Before Judges Skillman, Newman and Fall.
The opinion of the court was delivered by: Killman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from New Jersey Division of Youth and Family Services.
The issue presented by this appeal is whether a teacher has a due process right to challenge the form of an investigatory finding by the Division of Youth and Family Services (DYFS) that the teacher has had improper physical contact with a student. We conclude that even though a teacher has no right to an adjudicatory hearing to challenge such a finding unless DYFS concludes that the teacher's conduct constitutes "substantiated" child abuse, the teacher may challenge the wording of the finding on the ground that it is misleading and unfairly damaging to his reputation. We also conclude that DYFS inaccurately and unfairly conveyed the impression that its finding was based on an adjudicatory hearing by stating in a letter to the teacher's employer that the finding was based on "the preponderance of the credible evidence." Accordingly, we require DYFS to send a corrected finding to the teacher's employer which clearly states that the finding was investigatory only.
On November 18, 1998, DYFS received a referral from the principal of an elementary school in Kearney who reported that the father of a first grader alleged that a teacher in the school, M.I., *fn1 had grabbed his daughter, R.P., by the back of the neck. DYFS assigned an investigator to the matter, who interviewed R.P., her mother, father and sister, and various students, teachers and school administrators. R.P. stated that she had been engaged in "horseplay" with another student on the playground. M.I. started yelling at her, while holding onto her neck, which caused her to cry. R.P. said that M.I.'s "grasp was hard and it hurt." R.P.'s allegations were corroborated by her older sister, who stated that she saw M.I. holding R.P.'s neck, and that she yelled at M.I. to get his hands off of her sister. In addition, R.P.'s father told the investigator that when R.P. came home from school, he noticed what appeared to be an adult handprint on the back of her neck. R.P.'s mother told the investigator that she did not see any redness on R.P.'s neck when she returned home from work, but that her daughter was upset.
M.I. told the investigator that one of his responsibilities was to be a "patrol adviser." A "patrol" student reported that he had seen R.P. run off the school property just before the beginning of school, and that he had also seen her kick another student. M.I. tried to question R.P. about her behavior, but she was crying so hard he could not question her. Consequently, he escorted R.P. back to her classroom and described what had happened to R.P.'s teacher. According to the DYFS investigator, M.I. "emphatically denied that he had any physical contact with the child."
R.P.'s teacher and a teacher's aide assigned to the classroom told the DYFS investigator that R.P. did not complain of any pain or discomfort after M.I. brought her back to the classroom, and that they did not notice any mark on her neck. Several of the students interviewed by the DYFS investigator stated that they had seen M.I. yelling at R.P., but none of them saw him grab her by the back of the neck.
Based solely on the information obtained in the investigator's interviews, DYFS sent a letter to the Kearney Superintendent of Schools, which stated:
On November 18, 1998, the Division's Northern Regional Investigation Unit received an allegation of physical abuse at the above named facility.
An investigation was conducted. Physical abuse was not substantiated, in accordance with the child abuse/neglect statutes of the State of New Jersey. However, there were concerns relative to the actions of School Teacher [M.I.]. The child sustained superficial injuries, red linear marks to her neck, as a result of this incident. Medical attention was not required. Physical intervention was determined to be unjustified and inappropriate, placing the child at some unnecessary and undue risk of harm. Specifically, the preponderance of the credible evidence indicated that [M.I.] grabbed [R.P.] by the back of her neck. [R.P.] was neither a danger to herself or others. Physical contact was not necessary as well as being contrary to district policy. Excessive force was not utilized.
Appropriate remedial/corrective action was taken at the onset of this investigation. [M.I.] was administratively counseled relative to the district's "hands off" policy. He was directed to have no contact with the child pending the outcome of this investigation. Finally, he was being closely supervised by the building principal.
Please confirm, in writing, within thirty days, ...