June 13, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
On appeal from a Final Decision of the Office of Children's Services, New Jersey Department of Human Services, Case No. AHU-03-059.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2007
Before Judges Coburn and Gilroy.
Appellant W.W., a former third-grade elementary school teacher, appeals from the February 14, 2006, Final Decision of the Office of Children's Services, affirming the Office of Children's Services, Institutional Abuse Investigation Unit's (IAIU), determination that "W.W.'s actions on March 7, 2002, toward D.H. constitute[d] child neglect pursuant to N.J.S.A. 9:6-8.21 to -8.106."*fn1 We affirm.
On March 7, 2002, D.H., a nine-year-old male student struck another student in W.W.'s classroom. During a class break, W.W. telephoned D.H.'s mother, Ms. H., and informed her of D.H.'s misconduct. Responding to the telephone communication, Ms. H. proceeded to the school, entered W.W.'s classroom, and sat in the rear of the classroom until lunch recess. Following her conversation with Ms. H., W.W. noticed Ms. H. removing her belt from her waist. Ms. H. then instructed D.H. to stand by the blackboard, and struck him on the buttocks with the belt for approximately two minutes. Responding to the boy's screams, Joan Brand, the Assistant Student Director and Teacher Facilitator of the school proceeded to W.W.'s classroom where she noticed that the classroom door window was partially covered with double-wide construction paper, which she had not noticed while walking through the school building earlier that morning. Brand opened the classroom door without knocking and observed:
[W.W.] was standing in the room with her arms crossed. The mother was probably about two feet away, and she was fastening a belt back into her pants. Her child was in front of her . . . crying . . . his sweatpants were down around his legs, and he was kind of in a bent position.
No other children were in the classroom. Brand immediately reported the matter to her supervisor and to DYFS.
Following receipt of the referral, IAIU Investigator James Gregory responded to the school that day and commenced his investigation. After discussing the matter with Brand, Gregory proceeded to D.H.'s home, where he spoke to D.H. and his mother. D.H. told the investigator that W.W. had called his mother into the school because he was "messing around with another kid." After his mother arrived, she took off her belt, made him pull his pants down around his ankles, and beat him with the belt. When asked what the teacher was doing during this time, D.H. replied, "She was putting a piece of paper up on the window of the classroom door." Ms. H. admitted to Gregory that she had beaten her son with a belt in the classroom because she wanted to impress upon him the importance of doing well in school. Although she did not remember how many times she had struck D.H.,
she told Gregory that "it was enough times that he got the message." When asked what the teacher did during the beating, Ms. H. responded that W.W. did not try to stop her from disciplining her child and that W.W. "did cover the window with paper."
During the course of his investigation, Gregory had also spoken to a school custodian who acknowledged being near W.W.'s classroom at the time of the incident, when he heard the child scream. The custodian further advised that after having heard the scream, he looked around the edge of the paper, covering the window, and saw W.W. and "a lady beating a kid with a belt." On September 10, 2002, IAIU issued its report, substantiating W.W.'s neglect by failing to intervene as D.H.'s temporary caretaker, putting him at risk of significant harm.*fn2
Following notification of IAIU's determination, W.W. requested a dispositional review. DYFS offered W.W. the choice of a dispositional review or a hearing at the Office of Administrative Law (OAL). On December 12, 2003, W.W. requested an OAL hearing. The hearing was conducted on October 26, 2004, at which time Brand, Gregory, and W.W. testified.
W.W. testified that after speaking to Ms. H. in the classroom but prior to leaving the room, she noticed Ms. H. starting to remove her belt while instructing D.H. to stand by the blackboard. Ms. H. pulled off her belt and beat D.H. for "maybe two minutes." W.W. testified that she was in shock and did not intervene between D.H. and his mother because she "felt if I put myself in between them, there might have been some physical harm done to me as well . . . ." W.W. denied that the classroom door window was completely covered with paper and denied adding paper in order to prevent anyone from looking into the room. She stated that some artwork covered the classroom door but not the classroom door window.
On August 17, 2005, the Administrative Law Judge (ALJ) issued his decision concluding "that the Division's determination that the alleged neglect/lack of supervision was substantiated is consistent with N.J.S.A. 9:6-8.21 and should be affirmed." On February 14, 2006, the Acting Deputy Commissioner of the Office of Children's Services, Department of Human Services, issued his final decision, adopting the findings and conclusions of the ALJ, and affirming the substantiation of neglect against W.W., noting in part:
[A]t the point that Mrs. H. took off her belt, and D.H. submissively pulled his pants down, W.W. had an obligation to exercise any minimum degree of care as required by N.J.S.A. 9:6-8.21(c)(4). As D.H. screamed and cried, W.W. remained quiet, rather than request Mrs. H. refrain from her actions. W.W. should have intervened by requesting Mrs. H. to stop, or as she saw Joan Brand in the hall, asking for assistance. However, based on the evidence, W.W. instead covered the window with paper, creating an environment that placed D.H. at risk of harm.
On appeal, appellant argues:
THE FACTS DO NOT SUPPORT A FINDING OF NEGLECT UNDER N.J.S.A. 9:6-8.8 [TO] -8.106 FOR FAILING TO AFFIRMATIVELY INTERVENE IN DISPUTE BETWEEN MOTHER AND SON.
PURSUANT TO N.J.S.A. 9:6-8.21(a), THE MOTHER ASSUMED RESPONSIBILITY OVER D.H. UNDER THE FACTS OF THIS CASE.
NO LEGAL DUTY EXISTS REQUIRING A TEACHER (W.W.) TO PHYSICALLY INTERVENE IN A FAMILY ALTERCATION.
The judicial role in reviewing decisions of administrative agencies is limited. "Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Township of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Wnuck v. New Jersey Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)).
Additionally, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Ibid. (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "[An] agency's interpretation of the operative law is entitled to prevail, so long as it is not plainly unreasonable." Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313, 327 (1984). Although this court must give deference to an administrative agency charged with the interpretation of the law, this court is not bound by an agency's legal opinions. Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dept. of Human Servs., Div. of Youth and Family Servs., 157 N.J. 161, 170 (1999)); see also, Mayflower Secs. v. Bureau of Secs., 64 N.J. 85, 93 (1973).
We have carefully reviewed the record in light of the arguments presented by appellant and determined that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We conclude that the agency's decision, finding substantiated neglect against appellant, is supported by substantial evidence. R. 2:11-3(e)(1)(D).