DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT v. M.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0297-10T4

DEPARTMENT OF CHILDREN AND

FAMILIES, INSTITUTIONAL

ABUSE INVESTIGATION UNIT,

Petitioner-Respondent,

v.

M.S.,

Respondent-Appellant.

________________________________

March 28, 2011

Argued March 2, 2011 - Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from a Final Decision of the Department of Children and Families, Institutional Abuse Investigation Unit.

Steven J. Kaflowitz argued the cause for appellant (Caruso, Smith, Edell, Picini, P.C., attorneys; Mr. Kaflowitz, on the brief).

Christine Di Marzio, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Di Marzio, on the brief).

PER CURIAM

Appellant M.S. is a middle school health and physical education teacher. He appeals from a determination of child neglect by the Chief of Staff of the Department of Children and Families (DCF or Department), together with DCF's order to place M.S.'s name in the Department's Central Registry maintained pursuant to N.J.S.A. 9:6-8.11. The agency determination followed a contrary finding by an Administrative Law Judge (ALJ) who concluded that there was insufficient evidence to support a finding of child abuse or neglect by a preponderance of the evidence. From our review of the entire agency record, we find that DCF's determination was not supported by substantial evidence. Accordingly, we reverse.

I.

As the ALJ noted, "many of the facts are in dispute." We gather the following from the factual record presented to the ALJ over a four-day hearing, and reviewed by the Department, taking care to account for the express credibility findings of the ALJ.

On January 18, 2007, while walking outdoors between classes, seventh grader K.R. stopped to cavort with friends outside of the gym facility at the middle school he attended. The gym's windows were protected on the inside by a grate and on the outside by a wire mesh array, set back a few inches from the large, vertically moveable window sashes. When a window pole topped by a metal knob emerged from inside the gym and poked through the outside wire mesh, K.R. grabbed it.

M.S. was inside the gym at the time conducting a class, and it was he who wielded the window pole. As the pole was pulled back inside the gym, K.R. held on until his left hand became trapped against the protective wire mesh. As a result of the pole's movement, K.R. sustained a laceration and nerve damage that required hospitalization, surgical treatment, and physical therapy.

As the details of K.R.'s injury spread throughout the school, its principal immediately contacted the Division of Youth and Family Services (DYFS) to report the incident. Shortly thereafter, an investigator from the Department's Institutional Abuse Investigation Unit (the IAIU) commenced the gathering of statements from witnesses, taking of photographs, and following up on the medical condition of K.R.

After several months of interviews and evidence collection, the IAIU's Findings Report declared that "[p]hysical [a]buse was substantiated regarding [M.S.'s] actions, in accordance with N.J.S.A. 9:6-8.21. [M.S. has] been identified as seriously harming the child(ren) or placing the child(ren) at risk of serious harm by other than accidental means." However, the same Findings Report noted that "[n]eglect/[i]nadequate [s]upervision was unfounded regarding [M.S.'s] actions."

M.S. immediately challenged the conclusions of the Findings Report, which drove the dispute into the Office of Administrative Law (OAL). An ALJ was assigned to shepherd the matter through the OAL, and hearings were conducted over four non-consecutive days commencing in late 2009. Eleven witnesses testified, and over thirty exhibits (including photographs and witness statements) were examined. An Initial Decision was issued on May 21, 2010, which concluded, "substantiation of abuse was not proven." In reaching this decision, the ALJ found the controversy revolved around whether the window pole was "deliberately thrust through the wire mesh" or whether "it came through the mesh unintentionally in [M.S.'s] effort to close the window." Finding the evidence "in equipoise," the ALJ was unable to conclude that the substantiation of abuse was proven by a preponderance of the evidence.

The ALJ canvassed the record in detail, observed the multitude of obvious contradictions and discordances, and ultimately discounted the testimony of K.R. and M.S., characterizing the former's testimony as "lacking in credibility," and noting the latter's testimony "will be given little credence." Instead of relying upon the recollections of the two most involved participants, the ALJ cobbled together findings primarily from the other student eyewitnesses, who were found "essentially credible, except that many of their specific details were at odds with each other." One student witness was discounted altogether because "he candidly admitted that he had no independent recollection of the incident and based his statement on what others had told him."

In reconstructing the events of January 18, 2007, the ALJ determined that K.R. "stopped by the gym window for the purpose of disturbing the gym class." In an effort to abate the noise from the disturbance, M.S. attempted to close a nearby window in the gym by using the specially-designed window pole. In so doing, M.S. inadvertently missed the socket intended for the knob and pushed the apparatus beyond the plane of the window sash. This propelled the end of the pole through the grid of the outside wire mesh into the outdoors, leaving approximately four or five inches (including the knob) exposed outside. K.R. thereupon "grabbed the pole and tried to pull it out [of] the window." M.S. then "removed the pole from the wire mesh and was successful in closing the window on the second attempt." According to the ALJ, M.S. did not realize that K.R. had been injured at that time.

After the ALJ issued the Initial Decision, it was reviewed by the Department pursuant to N.J.S.A. 52:14B-10(c). In rejecting the Initial Decision, the Department disagreed with the ALJ as to the relevant conduct of M.S. Instead of focusing upon whether the window pole was intentionally or inadvertently pushed through the wire mesh array by M.S., the Department concentrated upon the "act of engaging in a tug-of-war with a student when the student is pulling a hooked or looped end and where the pole is precariously protruding through ruptured wire mesh." Finding, "it is clear that [M.S.] knew that a child was holding the hooked end of the pole when he willfully yanked it back through the window," and concluding that the tug-of-war was "an intentional and reckless act willfully and knowingly engaged in by M.S.," a substantial risk of harm existed to which K.R. was exposed. Accordingly, the Department held that M.S.'s conduct was intentional within the meaning of G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 175 (1999) and found it to constitute neglect under N.J.S.A. 9:6-8.21(c). This appeal followed.

II.

A.

Our scope of review in this appeal is limited. "Reviewing courts should give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing." G.S., supra, 157 N.J. at 170. "'Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed.'" N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 480 (App. Div.) (quoting G.S., supra, 157 N.J. at 170), same result on reconsideration, 416 N.J. Super. 414 (App. Div. 2010).

Notwithstanding the foregoing, this court does not clone agency action. N.J. Dep't of Children & Families' Inst. Abuse Invest. Unit v. S.P., 402 N.J. Super. 255, 268 (App. Div. 2008). "[O]ur appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). We are instructed to engage in a "careful and principled consideration of the agency record and findings." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). However, only if "'there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record'" are we obliged to provide a remedy. N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 509 (App. Div. 2010) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). 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).

B.

Title Nine controls the determination of abuse and neglect cases. N.J.S.A. 9:6-8.21 to -8.73. The Department relied upon N.J.S.A. 9:6-8.21(c)(4)(b) in concluding that child neglect had occurred. The statute, in pertinent part, provides a definition

of an abused or neglected child as:

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,[1] 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).]

This court has held that the statutory phrase "minimum degree of care" refers to conduct that is "grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 178. The spectrum of child abuse and neglect ranges from situations of "'slight inadvertence to malicious purpose to inflict injury.'" Ibid. (quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). The wellbeing of children is the paramount concern. N.J.S.A. 9:6-8.8(b)(1).

The focal point of the Department's analysis was M.S.'s "tug-of-war" with K.R., and its unfortunate sequelae: K.R.'s serious hand injury. Two of the key ingredients in the Department's mode of thought were the nature of the window pole and the condition of the wire mesh array on the outside of the gym windows, both of which the Department palpably got wrong. First, it found that the window pole had a "hooked end," a conclusion that is arguably semantically correct, but not otherwise borne out by the record. The benign, rounded detail of the working end of the apparatus is found in photographic evidence collected by an IAIU investigator:

Additionally, the Department thought it material that the pole was "precariously protruding through ruptured wire mesh." The record supports neither the notion that the four or five-inch protrusion to the outside was precarious nor the conclusion that the wire mesh was "ruptured." These findings are plainly arbitrary and unreasonable, based upon any fair reading of the record.

We are, however, more concerned with the Department's finding that an improper tug-of-war ensued, in light of the ALJ's conclusions to the contrary and the discordant pieces of evidence concerning the happening of the event. We do not doubt that the agency head is fully authorized to depart from the determinations contained in the Initial Decision, but any such departures in the face of explicit credibility findings must be bottomed upon clearly expressed and particularized reasons for rejecting the ALJ's hands-on analysis, and must be supported by "sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c). We are unable to detect that quality of decision-making in this case.

First, in order to have a tug-of-war, there must be a mutual pitting of opposites in a test of strength. Discounting the versions of events from M.S. and K.R., what remained were the wildly disparate versions of events from several middle school-aged children relating an isolated incident that occurred almost three years earlier, none of which could reasonably be interpreted as bespeaking an unseemly tug-of war.

One student testified that M.S., along with two of his students, was inside the gym pulling the pole while K.R. held on to it outside. M.S. was described as "pulling it softly," while "the reason that it got pulled so hard was because these other two kids were pulling on the pole."

Another student, one who was inside the gym attending a fitness class, testified that M.S. "stuck [the pole] through the fence on the window and [tried] to scare" away K.R. and others who were bothering the class. The testimony revealed merely that "[M.S.] pulled [the pole] back in" and that is when the injury occurred.

A third student witness claimed that several students on the outside of the gym "were playing with a pole," and "then [K.R.] started screaming." This witness conceded that he fabricated parts of his written statement that was provided to an investigator from the IAIU, and that his recollection was limited to "just remember[ing] I was playing, and then [K.R.] started screaming."

The fourth student witness described the scene in similar general terms as the others, but indicated that several students inside the gym were attempting to pull the pole away from K.R.'s grasp, and the encounter lasted "probably about a minute, two minutes tops." The "tugging match," as described by this witness, lasted until "the little hook . . . got caught in [K.R.'s] finger and like scraped the skin and the meat and it started bleeding." Afterwards, when M.S. was informed of K.R.'s injury by this student, M.S. appeared surprised that someone was injured.

Another student eyewitness ten feet away from K.R., and testifying, "I clearly [saw] it happen" declared that as M.S. was closing a gym window with the pole, K.R. and others tried to reach for the pole through the wire grid, but only K.R. succeeded. In a quickly unfolding incident, "[K.R.] got hurt while [M.S.] was trying to close the window." When the ALJ mentioned to the witness that her written statement declared that M.S. "was trying to open the gym window with a window pull," the student indicated that the difference between opening and closing the window was not important to her "because it's the same thing. It's either you pull it up or you pull it down."

The last student witness was inside the gym at the time of the incident. He indicated that K.R. and others were disturbing the gym class, and he observed "[M.S.] tak[e] a stick and open the window and tell[] them to go to class." According to this witness, "the pole kind of slipped or something when [M.S.] was pushing it open, and when he went to go bring it back, they grabbed it." M.S. was described as telling those holding the pole "to let it loose," and when they did not, another student inside the gym took hold of the pole "trying to pull it from behind [M.S.]." Eventually, those outside "let the pole go" and "[t]he boy looked down at his hand."

From this welter of contradictory testimony we cannot ascertain the basis for the Department's certitude that M.S.'s conduct constituted a "tug-of-war" amounting to "an intentional and reckless act willfully and knowingly engaged in by M.S." The most that can possibly be said, as a matter of law, is that in trying to retrieve the window pole from the grip of a boisterous student, M.S. negligently wrenched the apparatus, which contributed to K.R.'s injury. This plainly does not approach the level of gross negligence or recklessness, and the available evidence does not support a conclusion that M.S. was guilty of child neglect within the meaning of Title Nine.

What is missing from the Department's analysis is a detailed review of "the circumstances leading up to the accident." G.S., supra, 157 N.J. at 175. For example, little consideration was given to the ALJ's finding that the evidence was "in equipoise." A careful sifting of the testimonial cross-currents was not performed, nor was a thorough correlation of the documentary evidence conducted. Fortified by the unquestioned evidence that M.S. was not even aware that an injury had occurred, we conclude that he does not require the heightened governmental supervision or deserve the adverse reputational consequences for an individual listed in the Central Registry, N.J.S.A. 9:6-8.11. See N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

We shall not sacrifice our common sense of the dynamics of the school environment to the Department's fervent protection of children. The evidence unmistakably shows that K.R.'s injury was an unfortunate accident, no more and no less. The retrieval of the window apparatus was not part of a pattern of neglect, and under these circumstances cannot be elevated to a pernicious assault. While we appreciate that in a heartbeat a child can be put at risk, we cannot agree that the record we have reviewed supports the Department's finding of child neglect by M.S.

Reversed. The entry of M.S.'s name in the Central Registry shall be removed.

1 The statute includes a teacher in the definition of "parent or guardian." N.J.S.A. 9:6-8.21(a).