RONNIE CHARME v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RONNIE CHARME,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND WORKFORCE

DEVELOPMENT, and FAMILY &

CHILDREN'S SERVICES, INC.,

Respondents.

___________________________________________

August 28, 2014

Submitted July 23, 2014 - Decided

Before Judges Lihotz and Guadagno.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 290,504.

Witman Stadtmauer, P.A., attorneys for appellant (Lewis Cohn, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Family & Children's Services, Inc., has not filed a brief.

PER CURIAM

Ronnie Charme appeals the final administrative decision of the Board of Review affirming the determination of an appeal tribunal that she was disqualified for unemployment benefits for misconduct connected to her work. Because the Board's conclusion that Charme was discharged for misconduct connected to her work is not supported by the record before us, we reverse.

I.

Charme was employed as a therapist by respondent Family and Children's Services (FCS) from 2001, until she was discharged on May 27, 2010. In 2009, Charme was suspended for failing to report an incident involving a violation of a restraining order with a family she was counseling. She was warned that she would be subject to dismissal if there were similar violations in the future.

In January 2010, Charme's supervisor, Drew Nieuwenhuis, assigned Charme to conduct family counseling of a mother and her children (the R/S family)1 at the request of the Division of Youth and Family Services, now named the Division of Child Protection and Permanency (the Division). The paperwork provided to FCS by the Division included a multi-purpose order dated December 1, 2009, entered in a Title 9 litigation initiated by the Division. The December 1 order provided that the children's father, who was a defendant in the action, was "restrained from all contact (including phone contact) with the child(ren)." The order also restrained the father from entering the mother's house.

At the time she was assigned the case, Charme was given access to the FCS file, but Nieuwenhuis initially testified he did not recall if the December 1 order was included in these materials. When questioned by Charme's attorney, Nieuwenhuis testified that the December 1 order was in the file and he "may have seen it in [his] review [of the file]."

Initially Charme provided in-home counseling to the mother and children. On March 18, 2010, a different Family Part judge entered an order in the Title 9 litigation permitting the father some limited contact with the children. He was allowed to attend the Communion of one of the children and a party to be held thereafter, as long as the children were being supervised by the mother. The father was required to participate in couples counseling with the mother. Of significance to our inquiry, the court permitted the father to participate in family counseling, "[i]f family counselor indicates that it is therapeutically recommended for [the father] to be included in counseling he shall be included."

After the entry of this order, the Division caseworker spoke with Charme and discussed including the father in family counseling. Charme informed the caseworker that the mother informed her that the father has maintained "a clean and stable lifestyle and does not appear to present a risk to herself or the children."

Consistent with the March 18 order, Charme prepared a treatment summary plan that sought to expand the counseling to include the father. Charme discussed the plan with Nieuwenhuis and recommended that the father be included in family therapy, as he had completed substance abuse treatment. Nieuwenhuis approved the treatment plan and in April 2010, Charme began to include the father in family counseling.

At some point after the Division referred this matter to FCS, Dr. Helene Steinfeld, the Clinical Director of FCS, denied a request for couples counseling for the mother and father because of a history of domestic violence. On May 25, 2010, Steinfeld learned that Charme was providing couples counseling and questioned Nieuwenhuis. On May 27, 2010, Nieuwenhuis met with Charme and terminated her. He drafted a memo explaining his actions:

After a review of the most recent court order and the original referral information received in January for the R/S family, coupled with the concerns raised by the clinical director about unresolved domestic violence issues, it was determined that Ronnie had made an error in clinical judgment by allowing the father to begin participating in therapy. The unresolved history of domestic violence perpetrated by the husband/father, and the intact restraining order imposed by the court, indicate the possibility of ongoing or future violence within the home. Ronnie's agreement to begin including the husband/father in the therapy sessions in the family home, put the mother and children at risk of harm, and therefore was unethical and in poor judgment.

As there has been a documented history of poor judgment, lack of clinical boundaries, and unethical decisions made by this therapist, this supervisor and the Associate Executive Director met with Ronnie to discuss these concerns, and reiterate proper ethics and boundaries as required by the agency and professional code of ethics.

Ronnie was argumentative in regards to the above charges, stated that she believed she had made an appropriate decision, and seemed unable to answer direct questioning about her responsibilities as a therapist. She did not at any time acknowledge poor judgment, and claimed that she had given the appropriate information to this supervisor prior to making the decision to include Mr. R in sessions. This supervisor reminded her that she had never discussed domestic violence or restraining orders during supervision, but had only indicated substance abuse issue which had been treated. Ronnie stated that she believed that the family's safety was never compromised, but could not answer the question as to whether it is ever therapeutically appropriate to place a couple with unresolved domestic violence issues in a joint session.

Due to Ronnie's history of boundary issues, unethical decision making, and lack of clinical [judgment], and the ongoing potential for harm to the clients based on these factors, Ronnie was terminated from employment with this agency and asked to vacate the building with her belongings. Many confidential client records were removed from Ronnie's personal belongings prior to leaving the building, and all agency property was recovered. Ronnie was instructed to have no further contact with clients.

[(Emphasis added).]

Charme filed a claim for unemployment benefits and a deputy with the Division of Unemployment Insurance found that she was disqualified for benefits as she was

discharged for violation of company rules and procedures. . . . [as she] allowed an individual with a current restraining order to participate in family therapy. There is no evidence that you informed your supervisor of the individual's legal background before proceeding for therapy.

[(Emphasis added).]

Charme appealed the deputy's determination and, after a hearing before an appeal tribunal, the decision was affirmed. Charme appealed to the Board of Review and the matter was remanded to the appeal tribunal for additional testimony. After a second hearing in which FCS did not participate, the appeal tribunal rejected FCS's claim that Charme's actions constituted misconduct, concluding that

there was a lack of sufficient specific evidence presented by the employer to meet the burden of proof necessary to show that the claimant knew, or should have known that the father in question had an active restraining order against him at the time she allowed him to participate in family counseling.

FCS appealed and the Board again remanded, finding that FCS had good cause for not participating in the second hearing. After a third hearing, the appeal tribunal found that Charme was disqualified from benefits because her discharge was for misconduct connected with her work. In a departure from its earlier decision, the appeal tribunal concluded that

the persuasive testimony provided by the claimant's supervisor [Nieuwenhuis] indicates a copy of the active restraining order was in the client's file upon initial receipt by the claimant. Further, it was incumbent on the claimant to review the file, and not the responsibility of her supervisor to be aware of all information in the file when he assigned it to the claimant. As such, it is concluded by this Appeal Tribunal that the claimant's actions in allowing the father in question to participate in family therapy, in violation of an active restraining order, opened the employer up to potential liability, and therefore was a disregard of the standards of behavior which the employer has a right to expect of his employees and constitutes misconduct connected with the work.

[(Emphasis added).]

Charme appealed and the Board affirmed. On appeal, Charme claims the Board acted arbitrarily because the appeal tribunal ignored that the "active restraining order" in the December 2009 order was superseded by the March 2010 order that not only authorized but indeed mandated including the father in counseling with the mother and children.

II.

Initially, we address the conclusion of the appeal tribunal, affirmed by the Board, that the December 1, 2009 order constituted an "active restraining order." As commonly used, the term "restraining order" refers to an order issued pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The PDVA defines domestic violence as the occurrence of one or more predicate acts inflicted upon a person protected under the PDVA. N.J.S.A. 2C:25-19(a). The commission of a predicate act against a protected party constitutes domestic violence and authorizes a court to impose restraints, including a restraining order. See N.J.S.A. 2C:25-29(b).

Although the restraints imposed pursuant to the [PDVA] are essentially civil, they are backed by the threat of enforcement through a contempt proceeding, N.J.S.A. 2C:25-30, and are accompanied by the possibility of the imposition of criminal sanctions, N.J.S.A. 2C:25-31 (authorizing arrest if law enforcement officer finds probable cause to believe defendant has committed act of contempt); N.J.S.A. 2C:29-9(b) (defining contempt to include violation of order entered pursuant to [PDVA]).

[J.D. v. M.D.F., 207 N.J. 458, 474 (2011).]

Before a final restraining order can be dissolved, a court must determine that there have been "substantial changed circumstances . . . that constitute good cause for . . . dismissal." Kanaszka v. Kunen, 313 N.J. Super. 600, 609 (App. Div. 1998).

Our court system dedicates a specific docket number (FV) to civil complaints filed pursuant to the PDVA. New Jersey Domestic Violence Procedures Manual, 1.12 (2008). The December 1, 2009 order was not filed under an FV docket but was entered under an FN or Title 9 docket. The Title 9 complaint filed by the Division sought care and supervision of the R/S children and relied on a report dated November 19, 2009.2 The order temporarily suspended the father's visitation with the children and, as previously mentioned, restrained him from all contact with the children and from the mother's home.

Although the December 1 order restrained the father's contact with the children, it was not a restraining order entered pursuant to the PDVA. Rather, the order was entered under a Title 9 proceeding, not an FV docket. The distinction is critical. Title 9 governs the adjudication of abuse and neglect proceedings. See N.J.S.A. 9:6-8.21 to -8.73. The purpose of Title 9 is

to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. . . . 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).]

When the Division accepts care or custody of a child under a Title 9 proceeding, it is obligated to make reasonable efforts "to preserve the family in order to prevent the need for removing the child from his home." N.J.S.A. 9:6-8.8(b)(2). The December 1 order indicated that the father's visitation was suspended temporarily pending further order of the court. Similarly, the restraints prohibiting the father's contact with the children and barring him from the home were subject to modification consistent with the best interests of the children.

The March 18, 2010 order modified the December 1 order in several respects. The father was permitted weekly visitation with the children supervised by the Division; he was offered psychological and substance abuse evaluations; and, as previously mentioned, he was permitted to attend a party with the children supervised by the mother. The father was ordered to engage in couples counseling with the mother and was allowed to participate in Charme's family counseling if the family counselor found that his participation was "therapeutically recommended." The Division supported the father's inclusion in Charme's sessions and communicated that to her. Charme then sought and received Nieuwenhuis's permission to include him in the sessions.

Given these critical and substantial modifications to the December 1 order, we find no support for Nieuwenhuis's claim there was an "intact restraining order imposed by the court" at the time the father participated in family counseling with Charme and other members of his family. We also find no basis for the conclusion of the appeal tribunal that Charme's actions, in allowing the father to participate in family therapy, violated an active restraining order. Quite the contrary. Charme was following the recommendations of the Division as authorized by the March 18 order to include the father in the sessions.

We also reject Nieuwenhuis's conclusion that Charme was not authorized to make the determination that the father's participation was "therapeutically recommended." The March 18 order left that determination up to her as the family counselor, not her supervisor, who admittedly had not reviewed any of Charme's progress notes or even looked at the file since the case was opened by FCS in January 2010.

Reversed and remanded. We do not retain jurisdiction.

1 We employ the initials used by FCS to refer to the family.

2 We have not been provided with the report.