DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT v. T.K.

This case can also be found at 198 N.J. 313, 966 A.2d 1079.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2026-07T22026-07T2

DEPARTMENT OF CHILDREN AND

FAMILIES, INSTITUTIONAL

ABUSE INVESTIGATION UNIT,

Petitioner-Respondent,

v.

T.K.,

Respondent-Appellant.

__________________________________

 

Submitted November 3, 2008 - Decided

Before Judges Carchman and Sabatino.

On appeal from a Final Decision of the Director of Central Operations of the Department of Children and Families, Ref. No. AHU 01-019.

Rem Zeller Law Group, attorneys for appellant (Jeffrey B. Steinfeld, of counsel and on the brief; Scott A. Gorman, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joanne Leone, Deputy Attorney General, on the brief).

PER CURIAM

T.K., a former corrections officer recruit, appeals a final agency decision of the Department of Children and Families ("the Department") of November 1, 2007. The Department's final decision affirmed the finding of an administrative law judge ("ALJ") that T.K. had inflicted abuse upon a juvenile inmate, in violation of N.J.S.A. 9:6-8.21, by punching the juvenile repeatedly in his cell. We affirm.

The parties stipulated the pertinent underlying facts before the ALJ. We summarize them briefly here.

On January 23, 1999, T.K. was working at the New Jersey Training School for Boys in Jamesburg, a secure detention center for youths aged twelve to twenty-three. That evening, T.K. was assigned to perform random searches of five cells in Cottage 10. One of the cells that T.K. chose to search was occupied by F.R., a fifteen-year-old juvenile with a history of belligerence. T.K. asked F.R., who had been in a common room watching television, to go to his cell and unlock his footlocker. F.R. complied.

During the course of searching F.R.'s cell, T.K. uncovered some writing implements that were apparently contraband. The search caused F.R. to confront T.K. in an angry manner. T.K. grabbed F.R. near the neck and pushed him onto the bed. Then T.K. punched F.R. in the face and head at least three times. As these blows were being struck, F.R. put up his hands to cover his face.

The punches were witnessed by two other juveniles, who called for help. Other corrections officers arrived in response to that call. The officers attempted to resume the cell search. When F.R. continued to voice objections to the search, T.K. punched him again, at least three times in the head and body. F.R. fell back into a corner, hiding his face. T.K. then left the area.

It is uncontroverted that during the altercation, F.R. did not physically touch T.K. or threaten to strike him. It is also uncontroverted that neither of the two juvenile observers made any threatening gestures toward T.K.

As a consequence of being hit repeatedly by T.K., F.R. was treated at the hospital and admitted for observation. He was diagnosed with a large hematoma to his right temporal area, a moderate-sized hematoma to his left eye and abrasions to his left shoulder. He received ice packs and medication to relieve the pain and swelling.

F.R. subsequently reported that a staff member had come into his cell and beaten him. His accusation was forwarded to the Department's Institutional Abuse Investigative Unit (the "IAIU"), which performed an investigation of the events pursuant to the child abuse-and-neglect statute, N.J.S.A. 9:6-1 to -8.106. See also N.J.A.C. 10:129-3.3 (requiring an investigation to determine if reported child abuse or neglect is substantiated).

Meanwhile, T.K.'s employer suspended him and charged him with physical or mental abuse of an inmate, conduct unbecoming a public employee, neglect of duty and intentional misstatements of material fact. T.K. negotiated a settlement of those charges with his employer, agreeing to resign his position and to not seek reemployment in the future. As part of the settlement, T.K. acknowledged that he had "verbally and physically assaulted [F.R.] resulting in [F.R.'s] bodily injury . . . ." No criminal charges or civil personal injury action were brought against T.K.

The IAIU independently substantiated T.K.'s physical abuse of F.R. and placed T.K.'s name on the Central Registry. N.J.S.A. 9:6-11. After being notified of the IAIU's finding, T.K. filed a timely administrative appeal in February 2001. The agency conducted a telephonic dispositional review in February 2005 and reaffirmed the finding of substantiated abuse. T.K. then sought a hearing before an ALJ. Counsel for both parties supplied the ALJ with documentary proofs and otherwise stipulated to the pertinent facts. In October 2007, the ALJ issued a written decision sustaining the finding of abuse. The ALJ's decision was ratified by the Department in a final agency decision issued by the Director of Central Operations on November 1, 2007. As part of her decision, the Director ordered T.K.'s name to remain on the Registry.

T.K. continues to object to the finding of abuse. In his brief to this court, T.K. argues that the continued inclusion of his name on the Registry is unduly punitive and contrary to the policies and purposes of the abuse-and-neglect statutes. We disagree.

Under N.J.S.A. 9:6-8.21, a custodian of a child, including a "staff person" such as T.K. employed within an institution that houses children, commits abuse and neglect where, for example, he or she:

(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; [or]

. . . .

(4) [causes] a child whose physical, mental, or emotional condition [to have] been impaired or [to be] in imminent danger of becoming impaired as the result of the failure of [the staff member] 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).]

The agency's burden of proving such conduct amounting to abuse or neglect is by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).

Once abuse and neglect has been substantiated, N.J.S.A. 9:6-8.11 mandates that the offender's conduct be logged in the Registry as "the repository of all information regarding child abuse or neglect . . . accessible to the public pursuant to State and federal law." N.J.S.A. 9:6-8.11. The agency has no discretion under the statute to withhold or remove an offender's name from the Registry unless it is determined that the child in question was not harmed or likely to be harmed. See, e.g., N.J. Div. of Youth & Fam. Svcs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). The Registry serves an important function in assuring that employers, day care centers, adoption agencies, and other organizations that deal with children are apprised of the harmful conduct that led a particular individual to be listed on the Registry. N.J. Div. of Youth & Fam. Svcs. v. M.R., 314 N.J. Super. 390, 399-402 (App. Div. 1998). However, we do not take lightly the adverse reputational consequences for a person who is named on the Registry. S.S., supra, 372 N.J. Super. at 27.

As a general matter, our function in reviewing an administrative agency's final decision is a limited one. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. These are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

We are satisfied that the Department's final decision in this case, including its determination that T.K. must remain on the Registry, meets these legal requirements. We discern nothing arbitrary or unduly punitive in the Department's conclusion that T.K.'s admitted punching of F.R. -- at least six times -- amounted to abuse and neglect under N.J.S.A. 9:6-8.21, and that it warranted regulatory action.

The fact that the juvenile did not sustain any fractures or long-term physical damage does not negate the seriousness of T.K.'s unjustified attack. Nor does the youth's belligerence ameliorate the painful beating that T.K., who was responsible for the safety of the juveniles assigned to him by his employer, deliberately inflicted. T.K.'s loss of control was inexcusable. We fully concur with the following specific findings of the ALJ:

There is no doubt but that T.K. struck F.R. on two separate occasions within several minutes. The evidence is convincing that he punched F.R. in and around the face, sufficient to inflict bruising described as hematomas. What is absent is evidence of any justification, sufficient to warrant either the infliction of corporal punishment, or physical restraint.

. . . .

I am convinced beyond doubt that T.K. did not have cause to repeatedly strike the inmate, F.R. That F.R. suffered no serious permanent injury is of no moment in the determination of abuse. It is well within the realm of foreseeability that the blows inflicted by T.K. could have resulted in much more serious injuries. Repeatedly punching the juvenile in the face and head created a substantial risk of harm such as to warrant a finding of abuse.

Affirmed.

At the time, the Department responsible for such matters was the Department of Human Services. In 2006, those statutory functions were transferred to the newly-created Department of Children and Families. See L. 2006, c. 47 (eff. July 1, 2006).

The Central Registry has since been renamed the Child Abuse Registry. See Assembly Family, Women and Children's Services Committee, Statement to Senate Bill No. 2985 (June 3, 2004); see also L. 2004, c. 130, 23 (eff. August 27, 2004). For sake of consistency, we shall refer hereafter to the reporting instrument as "the Registry."

The record does not enlighten us why it took the agency four years to arrange and conduct its dispositional review. Although that lengthy delay does not affect our consideration of the merits of this case and no claim of undue delay is raised by T.K., we trust that the delay was aberrational. We expect the agency to process reviews in other cases far more expeditiously.

(continued)

(continued)

9

A-2026-07T2

RECORD IMPOUNDED

November 21, 2008