Opinion
DOCKET NO. A-3743-12T3
07-28-2014
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.S., Defendant-Appellant.
Matthew B. Lun, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Virginia Class-Matthews, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from the Division of Child Protection and Permanency, Department of Children and Families. Matthew B. Lun, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Virginia Class-Matthews, Deputy Attorney General, on the brief). PER CURIAM
N.S. appeals from the final decision of the Director of Child Protection and Permanency, Department of Children and Families, (Director), who found N.S. "acted with reckless disregard for the safety of others when, while motivated by anger, she drove her vehicle recklessly in the vicinity of [her husband's] vehicle, in which her [then thirteen-year-old] stepson B.M. was riding." As a direct consequence of the Director's decision, N.S. is now listed as "substantiated for abuse" in the child abuse registry maintained by the Division of Child Protection pursuant to N.J.S.A. 9:6-8.11.
This child abuse registry is "the repository of all information regarding child abuse or neglect that is accessible to the public pursuant to State and federal law. No information received in the child abuse registry shall be considered as a public record within the meaning of [the Open Public Record Act (OPRA), N.J.S.A. 47:1A-1 to -13.]" Ibid.
In reaching this decision, the Director adopted the Initial Decision of Administrative Law Judge (ALJ) Leland S. McGee, who based his findings and conclusions of law on testimony of witnesses elicited at an evidentiary hearing. N.S. now appeals, arguing the Director's decision should be reversed because the evidence did not establish that her conduct on the day in question amounted to child abuse, as defined in N.J.S.A. 9:6-8.21(c)(4)(b). N.S. maintains she did not act in a "willful or wanton" manner, or engage in conduct that she knew was likely to cause injury to her stepson, as required by the Supreme Court in G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). We disagree with N.S.'s arguments and affirm substantially for the reasons expressed by the Director in her letter-decision dated February 10, 2013.
The incident at issue occurred when B.M. was thirteen years old. B.M. resided at the time with his mother M.R. in the city of Perth Amboy. His father A.M. is married to N.S. A.M. has been diagnosed with amyotrophic lateral sclerosis (ALS), a degenerative neuromuscular condition. Due to the progressive, debilitating nature of ALS, A.M. depends on N.S. as his caretaker. ALS has generally weakened A.M., especially his arms.
N.S. testified at the hearing before ALJ McGee that she was particularly upset on the day in question because she had been recently diagnosed with an unspecified thyroid condition. B.M. and his father had gone to a restaurant without her, and brought takeout food for N.S., who was not home when they arrived. According to B.M., when N.S. returned home, she appeared to be very upset, had a "crazy look" on her face, and said she did not want "leftovers." A.M. then left to take B.M. back to his mother's house in Perth Amboy.
What transpired next formed the basis for the Division's investigation and the Director's ultimate finding of child abuse against N.S. These findings were based on the testimony of Division investigator Amanda Mastondrea, B.M.'s father A.M, and N.S. herself. Mastondrea's testimony was based, in large part, on reports submitted by Division investigator Alexis Flores. Mastondrea was Flores' supervisor and oversaw the progress of the investigation.
Flores interviewed B.M. on July 7, 2013, four days after the alleged incident. The Division received a referral from the Perth Amboy Police Department that B.M.'s mother reported N.S. had placed her thirteen-year-old son's life in danger. B.M. told Flores that while his father was driving him home to his mother's house on July 3, 2013, N.S. began tailgating his father's car, and swerving into and driving in the opposite lane of traffic (facing the oncoming traffic) in an attempt to place her car parallel to his father's car. Finally, N.S. raced ahead and made a U-turn in front of his father's car, thereby placing their respective cars face-to-face in the same lane of traffic. B.M. described it as if N.S. wanted to "play chicken." B.M. said his father was yelling and extremely upset the whole time. There were no other cars on the road at the time.
B.M. told Flores that when they finally reached his mother's house and his father parked the car, N.S. double-parked her car in front them, blocking traffic in the two-way street, causing "about 20 cars behind her car [to start] beeping their horns." N.S. used her keys to unlock the driver-side door of A.M.'s car, opened the door and sat on A.M.'s lap. What transpired from this point on between N.S. and A.M. is irrelevant to the charges of child abuse concerning whether N.S.'s conduct placed B.M. in a situation likely to cause him injury.
N.S. testified at the evidentiary hearing that she did not follow her husband's car on the day at issue in order to bother A.M. She claimed that she was driving to her brother's house in Montclair when she realized she left her wallet, containing her driver's license, in her husband's car. On cross-examination, N.S. admitted she did not tell Division investigator Flores that was the reason she was following her husband's car that day. N.S. claimed she withheld this information from Flores because she "thought she was a cop." N.S. also admitted to driving her car behind her husband's car on highway Route 280 "trying to catch his attention." Finally, on cross-examination, N.S. admitted to making a "u-turn" because her manual transmission car "miss-shifted." When ALJ McGee reminded N.S. that she testified on direct examination that she made a "K-turn," she retracted her statement concerning the U-turn, and alleged that she actually made a K-turn, a driving maneuver also known as a three-point turn.
As part of his findings, ALJ McGee noted that "[n]either investigator Alexis Flores nor B.M [were] present at the hearing to give testimony or to be cross-examined regarding the Investigation Summary." A.M. did testify, however. His account of what transpired on the road downplayed N.S.'s alleged reckless behavior as reported by B.M. In fact, A.M. disclaimed that he told Flores that N.S. "veered towards [his] car a little bit and that scared B.M." When confronted on cross-examination with the statement, A.M. responded: "[B.M.] never indicated to me that it scared him."
After reviewing all the evidence before him and applying the relevant legal standards, ALJ McGee found "that the Department of Children and Families has met its burden of proving abuse." The Director, thereafter, adopted his findings without exception. The scope of our review is limited to determining whether the decision of the administrative agency is supported by competent evidence in the record. We are bound to uphold the agency's decision "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).
N.J.S.A. 9:6-8.21(c)(4)(b) defines "child abuse" to include "unreasonably inflicting or allowing to be inflicted harm, or substantial risk" of harm upon a child. Here, the Director applied the well-settled standard articulated by the Court in G.S., and found N.S. committed child abuse when she failed "to exercise a minimum degree of care" expected of a motorist and drove her car in a reckless manner thereby placing her stepson in an inherently dangerous situation. G.S., supra, 157 N.J. at 181. We discern no legal basis to disturb this finding.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION