DEPARTMENT OF CHILDREN AND FAMILIES v. G.O.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEPARTMENT OF CHILDREN

AND FAMILIES, DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Petitioner-Respondent,

v.

G.O.,

Respondent-Appellant.

________________________________

IN THE MATTER OF C.O., a minor.

________________________________________________________________

May 29, 2014

Submitted April 29, 2014 Decided

Before Judges Espinosa and Koblitz.

On appeal from the New Jersey Division of Child Protection and Permanency, Department of Children and Families, Docket No. AHU-10-0004.

G.O., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Virginia Class-Matthews, Deputy Attorney General, on the brief).

PER CURIAM

G.O. (George)1 appeals from a final agency decision of the Department of Children and Families, Division of Child Protection and Permanency (the Division) that substantiated a referral of physical abuse for his excessive use of corporal punishment on his son, C.O. (Casey). We affirm.

On January 2, 2008, Yolanda Carlton, a nurse at Casey's elementary school, reported to the Division that five-year-old Casey had received an injury from his father, George. The injury consisted of a large black eye with two small scratches near it. When the nurse questioned Casey about the origin of his injury, he stated first that it was from falling down, and then revealed that his father hit him with a belt because he would not go to sleep. The nurse did not check for any other injuries.

The Division assigned its caseworker, Laverne Sanders, to investigate the case. She held an initial meeting with the family at their home on January 3, 2008, at 7:00 p.m. As the children were asleep, she only interviewed the mother and father. However, she had George wake Casey up so she could take a photograph of his eye. She did not question him because he was sleepy. George told Sanders that the injury could have come from playing with his sister. Sanders was unable to complete a full interview of the parents because they were having dinner.

The next day, Sanders interviewed the children at their school and also spoke to Carlton and Iris Pereira, a teacher assistant. Carlton repeated the information she initially provided. Pereira added that Casey's sister, N.O. (Nina), told her that George beat Casey with a belt and his hand for refusing to go to sleep. When Sanders asked Casey where the bruise had come from, he stated he had fallen in the park. When asked a second time, he replied that his father hit him because he would not go to sleep. Casey clarified that his sister had not hit him, and that his father hits him about seventeen times a day with a belt. Sanders did not check for physical evidence to confirm this claim.

Sanders interviewed Casey's seven-year-old sister, Nina, who confirmed that Casey was beaten because he did not go to sleep. She stated that Casey gets beaten "every day" "because he was bad." She stated that George also beats her with a belt and denied that anybody else beat them.

Casey's six-year-old sister, O.O. (Olivia), was interviewed next. Olivia told Sanders that everyone in the house was beaten with a belt by George. She also said that the children are unsupervised when they return home from school.

Sanders also interviewed U.O. (Ugo), Casey's eight-year-old brother. Initially, Ugo said he did not know what happened to Casey. He then told Sanders that his siblings do get beatings with a belt because they are young and that he gets beatings with a plastic hanger. Ugo also told Sanders that the children are unsupervised after school.

On the evening of January 4, 2008, Sanders interviewed George at his home. He denied hitting his children with belts or hangers. He also denied knowledge of Casey's injury until the school reported it to him. George suggested that the bruise came from a security guard at the school. George claimed that Casey has behavioral issues which cause him to fight with the security guards, teachers, and nurses at a fairly constant rate.

The Division substantiated the referral of physical abuse by George. George appealed and a hearing was conducted before an administrative law judge (ALJ). Sanders's supervisor, Kwatqulin Barnes, testified based upon the reports prepared by Sanders. Photographs of Casey's injury were received in evidence.

George testified that he did not hit Casey on January 2, 2008. He specifically denied ever striking any of his children. When George questioned Casey about the bruise, Casey told him that it was from a security guard at the school holding him. George stated that Casey was unable to explain what happened due to his Attention Deficit Disorder. When he called the school to ask them about the incident, he was told the Division was already responding to it and he did not ask further questions. George also stated that he asked Casey's sister if she had hit him and she told him that she had not.

In his initial decision, the ALJ reviewed the evidence and recounted the testimony provided by George without making any determinations regarding the credibility of his denials that he had ever struck any of the children or caused the injury to Casey. The ALJ recognized that the rules of evidence are relaxed in cases involving allegations of child abuse or neglect, specifically citing to N.J.S.A. 9:6-8.46(a)(4), which states that a child's prior statements relating to allegations of abuse "shall be admissible . . . provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." The ALJ acknowledged further that "corroboration can come in different forms."

In assessing the record, the ALJ discounted the statements by Casey's siblings as "stories," Pereira's statement as hearsay, and noted the lack of evidence of additional bruises on Casey. Finding "there is no corroborative evidence related to the allegation of abuse or to any out-of-court statements," the ALJ concluded that the Division failed to prove excessive corporal punishment by a preponderance of the credible evidence.

Upon her review, the Director of the Division acknowledged that findings contained in the initial decision are binding if supported by adequate, substantial and credible evidence. N.J.S.A. 52:14B-10(c). However, the Director noted that the ALJ did not make any credibility determinations and had erred in concluding there was no corroborative evidence of the alleged abuse or the out-of-court statements.

The Director stated the Child Protection and Permanency (CP&P) records "are admissible and explicitly not hearsay pursuant to N.J.S.A. 9:6-8.46." Like the ALJ, the Director recognized that the standard for the admissibility of statements made by alleged child abuse victims was met if the statements were corroborated. However, the Director parted company with the ALJ on the application of this legal standard to the facts of the case, stating,

I find that the CP&P reports, testimony, and photograph of [Casey's] injury, provide sufficient corroborative evidence that [George] used excessive corporal punishment on [Casey].

The Director then reviewed specifics of this corroborative evidence, and observed the consistency in the children's statements. The Director found corroboration in the injury on Casey's face and in the manner in which the CP&P report illustrated George's "overall aggressive nature," his expressed anger with the caseworker for conducting the investigation and his intimidating demeanor toward Casey when he confronted him about his statement to the caseworker. The Director also found reason to doubt George's credibility, noting facts that contradicted his testimony. The Director concluded there was sufficient corroboration of Casey's statement and found "the incident occurred as Casey stated."

Relying upon our decision in N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011), the Director stated that corporal punishment may be "excessive per se" when it results in serious injury that was foreseeable. To constitute excessive corporal punishment here, the Director found it necessary to determine whether George's conduct went "beyond what is proper or reasonable" under the surrounding circumstances. Ibid. The Director found, "[George's] response to his son not going to sleep went far beyond anything that could have been construed as a reasonable response."

This court may 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 Club of Princeton N.J. Corp. v. N.J. Dep't of Env't Prot., 191 N.J. 38, 48 (2007). Review of an agency's factfindings are limited to

whether the findings made could reasonably have been reached on sufficient credible evidence present 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 and with due regard also to the agency's expertise where such expertise is a pertinent factor.

[Jackson v. Concord Co., 54 N.J. 113, 117 (1969).]

See also Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004); Klusaritz v. Cape May Cnty., 387 N.J. Super. 305, 313 (App. Div. 2006), certif. denied, 191 N.J. 318 (2007).

Careful appellate review is required when the agency disagrees with the ALJ's factual findings. In re Lalama, 343 N.J. Super. 560, 565-66 (App. Div. 2001). However, the question of substantial evidence remains relevant even where the ALJ and the agency are at odds. N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 505 (App. Div. 1983). "In the last analysis it is the agency's function, not the [ALJ]'s, to make the findings of fact and select the ultimate decision, and where there is substantial evidence supporting each result it is the agency's choice that governs." Id. at 505.

The ALJ's report is part of the record and weighs against the agency's decision when they are in conflict. Id. at 507-08. However, a key factor in reviewing an agency decision that conflicts with that of the ALJ is whether the ALJ's decision relies upon credibility assessments. N.J.S.A. 52:14B-10(c) states that

The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.

It is not for this court "or the agency head to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).

As the Director noted, the ALJ made no credibility determinations here. Rather, his weighing of the evidence was skewed by a mistaken view and application of the legal standard for the admissibility of Casey's statement that his father beat him with a belt. The Director correctly found that the corroboration required to meet this standard was satisfied by the evidence of Casey's injury and the statements made by Casey's siblings.

Because the allegation concerned a single incident that did not result in serious injury, the Director appropriately considered the surrounding circumstances and found the following significant: the location of the injury close to the eye; the fact George used both his hand and an instrument to cause the injury, increasing the risk of harm; and the reason for the abuse. The Director concluded,

[S]triking a young child repeatedly with a belt and with a hand, causing a large black and blue on the face, for not going to bed on time, is certainly not the sort of conduct the Appellate Division would have accepted and found to be "proper and reasonable" according to the K.A. analysis.

Corporal punishment constitutes "abuse" under N.J.S.A. 9:6-8.21(c)(4)(b) if it is excessive. The statute provides that a child is "abused or neglected" when his

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 . . . 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[.]

[Ibid. (emphasis added).]

Abuse or neglect must be proven by a preponderance of the evidence, which must be "competent, material and relevant[.]" N.J.S.A. 9:6-8.46(b). As the Director observed, Casey's statement was admissible, provided it was corroborated by other evidence. Most obviously, Casey's statement was corroborated by his injury. But here, there was additional corroboration in the statements made by Casey's siblings recorded in the CP&P reports, which were also admissible pursuant to N.J.S.A. 9:6-8.46(a)(3). The corroborative evidence thus clearly provided support for Casey's out of court statements. See N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166-67 (App. Div. 2003); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002).

There need not be proof that the parent or guardian intended to harm the child. "So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of [his] conduct is irrelevant. Knowledge will be imputed to the actor." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). In addition to the nature of the injury inflicted, we view the conduct within the context of all the relevant circumstances. See N.J. Div. of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011); K.A., supra, 413 N.J. Super. at 509-10. Here, again, we agree with the Director that George's response to a child's failure to go to bed on time went beyond what was proper and reasonable and constituted excessive corporal punishment.

Affirmed.

1 We use fictitious names for clarity and to protect the identity of the children.