Opinion
DOCKET NO. A-3157-11T4
03-22-2013
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, Petitioner-Respondent, v. V.D., Respondent-Appellant.
The Law Offices of Jay Bhatt, attorneys for appellant (Chris Yates, on the brief). Jeffrey S. Chiesa, Attorney General of New Jersey, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Division of Youth and Family Services, Department of Children and Families, Docket No. 09-0730.
The Law Offices of Jay Bhatt, attorneys for appellant (Chris Yates, on the brief).
Jeffrey S. Chiesa, Attorney General of New Jersey, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). PER CURIAM
Defendant V.D. appeals from the Division's final decision, after a contested hearing before the Office of Administrative Law (OAL), affirming the substantiation of defendant's abuse of her son B.H., and ordering that defendant's name be placed on the child abuse registry pursuant to N.J.S.A. 9:6-8.11. In so doing, the Division's Director rejected the Administrative Law Judge's (ALJ) contrary initial decision. We reverse and remand.
I.
A.
We begin by reviewing the evidence presented at the OAL hearing. Defendant, who appeared pro se, and Division intake worker Precella Speid were the only witnesses. According to Speid, defendant awakened B.H. from his sleep and struck him with a belt because he disobeyed her by using a computer he had been banned from using, and because he sent derogatory emails about her. Although defendant confirmed that B.H. was both disobedient and disrespectful, she testified she struck B.H. only after he physically threatened her. The ALJ implicitly found defendant credible.
According to a screening summary, defendant's son B.H., then thirteen-and-a-half years old, disclosed to the reporter, later identified as the school vice-principal, that "his mother woke him in the middle of the night and beat him with a belt[.]" The incident occurred on March 26, 2009 at 11:00 p.m. The screening summary stated, "Reporter states the child said his mother took his phone away and the child emailed his friend and told her how upset he was about it. The child assumes the mother read the email and that is why he was hit." The child had red and raised welts, but was examined by the school nurse, who determined "the child doesn't need any medical attention." According to the summary, the reporter also stated that "[t]he child states this is the first time the mother has hit him with a belt. The mother has hit the child in the past."
Speid testified that she interviewed B.H.:
B.[H.] reported that he was asleep, he had made — he was upset with his mother. He was on punishment and he made — he wrote some emails to a girl that he was interested in, or supposedly dating at the time, that mentioned several negative statements about his mom. His mom found out about the email, she became irate and while he was asleep she woke him up and she physically disciplined him with a belt.Speid's written report of the interview, contained in her investigation summary, was consistent. Speid wrote, "[B.H.] stated that he was asleep when his mother woke him up sometime during the night and started whipping him with a belt over his upper body." The summary reported, "[B.H.] stated that he said some horrible things about his mother in the email which may[]be the reason why she became upset."
B.H. reportedly said "he wasn't afraid of his mom. He said that this had been the first time that she had hit him with a belt in this manner[.]" Speid testified, "He was remorseful for the fact that he had made negative statements about his mom because he said that she didn't deserve it[.]" She added, "[H]e didn't want any trouble, he just simply wanted his mom to get some . . . help at the time and he also wanted to get some help for himself." Notwithstanding his academic probation, Speid testified that B.H. denied he had a problem academically, asserting "he just wasn't focusing as much because he was — he admitted to being distracted sometimes." He also stated he and his mother disagreed about his desire to have a girlfriend.
Speid authenticated photographs of B.H.'s injuries, which reflect a welt on B.H.'s right arm, a bruise on his left arm, and a mark on his chest. There was no broken skin. Speid described B.H. as about five-foot-three, medium build.
Speid summarized her interview with defendant. According to Speid, defendant admitted she physically disciplined B.H. Defendant reportedly stated that she had punished B.H. by taking away his cell phone and prohibiting him from using his computer because he was on academic probation for doing poorly for two grading cycles. Defendant discovered that B.H. had used his computer to send a "derogatory email about her." "[A]t that point in time she was so upset, you know, felt that she had done all that she could do as a single parent and she decided that, listen, this is it, I've had enough, and she proceeded to physically discipline B.H." On cross-examination, Speid conceded that defendant did not say she woke B.H. and immediately beat him. Rather, Speid conceded that defendant told her she woke her son, they argued, and then she disciplined him.
In her investigation summary, Speid added that defendant said "she does not usually hit [B.H.] but got very frustrated and angry at the things he said to his friend in the email even though she is trying to do her best to raise him practically by herself; since his father was [of] very little help." The summary reported, "[Defendant] stated that she is very overwhelmed and would be willing to do whatever it took to have her son remain in her care. Worker asked [defendant] about her current feelings and she stated that she was tired and burnt out."
Speid also testified that the school counselor told her B.H. "wasn't a problematic student" and was not "known to her at the time in terms of having behavioral or mental issues[.]" On cross-examination, she confirmed the school's vice-principal told her B.H. was on academic probation.
Speid testified that B.H. was not removed from defendant's care, based on B.H.'s age, the lack of a prior family history, and lack of prior concerns reported by the school regarding the child's safety. Defendant completed anger management and parenting skills classes. B.H. also agreed to attend counseling at the school. Speid reported that in a follow-up interview, B.H. stated that "everything was going well at home, at school, things were getting better and that he had no concerns at that point in time."
The Division notified defendant by letter dated April 22, 2009, that its "investigation determined that abuse was substantiated from Physical Abuse - cuts, bruises, welts, abrasions and oral injuries[.]" With respect to the decision to substantiate abuse, Speid conceded it was a close case: "[I]t was . . . 50/50 are we going to substantiate or are we going to unfound[.]" She stated the Division concluded the preponderance of the evidence supported the decision to substantiate abuse. She stated that the nature of the physical injuries and the use of a belt were significant factors in the decision. At the close of the Division's case, the court admitted into evidence, without objection, the screening summary, the Division's investigative report, the case plan, the photographs, and the substantiation letter.
Defendant testified in her defense, explaining that B.H. had a history of being confrontational and physically menacing her. When she woke him to discuss his unauthorized use of his computer, and his disrespectful emails, he physically menaced her, and then she responded with corporal punishment. We quote at length from her testimony:
THE WITNESS: Right. B.H. had been giving me a lot of problems in school and at home. I have tried everything, punishment, I've tried taking every — you know, things away from him. I've tried talking to the school to the point he was on academic probation from getting suspended, from being, you know, disrespectful in class with his teachers and things of that nature. Pretty much I couldn't really depend on his dad because his dad wasn't really readily available to me as I want him to be. He wasn't there how he should be. He would be there and then he wouldn't be there, so, I couldn't really depend on him to help me provide that, you know, manly, I guess, support and discipline for my child. So pretty much that night I had — you know, he was on punishment and I had taken the laptop away from him, he had no cell phone and he was seeing someone at the time, you know, one of his little girlfriend's and I did not have a problem with him having a girlfriend, I never did, you know, I always talked to him about things like that and I always want him to be comfortable with telling me things like that. My only issue was that he was on punishment and he wasn't supposed to be on the laptop, on the phone or anything else.She testified that when her son becomes confrontational, huffing and puffing and balling up his fists, "he scares me" and "he does that all the time." When she woke him for school the next morning, "he was giving me attitudes again[.]"
B. took the laptop from me, went into his bedroom and basically starting sending, you know, using the laptop and sending emails to his little friend, and in the
emails he said horrible things about me. He said how he hated me and that I'm not going to keep him from doing what he wants to do, that he's going to do what he wants to do regardless and no one can keep him from doing it or talking to her and that he's going to talk to her no matter what.
I — B. had fallen asleep with the laptop opened, you know, I guess he forgot to close it down and shut it down and usually I go in his bedroom just to check on him to make sure he's okay. I went in there and I noticed the light on the laptop and it was under his sheets so I took the laptop and I opened it and I saw it and I woke him up and I said, "B., what is this?"
One of the issues that I've had with B. was B. being very confrontational to me as far as he balls up his fists at me, he gets up in my face like he wants to literally hit me he'll, you know, talk back to me and, you know, just very defiant. And at that point, you know, I got very upset with him because he got upset, you know, he started getting, you know, up in my face and — and then I did grab a belt and I did hit him. I didn't beat him with the belt, I gave him a few lashes across[] his arms. Was that the best thing to do? At that point I was just — I felt like I tried everything, I've tried every single thing and I didn't know what else to do. (Crying) I didn't mean to hurt my child, I never meant to hurt my child.
Defendant discussed that she had tried to do her best to raise her child "not to fall to the streets of Newark and not to become a criminal, but to become someone[.]" She worked full-time as a domestic violence advocate for Family Court. She had little help from other relatives in raising her son. She discussed that she had sent her son to North Star Academy to enhance his education. However, B.H. had been acting rebelliously.
Before this incident, the only corporal punishment she utilized was open-handed spanking, but she said B.H. "barely got spanked[.]" She testified that her son had confided in her, after the incident, that "his anger is coming from the lack of involvement of his father."
B.
In his October 2011 initial decision, the ALJ summarized the two level test for determining excessive corporal punishment under N.J.S.A. 9:6-8.21(c)(4)(b), which we delineated in Dep't of Children & Families v. K.A., 413 N.J. Super. 504 (App. Div.), certif. granted, 204 N.J. 40 (2010), appeal dismissed, 208 N.J. 355 (2011). First, a court must determine whether the parent inflicted "per se" excessive corporal punishment:
A situation where the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves to be necessary, may be
sufficient to sustain a finding of excessive corporal punishment, provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted.
[Id. at 511.]
When the parent's actions do not rise to the level of per se excessive corporal punishment, then the court must examine the surrounding circumstances. Id. at 512. In K.A., we considered: "(1) the reasons underlying K.A.'s actions; (2) the isolation of the incident; and (3) the trying circumstances which K.A. was undergoing due to A.A.'s psychological disorder." Ibid. We stated, "These factors form the prism through which we determine whether K.A.'s actions were indeed 'excessive.'" Ibid. We did not preclude consideration of additional factors in an appropriate case.
The ALJ found that the bruises that defendant inflicted did not constitute per se excessive corporal punishment. "In the instant case, although the blows from the belt caused bruises, they did not lacerate the skin, no medical intervention was required, none of the bruises were on or near the face, and there was no evidence of permanent harm."
Turning to the surrounding circumstances, the ALJ concluded excessive corporal punishment was not proved. The ALJ noted that the "allegation [was] that [defendant] woke her son up in the middle of the night to whip him with a belt for saying negative things about her in an email message." Although the ALJ could have been clearer, we read his decision to credit defendant's testimony that she did not strike her son immediately upon wakening him; rather, she began by demanding an explanation, her son became defiant and physically menaced her in a way that has scared her in the past, and then she struck him.
The ALJ concluded, "The relevant facts are undisputed." He found:
[Defendant] confirmed that she hit B.H. with a belt. He had been giving her problems at school and at home. He was on academic probation for being disrespectful at school. At home B.H. is becoming confrontational and "balling up his fist" at her and "getting in her face." . . .
As punishment for B.H.'s behavior in school and at home, [defendant] took away his cell phone, computer, and telephone privileges. She has also prohibited him from going outside to "hang out." However, long punishments cause B.H. to get angry and exhibit "menacing" behavior.
On the day of the incident B.H. took the laptop into his bedroom and fell asleep with it on. [Defendant] came home, checked on him and saw the laptop. She was angry because he used it without permission. She also looked at what was posted as a text or email message to his girlfriend and woke him up. [Defendant] had also received his report card that same day and he was still on academic probation.
In his conclusions, the ALJ found that defendant was "confronted by a defiant and disruptive child whose history of disruptive behavior caused him to be on academic probation in school. His behavior in school and at home required discipline by [defendant]."
In concluding the Division failed to meet its burden, the ALJ also relied on defendant's lack of support from others. "This teenager's father was not readily available to provide parental support to [defendant]." The court also noted if the abuse were substantiated, defendant would be entered on the Child Abuse Registry, and would suffer various consequences therefrom.
The ALJ also cited various other facts, but did not expressly rely upon them in reaching his conclusion that defendant did not abuse B.H. He observed the Division did not believe B.H. was in sufficient danger to warrant removal; and both mother and child were referred to counseling and defendant "did in-fact complete a parenting course."
The ALJ also found there was no "serious injury" as defined by N.J.S.A. 9:6-8.8(a); "no ongoing risk of death, disfigurement[,] impairment of physical or emotional health or loss of bodily function as per N.J.A.C. 10:129-1.3(1)(i), (ii);" and "no physical[,] mental or emotional impairment as per N.J.A.C. 10:129-1.3(1)(iv)[.]"
C.
The Director rejected the ALJ's initial decision. Applying the standard in K.A., the Director disagreed with the ALJ's conclusions, "considering the surrounding circumstances of this case[.]" In so doing, the Director mischaracterized the testimony of defendant, whom the ALJ implicitly found credible. The Director found that defendant woke up B.H. and immediately struck him, notwithstanding defendant's testimony she woke him up, demanded an explanation from him, and "he got upset, you know, he started getting, you know, up in my face and — and then I did grab a belt and I did hit him."
We quote the following excerpts from various points in the Director's decision:
[Defendant] testified as well and confirmed that she woke B.H. up from his sleep and hit him with a belt after she saw that B.H. had used his laptop computer without permission and saw he wrote negative things about her on that computer.
[. . . .]
Additionally, she lashed out at her son while he was sleeping and was not in a heated confrontation with [defendant] at the time.
[. . . .]
Additionally, this was not an instance where B.H. was being disruptive or acting confrontationally or aggressively in any way. B.H. was fully asleep at the time he was awakened by his mother to endure a beating.
[. . . .]
Waking up your sleeping son to strike him repeatedly with a belt throughout his body is an unreasonable form of punishment that was willfully and wantonly taken by [defendant] . . . .
[. . . .]
Immediately upon realizing that B.H. had used the computer without her permission and observing that he had also written negative messages about her to his girlfriend, [defendant] became physical and began striking B.H. with the belt. Although it was found in the past that when [defendant] punished B.H., he became confrontational with [defendant] and "ball[ed] up his fist," in this instance, B.H. was asleep, did not act defiantly to warrant such punishment and [defendant] was not acting in self-defense.
The Director also noted several facts that distinguished this case from K.A., and supported a finding of abuse. The Director noted defendant struck B.H. with an instrument — "a belt with a buckle" — although the record contains no evidence the belt had a buckle, let alone a buckle that touched B.H. She noted that use of a belt with a buckle increases the risk of harm.
The Director found "[t]he method of punishment and degree of force utilized here were more excessive and unreasonable than in K.A., and the harm inflicted upon the child and substantial risk thereof were more extensive as well." She added, "The locations of the strike that [defendant] landed upon her son, on both arms, his back and his chest, do not show the type of measured corporal punishment that is designed to minimize substantial harm or the risk thereof."
The Director concluded that defendant "failed to exercise a reasonable degree of care as defined by the Court in G.S.[ v. Dep't of Human Servs., 157 N.J. 161 (1999)] when she st[r]uck her son with a belt multiple times with sufficient force to leave bruises on his arms, back and chest." The Director concluded, "This was a willful and wanton act from which the child fortuitously evaded serious injury, but which nevertheless inflicted harm and exposed the child to substantial risk of even greater harm." The Director ordered that defendant's name be placed on the child abuse registry.
This appeal followed. Defendant raises the following points for our consideration:
POINT I
THE AGENCY DIRECTOR IMPROPERLY REJECTED THE FACTUAL AND CREDIB[I]LITY FINDINGS OF THE ALJ AND THE DIRECTOR'S FINAL DECISION IS NOT SUPPORTED BY THE RECORD.
POINT II
THE APPELLANT'S ACTIONS ARE NOT EXCESSIVE PER SE AND ARE OTHERWISE NOT EXCESSIVE UNDER K.A.
POINT III
THE DIRECTOR INAPPROPRIATELY HELD THIS MOTHER TO A HIGHER STANDARD OF CONDUCT THAN THE LAW REQUIRES BY VIRTUE OF HER OCCUPATION.
II.
A.
We review the Director's fact-findings to determine whether they are supported by sufficient credible evidence. In re Taylor, 158 N.J. 644, 657 (1999). Our role is to assess whether the agency's decision was arbitrary, capricious or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We engage in a "'careful and principled consideration of the agency record and findings.'" Taylor, supra, 158 N.J. at 657-58 (quoting Mayflower Sec. Co. v. Bureau of Sec, 64 N.J. 85, 93 (1973)).
When the agency head reaches findings at odds with those of the ALJ, our review is heightened.
In a case where an administrative agency's findings of fact are contrary to the findings of the ALJ who heard the case, there is a particularly strong need for careful appellate review. Although an
agency is not required to defer to an ALJ's findings, it "is not free to brush aside or
disregard [them] without comment." In fact, if an agency's fact finding is based on the credibility of witnesses, "a reviewing court need give no deference to the agency . . . on the credibility issue."
[In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001) (citations omitted) (reversing agency decision that rejected ALJ's findings).]
Moreover, the ALJ need not explicitly state it has found a witness credible, if its other fact-findings make the credibility finding implicit. In re Taylor, 158 N.J. at 659 (stating that "credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear"). The ALJ, who has the opportunity to assess the witnesses' demeanor, is in a better position than the agency head to make credibility findings. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We must give "due regard" to the fact-finder who has heard the witnesses and adjudged their credibility. Ibid. Consequently, we are not required to defer to the agency head's decision on credibility findings, if at odds with the ALJ's. Id. at 587-88. Applying those standards, the Court in Clowes affirmed our decision reversing the order of the agency head, who rejected the ALJ's credibility-based findings.
Since 2001, the Administrative Procedure Act (APA) has expressly circumscribed the power of an agency head to reject the credibility-based fact-finding of an ALJ. The following language was added to the APA by L. 2 001, c. 5, § 4, codified at N.J.S.A. 52:14B-10(c):
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. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.While the statute required agency heads to extend greater deference to ALJ credibility-based fact-finding, it also preserved the agency head's discretion to reject other findings of fact, and to interpret the law and to make policy decisions. Ibid. ("In reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so.").
Judge Lefelt explained the 2001 law's impact in a case involving the Public Employees Retirement System's Board of Trustees (Pension Board). Cavalieri v. Bd. of Trs. of the Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 533-34 (App. Div. 2004).
The [agency head], in this case, was not at liberty to simply substitute its judgment for that of the ALJ's. . . . When an ALJWhen the testimony of lay witnesses can support alternative findings, the ALJ's factual findings control, unless arbitrary or lacking support of sufficient credible evidence. Id. at 537.
had made factual findings by evaluating the credibility of lay witnesses, the [agency head] may no longer sift through the record anew to make its own decision, which will be affirmed if it is independently supported by credible evidence. See In re Taylor, 158 N.J. 644, 656 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). After the 2001 APA amendment, in order to reverse such a factual finding by an ALJ, the agency head must explain why the ALJ's decision was not supported by sufficient credible evidence or was otherwise arbitrary. N.J.S.A. 52:14B-10(c); S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002).
[Id. at 534.]
Applying that standard, the court reversed the Pension Board's order. The court concluded "the Pension Board rejected all of the ALJ's credibility findings without explaining why they were arbitrary or not based upon sufficient credible evidence." Ibid.; see also In re Hruska, 375 N.J. Super. 202, 207 (App. Div. 2005) (accepting ALJ's fact-finding, and concluding agency head erred in rejecting ALJ's fact-finding without stating with particularity its reasons); S.D. v. Div. of Med. Assistance and Health Servs., 349 N.J. Super. 480, 484-85 (App. Div. 2002) (remanding to the agency for reconsideration of its decision in light of L. 2001, c. 5, § 4).
B.
Under the foregoing principles, we discern insufficient support in the record to sustain the Director's numerous findings that were at odds with those of the ALJ, who implicitly credited defendant. The Director found that defendant admitted she woke up her son and struck him. But, the Director overlooked defendant's critical testimony that in between the moments she woke her son, and she struck him, she demanded an explanation, her son confronted her, she reached for a belt, and then struck him.
As we have recounted, the Director implied that defendant was armed with a belt when she woke her son, yet she testified she reached for it after her son confronted her. The Director found that defendant woke her son intending to hit him, yet she testified she woke him and demanded an explanation. Although the Director accepted that B.H. had menaced his mother in the past, balling up his fists, she found he did not do so in this incident, yet defendant testified that he did confront her, stating "he got upset, you know, he started getting, you know, up in my face." The Director's findings are contrary to those of the ALJ, who found that defendant "was confronted by a defiant and disruptive child[.]" The Director did not state with particularity why she rejected the ALJ's findings. In fact, the Director did not even acknowledge that she was rejecting the ALJ's findings.
Moreover, her findings, contrary to defendant's testimony, lacked the substantial support of other credible evidence in the record. The only other evidence regarding what happened was the hearsay statements of B.H. himself. However, B.H. was not asked to confirm or deny his mother's assertion that an argument and menacing gestures preceded the corporal punishment. According to Speid's investigative summary, "[B.H.] stated that he was asleep when his mother woke him up sometime during the night and started whipping him with a belt over his upper body." Speid testified that B.H. told her that defendant "woke him up and she physically disciplined him with a belt." Neither account directly contradicts defendant's.
At most, B.H.'s hearsay statements implicitly contradict his mother's account, but given that the Division bears the burden of persuasion, that implication does not outweigh the mother's credible testimony, particularly in light of the finding that B.H. had responded menacingly in the past to his mother's non-corporal punishment. Furthermore, B.H.'s own credibility may be questioned, inasmuch as he also denied to Speid that he was having academic problems, notwithstanding that the vice principal and defendant both said he was on academic probation.
Although not as significant in the Director's calculus, the finding that defendant used a belt with a buckle was also unsupported by the evidence. Neither B.H. nor defendant described the belt used.
As we stated in K.A., the circumstances surrounding defendant's resort to corporal punishment must be carefully weighed in determining whether corporal punishment is excessive, where the injuries do not themselves establish a per se case. As the Director recognized, there are significant distinctions between this case and K.A., including that defendant used an instrument as opposed to a closed hand, and B.H. suffered injuries on numerous parts of the body.
On the other hand, defendant was coping with an adolescent boy. A child's age may be considered in assessing whether a defendant's response was excessive. Compare N.J. Div. of Youth & Family Servs. V. P.W.R., 205 N.J. 17, 33 (2011) (holding that slapping disobedient female teenager in face was not excessive, stating that "one 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"), with Dep't of Children & Families v. C.H., 416 N.J. Super. 414, 416 (App. Div. 2010) (holding that striking five-year-old "in multiple locations, including a vulnerable area," was excessive), certif. denied, 207 N.J. 188 (2011).
While B.H. was not diagnosed with a disorder as was the child in K.A., he had, on multiple occasions in the past, acted in a physically menacing way toward his mother. Defendant stated that his behaviors scared her. Defendant, like the parent in K.A., lacked the support of other family members.
We remand to the Director to reconsider her decision in light of our opinion. We shall not substitute our judgment for the Director as to whether the remaining evidence supports substantiation of abuse. Upon remand, the Director shall disregard the unsupported finding that defendant was already armed with the belt and struck B.H. ediately upon waking him. Instead, she shall defer to the ALJ's finding that defendant was confronted with a defiant child when she struck him. If she deems necessary, the Director may further remand to the OAL for additional, more explicit findings as to the surrounding circumstances.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION