Opinion
DOCKET NO. A-1240-12T1
04-17-2015
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent, v. U.B., Respondent-Appellant.
Emily L. Gosnell, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Ann Avram Huber, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from New Jersey Department of Children and Families, Docket No. AHU-08-0431. Emily L. Gosnell, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Ann Avram Huber, Deputy Attorney General, on the brief). PER CURIAM
U.B. (Uma) appeals from a September 20, 2012 final agency decision of the Director of the Division of Child Protection and Permanency (Division) finding she abused her ten-year-old stepson, K.B. (Kevin), and adding Uma's name to the child abuse registry as a result her of using excessive corporal punishment. After the Division substantiated abuse by Uma, she appealed and an administrative law judge (ALJ) initially reversed the Division's substantiation of abuse, finding Uma's response was understandable, in light of the child's use of foul language and inappropriate behavior. The Division filed exceptions to the ALJ's decision, pursuant to N.J.A.C. 1:1-18.4(b)(1). Uma did not file a response and the Director issued her decision reversing the ALJ's determination and findings. On appeal, Uma argues she did not use excessive corporal punishment and the ALJ erroneously admitted a Division screening summary into evidence.
We have fictionalized the names of the parties.
On June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.
The Division forwards findings of abuse to a central registry maintained by the Department of Children and Families. N.J.S.A. 9:6-8.11.
We have considered these arguments, carefully reviewed the record and the applicable principles of law. We affirm, substantially for the reasons stated in the Director's September 20, 2012 final agency decision.
I.
At the time of the incident, Kevin's mother, K.B. (Karen), and father, C.B. (Charles), were divorced and shared legal custody. Kevin resided with Charles and Uma on Mondays and Tuesdays. Karen would pick Kevin up at school on Wednesdays.
Uma is a former employee of the Division of Youth and Family Services and the Division of Developmental Disabilities. Kevin had an individualized education program in school, suffered from attention deficit disorder and had a hard time focusing.
The material facts are not disputed and were accurately summarized in the Director's decision, based on the ALJ's findings. The Director stated:
On Tuesday, November 13, 2007, [Kevin] was refusing to brush his teeth. When the child resisted [Uma's] efforts to brush his teeth for him, [Uma] grabbed his arms and "took him to the floor" using a "basket hold," which she learned when employed at a developmental disabilities facility.
[Uma] described a "basket hold" as follows:
It's when you're standing behind someone and you take one arm and cross it over their chest and the other one across their chest and take them down, you have them leaning on you; you put your leg
in so that they have some support and you take them down.
[Uma] advised that, according to the training she received, it was appropriate to use this hold when a client was trying to hurt her or himself or another client.
[Uma] physically restrained [Kevin], straddling him with her legs pinning his arms to the floor, and forcibly brushed his teeth. [Kevin] squirmed and screamed at [Uma] to get off him, calling her a "pussy" and a "fat bitch." In response to this offensive language, [Uma] struck [Kevin] with an open hand across the face two times and reprimanded him not to speak to her that way. [Uma] struck [Kevin] a third time when he spit out the toothpaste in his mouth and some of it landed on [Uma's] face. [Uma] then called [Charles] at work to come drive [Kevin] to school and [Charles] arrived home 10 minutes later. Before leaving with the other children, [Uma] stated to [Charles] and [Kevin], "he's going to have to respect the rules and respect the adults in this house or he's not gonna be happy here." [Charles] made [Kevin] apologize to [Uma], spoke with him about the incident, and spanked him on the buttocks with a belt before driving him to school.
Uma claimed she did not intend to hurt Kevin, but that she was only disciplining him for his inappropriate language and behavior. She also claimed she was a one "hundred percent sure" there were not any marks on Kevin's face after the incident. Kevin went to school that day and no one at the school said anything about his injuries. However, Charles noticed a mark on the child's face when he drove Kevin home from school. Kevin told him that it was caused by Uma and Charles asked Kevin to tell his mother that the mark was a result of his falling at the playground.
Karen picked Kevin up from school the next day and inquired about the injury to his face, which Kevin initially said he got while playing football. Karen contacted Charles who said the injury occurred the previous day and that he put ice on it, but he did not disclose any additional information.
In a later conversation, Charles disclosed to Karen that Uma slapped Kevin because he refused to brush his teeth and because he used profanity. Karen also spoke to Uma who claimed she did not hit Kevin hard. Uma and Charles both alleged Kevin bruises easily.
Kevin's maternal grandmother, A.M. (Anne), was suspicious about Kevin's injury being from football and asked Kevin what really happened to his face. He told Anne that Uma pushed him, slapped him three times and "forcibly brushed his teeth while pinning him to the floor." Kevin explained he was on his back on the floor and "could[ no]t swallow so he spit out the mixture of saliva and toothpaste." Kevin also admitted he called Uma the "B" word and the "P" word. Anne confronted Uma and Uma replied there is "discipline in this house."
Anne took Kevin to the local police station where a police officer noted there was "obvious bruising to the child's face." The police took photographs on November 14, 2007, thirty-six hours after the incident and after ice was applied. The pictures showed "redness, marks and bruising, and illustrate[d] the dangerous proximity of the blows to the child's eye." The bruising was approximately one inch in width and two inches in length. Uma was charged with fourth degree child endangerment and her bail required a no contact provision. Uma has not seen Kevin since the incident.
The police made a referral that night to the Division. The referral stated Kevin's face was black and blue from being struck by Uma the previous day. During the ensuing investigation, Uma refused to give a statement, but Kevin reported to a Division worker that Uma pushed him to the ground, brushed his teeth for him "hard" and hurt his gums. He told the Division worker he went to his room but Uma then came to his room and slapped him three times and punched him once on the head.
Karen told a Division worker that Kevin has complained about Uma in the past and had previously returned from visiting Charles and Uma with bumps and bruises. Karen was never suspicious of the injuries until she learned Charles had told Kevin to lie about this latest incident. The same report indicates Karen felt guilty because Kevin made prior allegations that Uma hit him in the past.
After three days, the Division reported the bruise was swollen and covered fifty percent of the left side of Kevin's face. In addition, Kevin still had not seen a physician for his injuries, so the Division recommended Kevin be X-rayed.
Ultimately, the Division substantiated Uma for abuse. After she appealed, a hearing was scheduled before the ALJ. At the hearing, the ALJ allowed the introduction of a Division screening summary, which is documentation of the referral received over the phone by a Division hotline screener. The screening summary is the "initial intake of the allegations" and is then distributed to an on-call Division worker. The summaries are generated "near or at the time referral is called into the [D]ivision" and are made in the regular course of business. The screening summary was prepared by one screener and then reviewed by a supervisor. The Division worker who was on-call on November 14, 2007, testified at the hearing that the screener read the summary to him over the phone and the on-call worker took notes "word for word."
The Division offered the summary as evidence but Uma objected, arguing it was not a Division business record and there was no information on the qualifications of the screener who generated the summary. The Division argued it was a business record since screening summaries "are required to commence the start of every single Division investigation." The Division also reiterated the summaries are both made and kept in the regular course of business and that they are admissible according to N.J.S.A. 9:6-8.46(a). Finally, the Division stated they were not moving to admit the summary for the truth of the matter asserted, but instead to show what information was provided to the Division on-call worker at the start of his investigation. The ALJ overruled the objection and admitted the screening summary. No further questions were asked regarding the summary and the summary was not relied upon by the ALJ or the Director.
In reaching his conclusion that there was no abuse, the ALJ noted no medical examination was conducted because the injuries did not require it and that there were also no permanent marks from the injuries. The ALJ found, "the language directed at [Uma] by [Kevin], and, most significantly, the spitting of the toothpaste into her face were factors that would test the patience and passivity of any parent or step-parent." The ALJ concluded,
after an analysis of the factual background leading up to the incident in question, [Uma's] slapping of her step-child three times did not amount to excessive corporal
punishment. I based this conclusion on what I feel are not reasonable, but understandable reactions by [Uma] to conduct by the child that caused [Uma's] acts. I also note that no injury other than the bruise to the child's cheek resulted from her slaps. Considering the circumstances, that is the conduct of the child directed towards [Uma], especially the spitting of the tooth paste [sic] into her face, requires the conclusion that the corporal punishment administered by [Uma] was not excessive.
The Division filed exceptions with the Director and argued there was sufficient evidence to support a finding of abuse. The Division highlighted Uma's failure to attempt to first use a passive form of discipline before restraining Kevin and striking him multiple times close to the eye. Uma did not file a response.
The Director reversed the ALJ and affirmed the substantiation of abuse. The Director emphasized how close the injury was to Kevin's eye, the bruises were readily apparent in the photographs taken thirty-six hours after the incident and after ice was applied, and that Uma did not first attempt a passive form of discipline. She also rejected the ALJ's conclusion that Uma's actions were understandable under the circumstances, because abuse is analyzed by the harm caused to the child and not the mental state of the abuser. The Director concluded Uma
failed to exercise a minimum degree of care as defined by the Court in G.S. [v. Dept. of Human Servs., 157 N.J. 161, 178-79 (1999)] when she hit her son in the face with sufficient force to inflict marks and bruising on his cheek. Such conductThis appeal followed.
constituted excessive corporal punishment and was a willful and wanton act from which the child fortunately evaded serious injury, but which nevertheless, inflicted harm and exposed the child to a substantial risk of even greater harm.
II.
On appeal, Uma argues the definition of child abuse in N.J.S.A. 9:6-8.21(c)(1) describes injuries that create "a substantial risk of death or serious or protracted disfigurement." She further argues "[a] bruise or even two or three bruises fails to comply with . . . the strict language of the statute." We disagree.
We begin our review by recognizing the limited role we perform in reviewing final agency determinations. The Division is the State agency responsible for the "care, custody, guardianship, maintenance and protection of children . . . ." N.J.S.A. 30:4C-2(a). In an abuse and neglect case, the Division must prove by "a preponderance of the evidence" that the child has been abused or neglected, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).
When an appeal is filed from the Division's initial determination, pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, "an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, 158 N.J. 644, 655 (1999) (quoting N.J.S.A. 52:14B-10(c)). The director of the agency then, as the "primary factfinder," has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ . . . ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 507 (App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 586-87 (1988) (explaining relationship between the ALJ's initial decision and the agency's final decision).
In an appeal from the director's determination, we conduct a limited review. Taylor, supra 158 N.J. at 656. We must uphold the final decision of a state administrative agency "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). We must defer to the expertise of a state administrative agency. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). However, we owe no deference if "'an agency's statutory interpretation is contrary to the statutory language, or . . . undermines the Legislature's intent.'" 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)).
Here, the Division substantiated a finding of abuse against Uma, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), which, in relevant part, defines an "[a]bused or neglected child" as
a child whose physical, mental, or emotional condition has been impaired . . . as the result of the failure of his parent . . . to exercise a minimum degree of care . . . by unreasonably inflicting . . . harm . . . , including the infliction of excessive corporal punishment . . . .
Uma challenges the Director's conclusion that hitting her stepson multiple times in the face, which resulted in bruising amounts to excessive corporal punishment under N.J.S.A. 9:6-8.21(c). The Division cites N.J.S.A. 9:6-8.21(c)(4) and argues Uma's actions constituted excessive corporal punishment because she impaired Kevin's physical condition as a result of her failure "to exercise a minimum degree of care" by unreasonably inflicting harm upon Kevin. G.S., supra, 157 N.J. at 178-79.
A step-parent like Uma is a parent under the statute. N.J.S.A. 9:6-8.21(a).
A "guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and . . . recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181. A "'minimum degree of care'" is "willful and wanton conduct," implying actions taken "with reckless disregard for the safety of others." Id. at 178-79.
Failure to exercise a minimum degree of care includes "the infliction of excessive corporal punishment . . . ." N.J.S.A. 9:6-8.21(c)(4). "Corporal punishment" is not prohibited but Title 9 does prohibit "excessive corporal punishment," which is not defined by the statute. N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010) (citation and internal quotation marks omitted), appeal dismissed as improvidently granted, 208 N.J. 355 (2011). "However, "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." N.J. Div. of Youth & Fam. Servs. vs. P.W.R., 205 N.J. 17, 36 (2011).
Our case law has come to define "excessive" as "beyond what is proper or reasonable." K.A., supra, 413 N.J. Super. at 511 (citation omitted). What is proper or reasonable for one child may be different for another, depending on various factors, including a child's age. P.W.R., supra, 205 N.J. at 33 ("[O]ne ought not assume that what may be 'excessive' corporal punishment for a younger child must also constitute unreasonable infliction of harm or excessive corporal punishment in another setting involving an older child."). The Administrative Code lends assistance in identifying excessive corporal punishment by listing types of injuries, including bruises, which may constitute abuse. N.J.A.C. 10:129-2.2; K.A., supra, 413 N.J. Super. at 510-11. A single act of violence could be excessive corporal punishment if it causes an injury requiring medical intervention, K.A. supra, 413 N.J. Super. at 511, but occasional slaps in the face to a teenager, that do not leave bruises, may not be excessive corporal punishment. P.W.R., supra, 205 N.J. at 35-36. However, punishment will be considered excessive where a parent's intentional act exposes a child to the substantial probability that injury would result from the parent's conduct. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 345 (2010). In all determinations regarding excessive corporal punishment, abuse is evaluated by "looking to the harm suffered by the child, rather than the mental state of the accused abuser, because '[t]he main goal of Title 9 is to protect children[.]'" K.A., supra, 413 N.J. Super. at 511. (alterations in original) (quoting G.S., supra, 157 N.J. at 176).
The application of these considerations led us to conclude in K.A. that a mother's actions did not constitute "excessive corporal punishment." The mother in that case repeatedly hit her child on the shoulder leaving visible bruises several days after the incident. Id. at 507-08. We considered the reasons behind the mother's actions - the child did not respond to "passive means of discipline such as a time-out," the fact that the child had a psychological disability and that it was an isolated incident for which the mother was remorseful - as reasons mitigating against a finding of excessive corporal punishment. Id. at 512.
The child had a pervasive development disorder, attention deficient disorder and "was classified autistic but was relatively high functioning." Id. at 506-07.
The facts here, however, are distinguishable from K.A. Uma hit Kevin in the face very close to the eye, leaving bruises that lasted for days. In addition, Uma made no attempt to first use a passive form of discipline such as a time-out before using a basket hold, taking him to the ground, pinning his arms and legs, forcibly brushing his teeth and repeatedly striking Kevin. While Kevin has attention deficit disorder, it does not appear to be on the same level as the psychological disabilities of the child in K.A. Finally, the mother in K.A. was immediately remorseful about her actions. Id. at 508. In contrast, Uma never expressed remorse but rather believed her actions were part of appropriate "discipline in this house," without any regard for the harm, both physical and emotional, that could result from her conduct.
We have recently observed that K.A. does not suggest
the test for determining excessive corporal punishment should be any different when the child has a disability. While these children may be more difficult to control, present additional challenges to a family, and be unresponsive to traditional forms of discipline, they are entitled to the same protection under Title Nine as non-disabled children. We read K.A. to hold only that the underlying behavior of a child, with or without a disability, can be a relevant factor among the totality of circumstances in assessing the reasonableness of the parent's response to the child's outburst.
[N.J. Div. of Youth & Family Servs. v. S.H. and M.H., 439 N.J. Super. 137, 149-50 (App. Div. 2015).]
We conclude the Director carefully considered the evidence and correctly found Uma failed to exercise a minimum degree of care and her discipline of Kevin was not proper and reasonable as she failed to even try a passive discipline technique but instead immediately resorted to physical violence, for which she was not remorseful. These findings were not arbitrary, capricious, unreasonable or lacking support in the record.
III.
Uma next argues the Division's screening summary should not have been admitted into evidence because it was hearsay, not within an exception. However, even though Uma objected to the ALJ that the screening summary was hearsay, she never made that argument to the Director because she did not reply to the exceptions filed by the Division. We will not review questions that were not raised before the administrative agency "unless the questions so raised on appeal go to the jurisdiction of the [agency] or concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation and internal quotation marks omitted). Uma has not presented a basis under either to warrant our review. However, we do note, absent unusual circumstances, a screening summary may be properly admitted in these proceedings pursuant to Rule 5:12-4(d), especially when it is not offered "to prove the truth of the matter asserted." N.J.R.E. 801(c); see also N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129-30 (App. Div. 2010); In Re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION