On appeal from a Final Decision of the Department of Children and Families, Institutional Abuse Investigation Unit, IAIU Nos. 06-6885 and 07-8509.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, R. B. Coleman, and Lyons.
These back-to-back cases involve appeals by public school employees from the conclusions regarding allegations of abuse investigated by the Institutional Abuse Investigation Unit (IAIU) of the Department of Children and Families. In both cases, we remand to the IAIU for modification of its reports.
In Docket No. A-2522-06T2, S.P. appeals from a report dated November 29, 2006 in which the IAIU determined that the allegations of physical abuse injurious to the health and welfare of E.V. were unfounded under N.J.S.A. 9:6-8.21. Nevertheless, the report indicated that S.P.'s "action was inappropriate and placed the child at some risk of harm." The IAIU made no recommendations for disciplinary or corrective action. The investigation of S.P. was initiated on October 3, 2006, when the Department of Children and Families (DCF) received a referral from its North Passaic local office that six-year-old E.V. "alleged that his classroom teacher . . . [had] kicked him repeatedly on his ribs while he was on the floor," on September 27, 2006. The local DCF case worker was conducting a monthly visit with E.V. on October 3, 2006, when E.V.'s foster parent reported the alleged abuse. According to the foster parent, E.V. told his bus driver about the incident, and the bus driver reported the matter to the babysitter, who later informed the foster parent.
When the DCF case worker spoke with E.V., he stated that he was "being bad [at school] and he was on the floor, and his teacher started to kick him." The teacher was later identified as S.P., an Instructional Assistant employed by the Paterson Public Schools (District). The case worker did not observe any visible marks or bruises on E.V., and he did not complain of pain or discomfort.
DCF referred the case to the local IAIU, which assigned an investigator to the matter. Between October and November 2006, the IAIU investigator interviewed the individuals involved in the incident. Although E.V. was five-years-old when he was interviewed, he had communication disabilities and functioned at the level of a child who was twenty-four to thirty months of age. When the interviewer asked specifically about the incident, E.V. said that he was "throwing tables" and the teacher "took paper and wiped [his] eyes."
When he was asked what he told the bus driver, E.V. responded: "I cried because the kids called me 'baby' and I was crying saying, 'Don't call me baby.'" He also indicated that he felt safe at school and he wanted to go back to school. E.V. never stated to the IAIU investigator that S.P. kicked him.
E.V.'s school bus driver informed the IAIU investigator that E.V. was crying one day because his teacher screamed at him. The bus driver told the investigator that E.V. did not say anything about the teacher kicking him. Both E.V.'s babysitter and his foster mother, however, told the investigator that E.V. said his teacher had kicked or hit him.
The IAIU investigator interviewed the child's special education teacher, Ms. Carswell, on October 5, 2006. She recalled that the incident occurred when E.V. started a tantrum because he wanted a pair of scissors. Carswell continued teaching while S.P. tended to E.V. She informed the investigator that she did not see S.P. kick E.V.; she only heard a "bang" and S.P. say "'Stop,'" after which she then heard S.P. take the chair away from E.V.
Two children, N.G. and D.S., both seven years old, reported having witnessed E.V. kick S.P. and S.P. respond by kicking him. N.G. told the investigator she was sitting at her desk when S.P. kicked E.V. while he was on the floor. She explained that E.V. was "laying on the floor kicking the closet" and S.P. kicked him hard on one leg. D.S. also reported that E.V. "kicked the door and the teacher [S.P.] kicked him back."
S.P. informed the IAIU investigator that E.V. is "[b]asically . . . a good kid" unless he doesn't get his way. She noted that he cries everyday and sometimes the principal or vice principal will take him for a walk. S.P. denied kicking E.V. and reported that on the day of the alleged abuse E.V. was on the floor crying and kicking. While he was doing that, he was flipping the chair. It was in the corner. I came in the door. E.V. was crying kicking and throwing a chair. . . . I said to him "You can not throw the chair around, someone may get hurt." So I said, "Please give me the chair." [A]nd he gave it to me and I sat the chair next to the desk. He kept kicking and I told him to get up. I went on back to my desk to do my folders.
S.P. reported that Ms. Carswell was occupied with the other children at the time of the incident.
On October 10, 2006, the IAIU investigator informed the school principal that S.P.'s "actions did not rise to the level of abuse as defined by statute." She did say, however, that it appeared there was "some physical contact" between S.P. and E.V. while he was laying on the floor, but it did not appear that S.P. kicked E.V.
After completion of the interviews, the IAIU issued its report on November 29, 2006 in a letter to the District's Superintendent. Under the heading of "Investigative Finding," the IAIU found that
Physical Abuse/Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare was unfounded in accordance with N.J.S.A. 9:6-8.21. However, some information obtained during the investigation raised an issue relative to an action of Instructional Assistant [S.P.].
No adjudicative findings have been made.
The [IAIU's] review herein is solely investigative.
The letter also set forth the IAIU's "Evaluation of Facts":
The results of the investigation indicate that Student [E.V.] age six, was not injured by the actions of Instructional Assistant [S.P.]. However, the information gathered indicates that at one point on September 27, 2006, [E.V.] became disruptive and aggressive in class and [S.P.] responded by kicking the child. The information gathered indicates that [E.V.] tossed a chair and told [S.P.] to shut up and at the point he was kicked, was in the midst of a tantrum and was lying on the floor, kicking a closet. Although [S.P.'s] kick was of limited force and [E.V.] was not harmed, [S.P.'s] action was inappropriate and placed the child at some risk of harm. However, [S.P.'s] action did not meet the statutory requirement to find abuse.
The remedial actions taken by the District at the time of the investigation were also enumerated in the letter, but the IAIU made no recommendations for corrective or disciplinary action. The letter was copied to the Passaic County Superintendent and the Manager of the Northern Passaic County IAIU, but was not sent to S.P.
S.P. received a separate letter from the IAIU also dated November 29, 2006. The findings were nearly identical to the letter sent to the District, but the "Evaluation of Facts" differed significantly. In S.P.'s letter, the IAIU stated that her "action placed [E.V.] at some risk of harm; however, [her] action did not meet the statutory requirement to find abuse." There was no description of the incident and no mention of S.P. kicking the child. In December 2006, the District terminated S.P.'s employment, and she filed a grievance challenging the termination, which is still pending.
On January 11, 2007, S.P. filed her Notice of Appeal of that portion of the November 2006 letter sent to the District, which found E.V. was kicked by S.P. and S.P.'s "action was inappropriate and placed the child at some risk of harm."*fn1 S.P. argues that these findings resulted in her termination from employment; are beyond the statutory authority of the IAIU; and are not based on substantial evidence. S.P. also appeals the IAIU's failure to notify S.P. of these findings and recommendations in its November 29, 2006 letter to her.
On September 20, 2007, the IAIU sent another letter to the District amending its findings "[i]n light of a recent court decision." Under the heading of "Investigative Finding," the IAIU again stated that abuse was unfounded as related to S.P.'s actions. The finding that "some information obtained during the investigation raised concerns regarding the actions of Instructional Assistant ...