O.D. disputed the Division's determination, and the matter was ultimately transmitted to the Office of Administrative Law as a contested case. Following a hearing, the Administrative Law Judge (ALJ) concluded that O.D. had not committed an act of child abuse under N.J.S.A. 9:6-8.21, and her name should not have been placed in the Central Registry. However, the final decision by the New Jersey Department of Human Services, Office of Children's Services, concluded that O.D.'s name would remain "in the Central Registry for substantiated child abuse." We reverse.

For reasons that are not set forth in the record, the administrative hearing before the ALJ did not take place until June 27, 2005--more than six years after the incident had occurred. At the hearing, Officer D'Amico, a member of the Neptune Township Police Department, testified that on November 20, 1998, at approximately 1:31 p.m., he responded to a 9-1-1 call from "a hysterical female" who claimed "she was being beaten by her mother." Upon arriving at O.D.'s residence, D'Amico spoke with Diane, who was crying and upset. Diane told him her mother hit her first with a plastic clothes hanger and then with an extension cord after her mother found her "sneaking through" her mother's pocketbook. Officer D'Amico observed welts on Diane's "left upper arm, which were the result of being struck by one of the objects," but he did not observe any serious injuries:

THE COURT: Do you recall anything about the child requiring any medical attention?

THE WITNESS: She required no medical attention.

THE COURT: Was the skin broken?

THE WITNESS: No, not at all.

BY MS. CASSAR [ATTORNEY FOR DYFS]:

Q. In your report, you indicate that the victim advised that her mother beat her on the legs, arms, chest and head area. You've testified to observing welt markings on the left arm. Okay. Did you observe any markings on the legs, . . . chest and head area?

A. No, not at all.

When Diane, who was seventeen years old at the time of the hearing, was asked about the "marks" on her arm, she testified "[t]here never were any scars. I did have, I think, one or two welts on my arm, but it went down that day." According to Diane, her mother usually punished her by telling her she could not do the things she liked to do "like go outside and stuff like that." Diane also explained "just talking" with her mother was usually "enough" because when she did something wrong, she knew she hurt her mother as well as herself. She also recognized stealing "can grow to be a problem as you get older. If your parents see that as no big deal when you're little, then, maybe when you get older, you'll see it as no big deal. So, that is a problem."

When Diane was asked if there was anything she wanted to "say about that day," she testified:

I regret ever calling the police, because . . . I feel that I was being dramatic about it, because it wasn't really that serious of a deal to me. When you do something wrong, I think that if your parents love you, they'll discipline you for it, and I think my mom loves me a lot. So, when you do something wrong, you get disciplined for it. So, I got disciplined for it, just as if I would go into a store and steal something, I would get arrested or something. That's a part of discipline. So, I feel why should it be a problem if my mother disciplines me. I think it's an act of love.

O.D. testified she had a serious medical problem, involving a stomach tumor, at the time of the incident:

I just kept living with it, and it kept growing and it kept growing. And I bled all the time, and I was tired all the time. And I just always would tell them everything in case I'm not here, that everything they had to know, they had to know because I didn't think I was going to be around, and I didn't want my daughter to think that she could steal. That's the worst, lying and stealing are the two . . . worst things.

I jumped up. If it took five minutes from the time that I hit her with a hanger, threw it across the room, and couldn't find my belt. I did hunt for my belt. That's the first thing I looked for. I was over by the closet. She was right. And I couldn't find it, because I can never find it, because my kids hide the belts, because it's a running joke. They know I can't find the belt, and by the time I find the belt, I'm going to probably forget about it. So, you know, [there are] a half a dozen belts missing around that house. If I'm such a tyrant, why would they hide the belts? You wouldn't touch a police officer's gun. Why would you do that? That's the weapon in the house. And I don't mean that in a bad way, but that's . . . like the ruler.

And so this . . . occasion when I really, really did need it because she did something that she's got to know before I go that she can't do that. She can't do that. So, I hit her with the hanger, and it broke. I think it broke when I tried to hold it more than it hit her when I hit her, because it kind of cracked when I did like this, because it's plastic. So, I threw that. And then, I just hit her a couple of times, and because of the awkwardness of the extension cord, because it might have been about eight feet and by the time I pulled whatever was plugged to it and just got a grip on it, it just went really just all over the place. So, I think maybe two or three times I hit her, just swung at her with that wildly, and she's not standing there letting me do this, you know.

So, I threw that down, and because of my condition, I bled a lot. And I had urinary frequency sometimes. So, I had to go to the bathroom, and I ran downstairs to go to the bathroom. And in that time that I was in the bathroom, she called the police. And what could I do? There's nothing I could do now. And I said, "Well, D., you called them. You got to deal with this." . . . They have to learn. So, I let her. I said "D., this is on you." And so, I sat there, and I let him talk to her. And that was all I could do.

So, he . . . asked her did she hurt anywhere, and she said "Yeah, my arm." And then, she rolled up he[r] sleeve, and then, that was the end of it.

THE COURT: Did you see any marks?

THE WITNESS: Yeah, there was a welt here.

THE COURT: A welt?

THE WITNESS: A couple welts. I'm sorry.

The stated purpose of Title 9 is:

[t]o provide for the protection of children under 18 years of age who have had serious injury inflicted upon them. . . . The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

[N.J.S.A. 9:6-8.8(a).]

An "abused or neglected child" is defined as:

[A] child less than 18 years of age 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; . . . (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 . . . (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)(emphasis added).]

As the ALJ correctly noted: "New Jersey law prohibits a parent from unreasonably inflicting excessive corporal punishment. The issue here is where does permissible corporal punishment end, and child abuse or excessive corporal punishment begin?" The ALJ also recognized, although "there is no bright line answer, it is clear that a Title 9 inquiry must focus on the circumstances leading up to the injury and on the harm to the child," and not O.D.'s mental state. See G.S. v. Dept. of Human Servs., 157 N.J. 161, 177 (1999) ("Title 9's primary concern is the protection of children, not the culpability of parental conduct.").

In a comprehensive, twenty-three page written decision dated September 15, 2005, the ALJ concluded, under the totality of the circumstances, Diane was not a victim of abuse because "O.D. administered 'acceptable' corporal punishment under the laws of the State of New Jersey." The judge's decision included the following:

On the date in question, O.D. discovered her then 10-year old daughter had stolen money from her pocketbook. O.D. had concerns regarding her youngest daughter's stealing and expressed a fear of adverse outside influences from the community in which the family resided. O.D. admitted having "beaten" her then 10-year old daughter, D.D., with a plastic coat hanger and, when it broke, an 8-10' extension cord because she had stolen money.

O.D. did not attempt any progressive discipline before looking for a belt. When she was unable to find a belt, she picked up a plastic hanger. O.D. attempted to hit D.D. on her shoulder with the hanger, but D.D. turned causing the blow to presumably land on her head (there being no independent evidence offered and despite the acknowledgment by patrolman D'Amico that there was no evidence of any marks in that area) and the hanger broke. D.D. did not sustain any facial bruising or head wound. O.D. then picked up an extension cord, which was difficult to control and continued to aim for the lower body of D.D. while holding D.D.'s arm since D.D. was trying to get away from her. The incident lasted 5 minutes. D.D. sustained two loop shaped welts and presumably three linear welts on her left arm, although it is noted that any photographic evidence to even support those claims has been lost. D.D. did not sustain any permanent markings. O.D., while admitting to using instruments to punish her daughter for stealing, testified under oath that she was not trying to hurt D.D. The child was frightened at the reaction of her mother, and telephoned "911" which began the investigation of this matter.

It is also noted that at the hearing, D.D. demonstrated no evidence of physical, mental or emotional impairment or an imminent danger of becoming so impaired as a result of this incident. Further, she appeared as a very poised and well polished young woman. In fact, the entire intact family appeared at [a] hearing and, a loving, nurturing relationship was observed among all of them. And I so FIND. The family was appropriately attired for the hearing, entirely respectful of the proceedings, and all of the children were thriving. D.D. was completing the high school general curriculum early, while simultaneously pursuing a vocation in cosmetology, which further suggests and corroborates the mother's desire for all of her children to achieve success.

. . . .

Based upon the foregoing, I FIND that the injuries suffered by O.D.'s daughter, who was 10 years old at the time of the act, consisted of welt marks on her arm that have since resolved. . . . These were not serious injuries that were likely to cause death or serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ. Based upon a review of the case law, the evidence in the record does not support a finding that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired.

. . . .

. . . I FIND that there are convincing facts that O.D. is a good parent who believed she was acting in her daughter's best interest, and that she now realizes that her conduct did border on the unlawful and that she is sincerely remorseful. This was an isolated incident and did not involve the infliction of excessive corporal punishment resulting in serious injuries or impairment. Therefore, based on the above, the foregoing facts are insufficient to find that O.D. committed an act of child abuse under N.J.S.A. 9:6-8.21(c). I FIND and CONCLUDE that DYFS did not have "good cause" to make a finding of substantial child abuse under the facts specific to this case. I make all of these findings and form all of these conclusions by a preponderance of [the] credible evidence.

On March 1, 2006, the final agency decision was rendered by the Office of Children's Services (OCS). In that decision, the acting Deputy Commissioner rejected the ALJ's determination and found the facts supported a finding of substantiated child abuse. Consequently, O.D.'s name remains in the Central Registry of substantiated child abusers maintained by DYFS. N.J.S.A. 9:6-8.11.

The final agency decision contains the following findings:

At the outset, I note that there is no dispute that O.D. stuck D.D. with a hanger and an extension cord. Further, and more germane to the analysis, is that O.D. proceeded to strike D.D. with a hanger on her head. When that object broke, O.D. proceeded to look for another weapon to continue the punishment. This break in discipline was the opportune time for O.D. to consider the substantial risk to D.D.'s body. Injury was likely to, and probably would, occur. O.D. testified that she did not use progressive discipline, and despite her first weapon of choice breaking over her young daughter's head, she sought out another weapon and continued to beat her daughter for five minutes.

O.D. failed to exercise a minimum degree of care when she repeatedly struck D.D. in the head area and other parts of her body with two different weapons. O.D.'s use of multiple weapons and excessive amount of force recklessly created risk of serious injury. While one may easily sympathize with a parent's concern for a child who has been caught stealing, such an understandable reaction does not absolve her of culpability for resorting to unjustifiable violence.

However, by sheer luck, O.D. did not cause injuries that were more significant. When O.D.'s attempt to strike D.D. with a hanger about her head caused the hanger to break, rather than stop the discipline, O.D. sought out another instrument. For a full five minutes, O.D. struck D.D. with a hanger and then an extension cord.

. . . .

I also observe from the record (P-2), that the situation was deemed so unsafe by OCS that D.D. stayed with a relative over the weekend to allow all parties time to calm down. In addition, OCS'[s] intervention included an agreement that O.D. attend parenting classes. Such intervention may be the change agent that resulted in the currently family functioning.

While it is admirable six years later the family has been able to remain intact, and D.D. appeared before the ALJ healthy and without any residual effects from the incident, it does not negate the severity of the incident. . . .

Based upon the foregoing, I hereby REJECT the conclusion of the ALJ that O.D. did not cause D.D. to be an abused or neglected child. Conversely, I conclude that O.D.'s actions did directly cause bruising to D.D., that D.D.'s condition was placed at imminent danger of becoming impaired, and that O.D.'s actions were willfully and wanton when she inflicted corporal punishment on D.D. Therefore, I find that the facts of this case support a finding of a substantiated child abuse pursuant to N.J.S.A. 9:6-8.8 to -8.106. As such, the findings shall remain, with O.D. in the Central Registry for substantiated child abuse.

[(Emphasis added.)]

Our role in reviewing the final decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). We will not reverse an agency's decision unless: (1) it is arbitrary, capricious, or unreasonable; (2) it violates express or implied legislative policies; (3) it offends the State or Federal Constitution; or (4) the findings on which it is based are not supported by substantial, credible evidence in the record. Univ. Cottage v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). In this case, we conclude the record does not support the finding that O.D. beat her daughter for "a full five minutes," and "D.D.'s condition was placed at imminent danger of becoming impaired." Moreover, it is clear from the record O.D. is not "a danger to children in general," and, in such circumstances, we have found "it makes little practical sense to include appellant's name in Central Registry." N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005); see also N.J. Div. of Youth and Family Servs. v. D.F., 377 N.J. Super. 59, 61 (App. Div. 2005) (concluding DYFS failed to establish that mother's name should be placed in Central Registry where "DYFS did not perceive a sufficient threat to the child to warrant the filing of a protective services action"). Accordingly, we reverse the agency's final decision that O.D. abused her daughter and direct O.D.'s name be removed from the Central Registry.

Reversed.

 

____________________________________________________________

KESTIN, P.J.A.D. (retired and temporarily assigned on recall), concurring.

While I agree fully with the Court's analysis of the matter and with the conclusion to reverse the agency's final decision, I write separately to highlight apparent procedural deficiencies in the agency's handling of the matter that are as troubling to me as the flawed result it reached.

After the November 28, 1998 event that gave rise to the administrative action at issue, the agency allowed more than four-and-one-half years to pass before addressing the matter in July 2003 with the "dispositional review" the accused parent had requested, in which the agency "affirmed the finding of abuse." Then, on the parent's appeal of that disposition, the agency, in January 2004, referred the matter to the Office of Administrative Law for handling as a contested case. After the

Administrative Law Judge's initial decision was filed, the agency allowed another five-and-one-half months to expire before issuing its final decision, rather than meeting the forty-five-day goal contemplated by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-10c.

The record discloses no explanation for such long delays. The agency has a positive duty to act more expeditiously. Overly-long delays in processing a matter such as this to administrative conclusion not only violate the underlying policies of the APA requiring prompt and thorough resolution of challenged administrative actions, they also frustrate the obvious purpose of the State's standards for protecting children from imminent or existing harm.

 

(continued)

(continued)

1

A-4098-05T2

RECORD IMPOUNDED

 

 

September 4, 2007