DIVISION OF CHILD PROTECTION AND PERMANENCY - v. E.B -

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NOT FOR PUBLICATION WITHOUT THE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 DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Petitioner-Respondent,

v.

E.B.,

Respondent-Appellant.

__________________________________________

February 10, 2016

Argued January 5, 2016 Decided

Before Judges Yannotti and St. John.

On appeal from New Jersey Department of Children and Families, Division of Child Protection and Permanency, Docket No. AHU 12-0137.

Jason E. Foy argued the cause for appellant (Foy & Seplowitz, L.L.C., attorneys; James B. Seplowitz, on the brief).

Nicole E. Adams, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Adams, on the brief).

PER CURIAM

E.B. appeals from a final decision of the Director of the Division of Child Protection and Permanency (Division), which found that he abused or neglected his minor child, J.B. We reverse.

I.

We briefly summarize the relevant facts, drawn from the testimony and evidence presented at the hearing in this matter. E.B. and D.E. are the parents of J.B., who was born in 2005. They separated when J.B. was one and one-half years old, but shared custody of J.B. On September 14, 2011, E.B. picked J.B. up at school, and drove with him to the house owned by defendant's mother in Paterson, where they stayed briefly. E.B. and J.B. then went to E.B.'s home. Upon their arrival, E.B. began to prepare dinner and instructed J.B. to do his school work.

Later, E.B. looked into the dining room to check on J.B. He noticed that J.B. was not doing his homework, but was in another room playing. E.B. told J.B. that he had to do his homework before anything else. J.B. got his books and began to do his homework. He sensed that J.B. did not want to do his school work. E.B. again directed J.B. to do his work, and returned to the kitchen.

C.S., a woman who was dating E.B., arrived at the house around 5:00 p.m. C.S. had been E.B.'s friend for a period of time, but when her relationship with E.B. became romantic, she noticed a change in J.B.'s behavior and attitude toward her. On several occasions when she was present, J.B. misbehaved and E.B. had to verbally reprimand J.B. When C.S. arrived at the house, E.B. told J.B. to greet her. He ignored E.B.'s direction. He also did not do his school work correctly. E.B. erased the incorrect answers and instructed J.B. to do that part of the assignment over.

E.B. returned to the kitchen and spoke with C.S. J.B. was in the dining room doing his homework. E.B. repeatedly told J.B. to finish his homework, but J.B. refused. At that point, E.B. took J.B. upstairs and verbally reprimanded.

Then, E.B. pulled J.B.'s pants down, intending to slap the boy on his buttocks. J.B. was moving around, trying to get away. E.B. missed in his first attempt to slap J.B. on the buttocks, and he was not sure where the errant slap landed. At the hearing, E.B. conceded that it was possible his hand could have landed on J.B.'s face.

Afterwards, E.B. went downstairs and told C.S. he had to use corporal punishment because J.B. was not listening to him. C.S. decided to leave, believing that J.B. would behave better if she left. She testified, however, that while E.B. and J.B. were upstairs, she did not hear anything indicating that J.B. was being hurt. After C.S. departed, J.B. redid his homework, and completed the assignment correctly.

E.B. and J.B. then ate dinner together without incident. E.B. said he did not notice any marks on J.B. or any sign that he had been hurt. Afterwards, E.B. called D.E. and she told E.B. to drop J.B. off at her mother's house. E.B. informed D.E. that he had to spank J.B. because he misbehaved.

E.B. also told D.E.'s mother about the incident when he dropped J.B. off at her house. E.B. explained why the discipline was necessary, and J.B. started to cry. E.B. went to work, and later received a call from D.E., who said there was a mark on J.B.'s face. E.B. told her that, if there was a mark on the boy's face, he did not cause it intentionally.

Later that evening, D.E. took J.B. to the Teaneck Police Department (TPD), and she reported that E.B. had struck J.B. on the face and buttocks several times. Officer Michael Danenza received the initial report. He observed a red hand print on J.B.'s face and took photos of the marks. He noted, however, that there was no sign of any blood, cuts or welts. He also noted that J.B. did not appear to be in pain or complain of pain. D.E. declined medical attention for the child.

The matter was referred to TPD Detective Edward Lievano. He noticed a mark on the boy's face, but did not see any welts or other sings of injury anywhere else on the child's body. Lievano arranged to have J.B. interviewed by detectives at the Bergen County Prosecutor's Office (BCPO). Lievano did, however, briefly question J.B. about what had happened.

J.B. told Lievano that, "Daddy hit me." Lievano also spoke with D.E., who claimed that E.B. had struck J.B. with a belt. J.B. had made a similar accusation, but E.B. denied that he used a belt when disciplining J.B. The law enforcement officers who investigated the incident eventually concluded the allegation was an embellishment and not corroborated.

On September 16, 2011, Lievano contacted E.B., who immediately responded to Teaneck police headquarters. Before meeting with E.B., Lievano determined that E.B. had no prior history of child abuse or any other involvement with the criminal justice system that was of significance to the investigation. Lievano also spoke with someone at the local high school, who knew E.B. and described him in a positive light.

Lievano read E.B. his Miranda rights.1 E.B. waived his rights and elected to give a statement. According to Lievano, E.B. was cooperative and forthcoming. He admitted he disciplined J.B. by slapping him on the buttocks, but denied that he intentionally struck the boy's face. E.B. conceded he may have inadvertently hit J.B. on the face, thereby causing the marks. Although Lievano thought that the slap on the face was likely accidental, he charged E.B. with fourth-degree child abuse, and released him on his own recognizance.

At the hearing, Lievano testified that he would have charged E.B. with a lesser offense, if such a charge had been available. He said his primary goal in charging E.B. was to get the Division involved, and to diffuse what he perceived to be a volatile relationship between the boy's parents. Lievano referred the matter to the BCPO. Later, E.B. was admitted to the Pretrial Intervention Program, and the criminal charge was dismissed.

Aisha Sanford, one of the Division's investigators, spoke with D.E.'s mother, who said she was surprised by the incident because E.B. is a good father. On September 16, 2011, Sanford spoke with J.B. at school, in the presence of the school's principal. J.B. told Sanford that because he had been misbehaving, E.B. smacked him on the face with his hand, and hit him on the buttocks with the metal part of his belt. Sanford observed a faint fingerprint mark on J.B.'s face. She determined that medical attention was not necessary because the mark was fading. The school principal told Sanford that J.B. was a good student, and she did not have any concern about abuse or neglect.

Sanford went to the TPD and spoke with Lievano and another detective. She confirmed that there were no marks or bruises on J.B.'s buttocks. Lievano told Sanford that E.B. was cooperative and willing to attend parenting classes. Sanford later met with D.E. She said she had also been experiencing discipline problems with J.B. Sanford investigated E.B.'s home. She found it to be in good order and a safe environment for children. Sanford believed that a parenting class would address any concerns the Division might have.

II.

On January 11, 2012, the Division notified E.B. that it had substantiated the finding of abuse. E.B. appealed that determination, and the matter was referred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). At the hearing, the Division presented testimony from Officer Danenza, Detective Lievano, and Sanford. E.B. testified on his own behalf, and presented testimony from Jo.B., his other son; C.S.; and his friend, E.D., who stated that E.B. was a good father, who disciplines his children by using verbal commands.

Thereafter, the ALJ issued an initial decision finding that E.B.had not employed excessive corporal punishment when he disciplined J.B. on September 14, 2011. The ALJ found that E.B. spanked J.B. on his buttocks, but left no marks. The ALJ noted that there was no indication that E.B. had used a belt, as J.B. claimed. The ALJ stated that there were marks on J.B.'s face, which were caused when E.B. struck the child's face with an open hand. The ALJ said E.B. had credibly testified that he accidentally struck J.B. on the face, while attempting to spank him on his buttocks.

The ALJ stated, however, that the marks on J.B.'s face did not require medical attention or cause permanent injury. The ALJ also stated that several witnesses had called E.B. a good father to both of his children, and they had never witnessed him using corporal punishment. The ALJ observed that E.B. was remorseful when he learned that he accidentally struck J.B. on the face.

In addition, the ALJ pointed out that the Division believed a parenting class would adequately address the situation. E.B. had attended and completed the class. The ALJ concluded that the corporal punishment employed by E.B. was not excessive. He described E.B. as a "caring and loving father" and stated that this incident was "an aberration to this family." The ALJ concluded that the Division had not substantiated physical abuse.

On July 8, 2014, the Director issued a final decision in the matter, rejecting the ALJ's decision and affirming the substantiation of abuse. The Director determined that the ALJ's findings and conclusions were inconsistent with the evidence in the record. The Director stated that the injury on the left side of J.B.'s face resulted from E.B.'s administration of excessive corporal punishment.

The Director noted that E.B. did not dispute that the marks resulted from his hitting J.B. on the face. She also noted that J.B.'s face had redness and marks in "dangerous proximity to vital organs in the facial area." The Director concluded that, based on the evidence presented at the hearing, J.B.'s physical condition had been impaired.

The Director explained that "striking a six-year-old child in the face, with sufficient force to leave the imprint of three fingers and cause welts and bruises qualifies as abuse." The Director further found that E.B. "knew or should have known that his actions of striking a young child with such force would cause physical injury and expose the child to emotional injury."

The Director stated that it was irrelevant whether E.B. intended to hurt J.B. or that the injury was caused inadvertently when he attempted to spank J.B. The Director explained that E.B.'s intention to hit J.B. "illustrates disregard for the consequences" and defendant's conduct was "grossly negligent."

In addition, the Director determined that E.B. acted recklessly, particularly given "the tender age of J.B.," and that the blow to J.B.'s face was in close proximity to his eye and ear. The Director also disagreed with the ALJ's finding that E.B. had never used corporal punishment before this incident, as E.B. had admitted during the hearing that he had "popped" J.B. before. Finally, the Director concluded that E.B. failed to exercise a minimum degree of care when he physically disciplined J.B. with sufficient force to cause welts and bruising to his left cheek. This appeal followed.

III.

On appeal, E.B. argues that the Director's rejection of the ALJ's decision is arbitrary, capricious and unreasonable. He contends that a single, inadvertent slap on the face is not excessive corporal punishment. He contends that this incident was an aberrant act of a loving father, whose name does not belong on the central registry of persons determined to have abused or neglected a child.

We note initially that this court's review of final decisions of administrative agencies is strictly limited. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). We review administrative decisions to determine whether: (1) the decision violates express or implied legislative policies; (2) is unsupported by substantial evidence in the record; and (3) the agency made a decision "that could not reasonably have been made on a showing of the relevant factors." In re Proposed Quest Academy Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). We note, however, that we owe no deference to an agency's interpretation or application of a statute, if it is contrary to the language of the statute or "'undermines the Legislature's intent.'" Dept. of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 302 (2011) (quoting Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008)).

It is well established that "[a]buse and neglect cases are generally fact sensitive. Each case requires careful, individual scrutiny." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The term "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4) to include a child, younger than eighteen years of age,

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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (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.

The statute does not preclude corporal punishment. P.W.R., supra, 205 N.J. at 36. Rather, "by qualifying the prohibition with the term 'excessive,' the statutory language plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment." Id. at 36.

Thus, "a parent may inflict moderate correction such as is reasonable under the circumstances of a case." N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div.) (internal quotation marks and citation omitted), certif. denied, 208 N.J. 355 (2011). In determining whether the particular corporal punishment employed is excessive, a court must evaluate the harm suffered by the child rather than the mental state of the person alleged to have abused the child. Id. at 511 (citation omitted).

We are not convinced that the record supports the Director's conclusion that E.B. employed excessive corporal punishment when he disciplined J.B. on September 14, 2011. The ALJ found that E.B. did not intend to strike the boy in the face, and he slapped J.B.'s face inadvertently. The ALJ specifically found that E.B. credibly testified that he struck the boy in the face accidentally. The Director did not find to the contrary.

Moreover, the evidence established that while E.B.'s slap left red marks on the child's face, there were no welts as the Director suggested. The child did not require medical attention, and when the Division's case worker observed the marks on September 16, 2011, she noticed that the redness of the marks was fading. There is no evidence that the slap left any permanent mark or injury.

Our decision in K.A. supports the conclusion that the evidence here fails to support the Director's finding that E.B. employed excessive corporal punishment. In K.A., the parent punched her eight-year-old daughter on the shoulder four or five times, causing several bruises. K.A., supra, 413 N.J. Super. at 506. The child suffered from autism. Ibid. She had been disciplined and told to remain in her room, but she had disregarded the parent's directive. Ibid. The ALJ found that this was an isolated incident, and did not rise to the level of excessive corporal punishment. Id. at 508.

The Director reversed the ALJ's decision, and the parent appealed. Id. at 508-09. We held that the Director's finding that the parent had abused the child was "factually unwarranted and legally unsustainable." Id. at 513. We observed that a single act of violence against a child can be deemed excessive corporal punishment. Id. at 511.

We emphasized, however, that such situations would include those in which "the child suffers a fracture of a limb, a serious laceration, or other event where medical intervention proves necessary, . . . [if] the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm would result from the punishment inflicted." Ibid. We explained that the Director erred by finding abuse by the parent because, although the blows were undoubtedly painful to the child, they did not cause any permanent harm, did not require medical attention, and "were not part of a pattern of abuse." Id. at 512.

Here, as in K.A., the child did not sustaine any permanent injury. E.B.'s slap caused red marks on the child's face and, while the blow may have been painful to J.B., there was no laceration or bruising that required medical attention. Moreover, unlike the punishment in K.A., which was intentionally inflicted, E.B.'s errant slap to J.B.'s face was accidental. In addition, although E.B. said he had "popped" the boy before, there was no evidence that the punishment inflicted here was part of any pattern of abuse. We conclude, as we concluded in K.A., that a finding of abuse or neglect in this matter was "factually unwarranted and legally unsustainable."

The Division argues that our decision in Dep't of Children & Families v. C.H., 414 N.J. Super. 472 (App. Div. 2010), supports the Director's determination in this case. In C.H., a mother struck her five-year-old daughter several times across the face, back and buttocks with a paddle. Id. at 476. The child sustained "red demarcations" on the right side of her face, which were "three to four inches long." Ibid. The child also had red scratches on the left cheek and elbow, "as well as a greenish demarcation on the middle of her back." Ibid.

The child did not require medical attention, and there was no evidence of any residual scarring. Id. at 476-77. However, there was evidence that the parent had used excessive force in disciplining the child, and that the discipline was inappropriate. Id. at 477. There also was evidence of a pattern of what the agency found to be "'questionable'" corporal punishment. Id. at 479.

We are convinced that the Division's reliance upon C.H. is misplaced. In C.H., the child had been struck numerous times and sustained multiple injuries, including red scratches. Moreover, the parent in C.H. had used a paddle, disciplined the child without reasonable justification, and had a history of using physical discipline on the young child. In this case, the child sustained a singular red mark to the face, which was inflicted accidentally. The discipline was not imposed irrationally, and there was no pattern of physical abuse.

We also conclude that the record does not support the Director's view that E.B.'s action otherwise constitutes a failure to exercise a "minimum degree of care" because E.B. inflicted or allowed to be inflicted "harm, or [the] substantial risk thereof." N.J.S.A. 9:6-8.21(c)(4)(b). "[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dept. of Human Servs., 157 N.J. 161, 178 (1999) (citation omitted).

Here, the Director found that E.B.'s actions were grossly negligent or reckless, because he struck a six-year-old child with force in the face, near the child's eye and ear. The Director stated that E.B. knew or should have known that his action could have caused physical injury and exposed the child to emotional harm. We are convinced, however, that even if the evidence supports a finding that E.B. acted negligently in the circumstances, his actions cannot reasonably be characterized as grossly negligent or reckless.

Accordingly, we reverse the Director's determination that E.B. abused or neglected J.B., and direct that E.B.'s name be removed from the child abuse registry maintained by the Division pursuant to N.J.S.A. 9:6-8.11.

Reversed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).