NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES DIVISION OF YOUTH AND FAMILY SERVICES v. R.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DEPARTMENT OF

CHILDREN AND FAMILIES,

DIVISION OF YOUTH AND

FAMILY SERVICES,

Petitioner-Respondent,

v.

R.C.,

Respondent-Appellant.

___________________________________

August 26, 2014

Submitted March 19, 2014 Decided

Before Judges Grall and Accurso.

On appeal from the New Jersey Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 10-0810.

Tomasella & Tomasella, L.L.C., attorneys for appellant (Moira Tomasella, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie Beth Christensen, Deputy Attorney General, on the brief).

PER CURIAM

R.C. appeals from the June 25, 2012 final agency decision of the Director of the Division of Youth and Family Services1 reversing an initial decision of the administrative law judge, (ALJ) which recommended dismissal of the Division's charge of neglect against R.C. based on his having exposed his son to domestic violence. Because we conclude that the Director's decision is based, in part, on a clear misreading of the record before the ALJ, we remand for reconsideration.

R.C. is the father of X.C. (Xan) and A.C. (Alexis).2 At the time of the events leading to this appeal, they lived with R.T., the children's mother. Xan was then ten-years-old and Alexis, three. Both parents were substantiated for neglect. R.T. however, did not appeal that determination.

We draw the facts from the evidence adduced at the hearing in the Office of Administrative Law (OAL). Although never having married, R.C. and R.T. had been in a relationship since they were both fourteen-years-old. Xan was born when they were sixteen. It is undisputed that sometime in 2009, when the parents were twenty-six, R.T. began to have a problem with alcohol abuse, regularly coming home drunk. The Division had previously investigated an allegation against R.T. of substance abuse in 2004. That case was closed after R.T. completed clinical and drug counseling. The Division was apparently aware that R.T. had been sexually abused as a child and that she never received adequate counseling to help her cope with that trauma.

On January 14, 2010, the couple had a loud argument in their apartment and a neighbor called the police. The children did not witness that argument as Xan was at school and Alexis asleep in her room. R.C. was arrested after R.T. told the police he had hit her. She declined medical treatment and refused to apply for a temporary restraining order. R.T. submitted an affidavit to the court in the criminal matter shortly thereafter saying that she told the police that R.C. was "abusing" her because she was "really angry." She claimed that R.C. had not been the aggressor, they were both at fault, and that both had learned from this "awful experience" and she saw no need for the no-contact order set as a condition of R.C.'s bail.

The criminal charge against R.C. was subsequently dismissed. Although the record is not particularly clear, it appears that when vacating the no-contact order, the judge told the couple they needed to attend counseling.3 They attended a counseling session in March, which resulted in the counselor making the referral to the Division which sparked the Division's investigation. The counselor reported to the Division that he met both parents, who "appeared like nice people" but the father "disclosed that the mother has an alcohol problem" and he has occasionally found her under the influence of alcohol when she was supervising the children. The counselor repeated his understanding that the parents "were court ordered to visit

. . . due to minor domestic violence in the home," and that he was "not aware if it has ever been physical" but believed "they have shoved each other."

The Division caseworker testified at the hearing that both R.C. and R.T. cooperated in the investigation and were eager to accept Division services. The Division placed homemakers in the family's apartment on a daily basis after R.T. confirmed that she was abusing alcohol and had done so when alone supervising the children.

In the Division's investigation summary, the caseworker related that Xan told her that he had seen his parents "pushing each other" and on "the floor push[ing] each other." The Division's summary also reveals that Xan once told the caseworker that he had never seen "any marks or bruises or blood on either of his parents when they push each other." Another time he said that he has seen "his parents push and hit each other" and that "he has seen his mother with bruises." When asked where the bruises were, Xan responded "everywhere." Xan answered the worker's questions about his mother's drinking, reporting that he knows when she has been drinking because "she is wobbly, talks funny, and is always laughing." As the worker continued to question him about his mother's alcohol abuse, Xan "put his head down and told the worker that was all he remembered."

R.C., R.T. and Xan all submitted to psychological evaluations.4 Xan told the evaluating psychologist, Dr. DeLong, that he "saw [his parents] push each other on the floor" but could not say how many times. When asked whether he had seen one parent hit the other, he responded, "Different things happen. They both fight each other." He said that his parents' fighting made him feel "sad" and he worried "about his mother's drinking and whether his parents will stay together." Xan reported on a checklist measuring trauma that he felt "lonely, cries, feels sad, feels like he did something wrong, feels bad, feels like nobody likes him, and wants to kill himself." He also responded on another self-report checklist that "he argues a lot, demands attention, is disobedient at home and school, gets into fights, does not feel guilty after doing something he shouldn't, breaks rules at home and school, and lies or cheats." Dr. DeLong testified that she did not discuss Xan's responses to these questionnaires with the child.

Xan's teacher did not report such problems, other than that he "[does not] listen in class." She did, however, advise the worker that Xan was in danger of failing fifth grade. She reported to the worker that Xan was "a very smart boy but he's just lazy." Although mentioning that his hair can get "a bit long," she expressed no other concerns.

Dr. DeLong opined that Xan "was being impacted by the conflict between his parents, both the physical violence that he was exposed to as well as just wanting them to be together and less fighting in the home, and also impacted by his mother's drinking." When asked whether she could say that Xan had been "exposed to domestic violence to a reasonable degree of psychological certainty," Dr. DeLong replied, "Yes, because he told me that himself."

Dr. DeLong also testified about what R.C. told her with regard to the incident that precipitated the referral to the Division. According to her, R.C. said that R.T. had "jumped on him and that he pushed her and the neighbors called the police and there was in his words 'grabbing and grappling' and that she ended up with red on her chest." In response to a question regarding her recommendations for the family, Dr. DeLong testified that she recommended that in the event of relapse by R.T. that all contact be supervised and that Xan get counseling to "address the symptoms that he reported, as well as to develop better coping skills."

Although Dr. DeLong did not testify regarding her findings as to R.C., she concluded in her report that R.C. "did not present problems that would interfere with his ability to provide adequate parenting." She also concluded that "[o]ther than his assault charge from 20035, there is insufficient evidence to indicate a pervasive problem with anger management or impulse control. His current difficulties appear limited to his relationship with [R.T.]."

R.C. testified that after R.T. started drinking in 2009, that their "home started falling apart. Things became very unstable."6 R.C. maintained that he tried to get R.T. help through Alcoholics Anonymous but that "she didn't want to seek help" at that time. The Division's contact sheets state that R.C. told the worker that he was trying to leave the apartment when R.T. "yanked his laptop bag [off his shoulder] to prevent him from leaving, and she fell and hurt her face on the floor. [R.C.] denied hitting her. [R.C.] stated that the neighbors called the police and he was arrested since R.T. had a mark on her face." In response to direct questions by the ALJ, R.C. denied ever hitting R.T. in front of Xan or that they had "tussled on the floor" in his presence. He did admit that there was a possibility that Xan had witnessed him "pushing her off me."

R.T. did not testify at the hearing. Her version of the encounter that sparked the investigation is found only in the Division's contact sheets admitted in evidence. The worker wrote that R.T. told her that R.C. "pushed her arms, out of his way, and that she fell and that he kicked her on the face with his boot and she had marks to her face." The worker reported that R.T. claimed she lied when she told the judge that R.C. did not strike her. R.T. explained that she "loves [R.C.] and that she lied for him" because she "did not want [R.C.] to go to jail."

Although telling the worker that she and R.C. "have had domestic violence [problems] for years," R.T. estimated that "the last time they got into a physical fight was about three years ago." R.T. admitted that over the last six months, she had been regularly going out to drink after work and coming home drunk. While claiming that "she [was] not the only one to blame" for the problems in her relationship with R.C. "as [he] has cheated on her many times," she admitted that "her drinking has taken a toll on them." Although R.T. did not testify at the OAL hearing, she submitted a letter that was entered into evidence stating that she and R.C. were no longer together but that

[s]ince last year[s'] situation with [F]amily Services, our parenting, communication, and decision making greatly approved [sic]. I also went to [a] drug [and] alcohol program that I finished in Nov./2010. I feel domestic violence isn't an issue, I don't find [R.C.] to be aggressive nor violent. Any other questions or concerns please feel free to call me

at [ ]. I support [R.C.] with this case and feel this or these situations are wrongly accused.

R.C. presented proof that the Family Part entered an order on June 3, 2010, three months after the Division began its investigation, six months after the incident that precipitated it, and the day after the Division substantiated him for neglect, directing that:

with the consent of DYFS, temporary sole legal and physical custody of the two minor children [Alexis] D.O.B. [redacted] and [Xan] D.O.B. [redacted] is granted to [R.C.]. [R.T.] is to have only supervised parenting time with the children. [R.T.] is to continue counseling through DYFS and is to immediately inform DYFS of her new address. [R.C.] has sole possession of [the family's apartment].

The parties did not dispute that the Division closed its case in January 2011, and that R.T. moved with the children to Pennsylvania in July 2011, having regained primary physical custody through agreement with R.C. R.T. and R.C. continue to share legal custody and R.C. sees his children regularly and contributes to their support.

The ALJ issued a written opinion in which he summarized the testimony and reviewed the applicable law. He found that

neither of the children actually observed the incident that gave rise to the charges of neglect. [Xan] was at school and [Alexis] was in her room asleep. [R.C.], fully aware that his statements would result in a DYFS referral, forthrightly disclosed the alcohol abuse in his home and the contentious relationship between R.T. and him. The caseworker reports confirmed [R.C.'s] testimony that he wanted help for his family. There is no evidence that [R.C.] engaged in conduct that was "willful or wanton." There is no evidence that he had "knowledge that injury [was] likely to, or probably [would], result" from any of his actions. [See G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999).] In fact, the evidence supports his assertion that any actions that might be construed as "domestic violence" resulted from his paramour's alcohol abuse and primarily at her instigation.

Further, under the totality of the circumstances, the Superior Court awarded temporary[,] full legal[,] and physical custody of the children to [R.C.]. [R.C.] voluntarily surrendered physical custody to R.T. a year later when she completed an alcohol treatment program. She also moved to Pennsylvania, where she has the support of her family. This is consistent with Dr. DeLong's report that [R.C.'s] only issue was with R.T.'s alcohol abuse.

There is no dispute that R.T. abused alcohol and that she herself was the subject of abuse as a child. There is no dispute that she did not receive sufficient treatment for the abuse she suffered. There is no dispute that the conflicts that arose between [R.C.] and [R.T.] were largely attributable to her alcohol abuse. [R.C.] presented documents, purportedly from R.T., which mitigate [R.C.'s] culpability in this case. There was no dispute about the authenticity of the documents.

During the investigation [Xan] confirmed his mother abused alcohol. He confirmed that his father got angry because he disapproved of R.T.'s drinking and smoking. He also reported that another cause of conflicts between [R.C.] and R.T. was R.T.'s accusations that [R.C.] was not faithful to her. Unfortunately, [Xan] was not present in court to testify. Therefore, I did not have the opportunity to observe his demeanor or to assess the veracity of his reports.

Dr. DeLong concluded that [Xan] had been affected by the conflict between his parents. This is certainly to be expected. However, she also concluded that [R.C.'s] conduct was the result of R.T.'s alcohol abuse. There is no evidence that he engaged in an "intentional act [which] produced an unintended result." Nor is there evidence that he engaged in conduct that a "reasonable person" would believe "recklessly create[d] a risk of serious injury to [his] children." [G.S., supra, 157 N.J. at 181.]

The ALJ concluded:

The relevant facts are undisputed. R.C. had disputes with his paramour. He denied hitting her or engaging in any domestic violence in the presence of his children. Recognizing that the intent of Title 9 is to protect children against acts that threaten their welfare, there is no evidence to support a conclusion that R.C. neglected his children or engaged in domestic violence in their presence. [The Division] has not demonstrated by a preponderance of the credible evidence that the children's health, safety, welfare or development was in danger, or will be in danger, or has ever been in danger. [The Division] has not demonstrated that R.C. acted with reckless disregard for the safety of others. McLaughlin [v. Rova Farms, Inc., 56 N.J. 288, 308 (1970)].

The Director rejected the ALJ's findings and, instead, found "that the evidence in the record supports a finding that R.C. neglected his son, [Xan]." The Director relied on Dr. DeLong's testimony regarding "the negative impact [Xan's] parents' domestic violence had on him." She wrote that "[Xan's] statements to Dr. DeLong and to the DYFS caseworker lead me to conclude that the substantiation of neglect should be affirmed."

The Director distinguished this case from New Jersey Division of Youth & Family Services v. S.S., 372 N.J. Super. 13, 22, 26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), in which we held that it is impermissible to simply assume that witnessing domestic violence has so negative an effect on a child as to always warrant a finding of abuse, especially against the battered victim, because "[h]ere, R.C. is the abuser and it was his willful actions that exposed [Xan] to domestic violence." The Director further noted that unlike in S.S., here the Division presented proof that Xan suffered actual harm by witnessing his mother's alcohol abuse and the domestic violence between his parents. Although noting that "Dr. DeLong did not attribute [Xan's] psychological issues to one cause over another," the Director found that Dr. DeLong "simply stated that [Xan] had been negatively impacted by both experiences, so both parents should be held accountable for [Xan's] mental state."

The Director specifically rejected the ALJ's finding that R.C. did not engage in domestic violence. The Director noted that

Dr. DeLong also testified that [Xan] was exposed to domestic violence to a reasonable degree of psychological certainty. There is no evidence that [Xan] was dishonest in his statements to the Division caseworker or to Dr. DeLong. To find R.C.'s denial of domestic violence credible, one would need to determine that the reports and testimony of both [the caseworker] and Dr. DeLong were not credible. There is no evidence that either the caseworker's or Dr. DeLong's reports or testimony were in any way discredited by the ALJ. Therefore, for the ALJ to claim that R.C. did not engage in domestic violence in his children's presence is incorrect and not supported by the facts and evidence presented.

[Citations omitted.]

The Director further rejected the ALJ's "focus on R.T.'s alcoholism, rather than on R.C.'s actions." Specifically, the Director opined that:

R.T.'s alcoholism is not the subject of this inquiry and for the ALJ to paint R.T. as the instigator of each dispute and R.C. as merely the concerned husband and innocent participant is fundamentally wrong based on the evidence presented. R.C. is responsible for his own uncontrolled and inappropriate behavior towards R.T. on the multiple occasions he became aggressive with her. Although R.C. denies ever hitting R.T., or engaging in domestic violence in the presence of his children, these self-serving statements are unsupported by the evidence. The family has a history of domestic violence, as seen in the psychological report. On the date of the incident that initiated this investigation, the dispute between R.C. and R.T. became so loud that the police were called. It should be noted that this was not the first time the police were called to intervene in a domestic violence dispute between R.C. and R.T. There was a previous incident a month prior to R.T.'s May 2010 interview with Dr. DeLong where R.T. shared that R.C. kicked her in the face with his boot after they got into a verbal and physical argument. The police were called. R.T. also told Dr. DeLong that R.C. has a bad temper. Further evidence of R.C.'s aggressive nature is seen in Dr. DeLong's report, where R.C. admitted that he got into a fight with a friend in 2003, received an assault charge, and had to complete mandatory anger management counseling as a result. Moreover, according to the reports, R.T.'s alcoholism was not the only issue R.C. and R.T. fought over, as R.T. accused R.C. repeatedly of being unfaithful to her. To solely castigate R.T., while diminishing R.C.'s role, distorts the truth and is contrary to the facts. One cannot ignore R.C.'s involvement in the domestic violence with R.T. While R.T.'s drinking may have been a problem, there were several other ways R.C. could have handled it that did not need to involve physical violence. One effective way would have been to seek treatment for her, which appeared to work. Because he failed to resort to more passive measures, I find that R.C. willfully and wantonly engaged in aggressive violent behavior with R.T. while his son was present, which constituted neglect.

The Division, of course, bears the burden of proving abuse, which it must do by "a preponderance of the evidence" at a fact-finding hearing. N.J.S.A. 9:6-8.46(b)(1). In such a hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2); see also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). Although hearsay evidence is generally admissible in the OAL, "some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness." N.J.A.C. 1:1-15.5(b); see also Weston v. State, 60 N.J. 36, 51-52 (1972).

We review an administrative adjudication to determine "'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." Mayflower Securities Co. v. Bureau of Securities in the Div. of Consumer Affairs of Dep't of Law & Pub. Safety, 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Although the agency head has the ultimate authority to adopt, reject or modify the ALJ's initial decision on review of the record created in the OAL, N.J. Dep't of the Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 515 (App. Div. 1983), when the ALJ's findings are based on the credibility of witnesses whose testimony and demeanor the ALJ had the opportunity to assess at the hearing, "generally it is not for us or the agency head to disturb that credibility determination." H.K. v. State, 184 N.J. 367, 384 (2005). Indeed, an agency head may not reverse an ALJ's factual findings based upon the credibility of a lay witness without demonstrating that the ALJ's findings were "arbitrary, capricious or unreasonable or . . . not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c).

Applying those standards to this matter, we conclude that a remand to the agency is in order. Although the ALJ did not make explicit credibility findings, reading his decision makes clear that he found R.C. a credible witness and accepted as true his statements that Xan witnessed no more than him pushing R.T. off him when she was drunk. The ALJ found that R.C. "forthrightly disclosed" his family's issues to the counselor, "fully aware that his statements would result in a DYFS referral." He found that "the caseworker reports confirmed [R.C.'s] testimony that he wanted help for his family," and that "the evidence supports his assertion that any actions that might be construed as 'domestic violence' resulted from his paramour's alcohol abuse and primarily at her instigation." The ALJ concluded that "there is no evidence to support a conclusion that R.C.

. . . engaged in domestic violence in [his children's] presence."

The Director was not free to reject those findings absent a showing that they were "arbitrary, capricious or unreasonable or . . . not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c). "When an ALJ has made factual findings by evaluating the credibility of lay witnesses, the [agency head] may no longer sift through the record anew to make [her] own decision, which will be affirmed if it is independently supported by credible evidence. Cavalieri v. Bd. of Trs. of Pub. Emp. Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004).

In rejecting the ALJ's credibility findings, the Director deemed R.C.'s denials of domestic violence self-serving. The Director based that decision, in part, on the report of a domestic violence incident separate from the one all agree was not witnessed by the children which sparked the Division's investigation. The Director's finding regarding this other incident, however, appears to be a clear misreading of the record. The Director states that the other incident related by R.T. to Dr. DeLong "where R.T. shared that R.C. kicked her in the face with his boot" and "the police were called," occurred "a month prior to R.T.'s May 2010 interview with Dr. DeLong." That information appears to be taken from Dr. DeLong's report of her review of the Division's records. It matches precisely the caseworker's report of a March 25, 2010 interview the caseworker conducted of R.T. in which R.T. was relating the details of the incident that resulted in R.C.'s arrest in January 2010 for which the children were not present.7 There is nothing in the record to suggest that there were two such incidents or that there was any physical altercation between R.C. and R.T. after the Division's involvement in March 2010. The only other police report admitted in evidence, reflecting an incident that occurred the week before the one that precipitated this matter, notes that it was a verbal dispute with "no physical signs of domestic violence" observed. Moreover, the "victim" listed on that report is R.C. Accordingly, there appears no support for the Director's finding regarding an incident of domestic violence occurring "a month prior to R.T.'s May 2010 interview with Dr. DeLong.

Because we cannot judge the effect this error had on the Director's determination to reject the ALJ's credibility findings, we are constrained to reverse and remand for reconsideration. In reconsidering her determination, the Director should explicitly identify the evidence she deems corroborative of Xan's statements that he witnessed domestic violence between his parents.

Although N.J.S.A. 9:6-8.46(a)(4) allows "previous statements made by the child relating to any allegations of abuse or neglect [to] be admissible in evidence," the statute further provides "that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." While "[t]he most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence[,] . . . corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence 'need only provide support for the out-of-court statements.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).

We note, in this regard that leaving aside the inconsistency of R.T.'s statements as to whether R.C. had ever hit or kicked her, R.T. did not testify at the hearing, and her out-of-court statements are not admissible against R.C.8 See N.J.R.E. 803(a)-803(b); N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 421 n.5 (App. Div. 2014) (noting that out-of-court statements to the caseworker made by wife and brother of the defendant were not admissible against defendant for truth of matters asserted).

Reversed and remanded for reconsideration in accordance with the direction provided in this opinion. We do not retain jurisdiction.

1 In June 2012, the Division of Youth and Family Services was reorganized and was renamed the Division of Child Protection and Permanency. L. 2012, c. 16. We refer to it as the Division or DYFS in this opinion.

2 We refer to the children by fictitious names in order to protect their privacy.

3 The parties' dispute whether this counseling was "court ordered" or whether R.C. sought assistance for his family "on his own." The caseworker conceded on cross-examination that she was not aware of any directive requiring counseling, and there is no court order to that effect in the record. There appears, however, no disagreement that the couple's altercation and R.C.'s arrest is what precipitated the couple's contact with a therapist. Accordingly, we view the dispute as immaterial.

4 R.T.'s evaluation is not part of this record and there was no testimony regarding her evaluation at the OAL hearing.

5 R.C. reported that he had been charged with assault following a fight with a friend and completed mandatory anger management counseling.

6 R.C. represented himself at the hearing and his direct examination was conducted by the ALJ.

7 This incident is related in that section of Dr. DeLong's report of her evaluation of R.C. entitled "Record Review." To the extent that this information may have come from Dr. DeLong's clinical evaluation of R.T., that report was not introduced at the OAL hearing and Dr. DeLong did not testify about her evaluation of R.T.

8 There is no dispute that the Division's contact sheets and case summaries were admissible. See N.J.S.A. 9:6-8.46(a)(3); N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346-47 (2010). Notwithstanding, embedded hearsay statements within those reports must still meet the admissibility requirements of N.J.R.E. 805. Cf. N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 132 (App. Div. 2010) (noting that Rule 5:12-4(d) does not "create an exception to the prerequisites for the admission of a business record set forth in N.J.R.E. 803(c)(6)").