August 29, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, RESPONDENT,
On appeal from a Final Agency Decision of the Department of Children and Families, Docket No. AHU 04-008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2008
Before Judges Graves and Sabatino.
On July 30, 2003, N.B., a fifteen-year-old resident of the Woodbridge Child Diagnostic and Treatment Center (Woodbridge) accused R.R., a youth worker supervisor employed by the Division of Youth and Family Services (DYFS), of kneeing him in the groin. The matter was investigated by the Office of the Public Defender (OPD), Law Guardian Office, and by letter dated September 9, 2003, R.R. was notified the OPD substantiated the allegation that he physically abused N.B. on July 30, 2003.
After R.R. appealed the OPD determination, the matter was transferred to the Office of Administrative Law (OAL) for a fact-finding hearing.
The OAL hearing was conducted on April 19, August 1, August 31, and September 26, 2005. On March 7, 2006, the Administrative Law Judge (ALJ) concluded the evidence presented by DYFS and R.R. was in "equipoise," and he reversed the OPD finding that R.R. physically abused N.B. in violation of N.J.S.A. 9:6-8.21(c). On November 16, 2006, the final agency decision rejected the ALJ's decision and affirmed the finding of abuse.
On appeal, R.R. presents the following arguments:
POINT I THE STANDARD FOR REVIEWING THE FINAL DECISION OF AN ADMINISTRATIVE AGENCY.
THE FINAL AGENCY DECISION IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.
A. ALNISA FLOOD
THE ALJ PROPERLY CONSIDERED ALL RELEVANT EVIDENCE TO MAKE HIS CREDIBILITY DETERMINATION.
After reviewing these contentions in light of the entire record and the applicable law, we are satisfied they do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We conclude that the final agency decision is supported by substantial credible evidence, and we affirm substantially for the reasons set forth in the agency's well- reasoned written decision, with only the following comments.
As noted by the ALJ, the purpose of the administrative hearing was to determine "whether R.R. committed abuse by kneeing N.B. in the groin area." During cross-examination on August 1, 2005, N.B. provided the following testimony:
Q: . . . I just want to be clear, N., as to what happened when Mr. R. came into the lobby and I believe you testified that you went in the opposite direction he was directing you towards, is that right?
Q: Then you said he came up behind you and grabbed your shoulders and kneed you in the groin, is that right?
A: He grabbed my shoulder, pulled me, and then started pushing me towards the back door, and then I started pushing him back, and as I was pushing him he pulled me down by my shoulders and kneed me in my nuts.
This testimony was corroborated by another resident, N.M.,*fn1 who was fifteen years old when she testified as follows:
Q: Did you say, "Mr. R. kicked N. in the groin?"
A: No, he kneed him.
Q: Okay, When N. fell -- I'm sorry. Why don't you tell me what happened again after Mr. R. allegedly kneed N. in the groin.
A: He fell on the ground.
Q: He fell on the ground. And then what happened?
A: That's when he started crying, and that's when people came out and helped him.
Q: How do you know he was really crying?
A: Because I seen his face and he couldn't talk.
Q: . . . [H]ow do you know he couldn't talk?
A: Because they were asking him questions and he couldn't say anything.
Q: Who was asking him questions?
A: The staff.
In addition, Alnisa Flood, a youth worker who was employed by Woodbridge on the day of the incident, testified she took N.B. to the nurse after she saw he was crying and he "wouldn't tell anybody what was wrong."
Q: Describe what he was doing when you saw him.
A: He was on the ground crying, like rocking.
Q: Okay. And when you saw him, describe exactly what he was doing.
A: On the ground crying, rocking back and forth. Then he got up and like walked around. He was walking around, and that's when I just said, "Come in. I'm just going to take you to the nurse," because he wasn't getting any better. . . . He walked around for a while crying, wouldn't tell anybody what was wrong. Then he just stopped crying and wouldn't say anything. And that's when I said, "All right. I'm going to take you to the nurse."
Q: . . . [D]id he look like he was in pain?
A: Yeah, he was in pain. He was in pain.
Q: What was in pain?
A: He was holding like his stomach. He was holding his stomach like bent over.
Q: And in your experience with working with kids with these types of diagnos[es] at Woodbridge, did this look like it was serious?
A: Yeah, it looked serious. It looked serious, and he wasn't playing, because it wasn't like he was trying to be around all the other kids for attention. He had isolated himself from everybody. He was going inside and then continued to walk around and not tell anybody what was wrong. I could tell he wasn't playing. That's why it was serious to me, because it wasn't --he wasn't joking.
Q: And when you approached him, what did you do?
A: I just asked him what was wrong several times. He never answered. He never answered me and told me what was wrong.
Q: What did you do next?
A: Nothing. I let him walk around the building a couple of times before I took him to the nurse.
DYFS also relied on the testimony of (1) Patrick Lodato, the Acting Director of Woodbridge at the time of the incident; (2) Eleanor Lesperance, the OPD investigator; (3) Dr. Anil Mehta, who examined N.B. on July 31, 2003, the day after the incident; (4) K.R., a Woodbridge resident who testified she saw R.R. knee N.B. "in his private part" on July 30, 2003; and (5) Marianne Janicki, the head nurse at Woodbridge on the day of the incident. On the other hand, R.R. took the witness stand in his own defense and testified that he never kneed N.B. in the groin area.
The ALJ found that both "N.B. and N.M. provided credible testimony" and his specific findings with regard to N.B. included the following:
While N.B. has more details in his statement then his testimony, I do find that N.B.'s testimony was credible. N.B.'s body language and demeanor clearly showed he did not want to be there testifying. However, he appeared truthful about what he remembered and was honest in limiting his testimony to what he recalled. In addition, there was an overall consistency in his testimony and his statement, particularly about being kneed in the groin area.
With regard to N.M.'s testimony, the ALJ stated:
N.M.'s testimony was credible because she was not a friend of N.B. and had no motive to testify against R.R. or in favor [of] N.B. She appeared believable in stating that R.R. did in fact knee N.B. Her credibility is diminished, however, by her testimony that no other kids were around at the time and that the alleged assault occurred near the girls and boys units. The consistent testimony from the other witnesses was that the assault occurred in the lobby and that there were other kids in the area. Moreover, she is the only witness who testified that staff came over (inside the facility) and helped N.B. right after the alleged assault.
The ALJ afforded less weight to the testimony of Flood, who called the abuse hotline after she found N.B. laying on the ground crying.
Flood was a former resident at Woodbridge. She has known R.R. for over 10 years and R.R. served as her supervisor.
She does not know R.R. to be a liar, nor has she ever known him to hurt a resident. She testified that residents tend to exaggerate and make threats if they do not get their way. She said that residents will threaten by saying "I'll say that you hit me[."] Flood . . . . testified that N.M. has lied and is not honest all the time. K.R., however, she said did not lie.
Flood felt that N.B. was not acting out or trying to get attention. He seemed to genuinely be in pain. Her credibility as to whether N.B. was in pain or faking it are diminished because one hour later (after seeing N.B. crying) she saw S.C. crying and claiming that R.R. abused her. Flood believed S.C. also, but S.C's boyfriend told the investigator that R.R. never touched S.C. The investigator could not substantiate the charges. Flood's belief that S.C. was not faking it when she was later found to not be credible by the investigator compromises her opinion that N.B. was genuinely in pain.
Notwithstanding "the credibility issues surrounding DYFS's case," the ALJ stated the "evidence does seem to establish that R.R. did in fact knee N.B. This core of credibility, however, is matched by the very credible testimony of R.R. . . . [T]he most credible witness in this case."
The responsibilities of an ALJ and agency head in a contested case are set forth in the Administrative Procedure Act (APA), which states in pertinent part:
A recommended report and decision which contains recommended findings of fact and conclusions of law and which shall be based upon sufficient, competent, and credible evidence shall be filed . . . with the agency in such form that it may be adopted as the decision in the case . . . and an opportunity shall be afforded each party of record to file exceptions, objections, and replies thereto, and to present argument to the head of the agency or a majority thereof, either orally or in writing, as the agency may direct. The head of the agency, upon a review of the record submitted by the administrative law judge, shall adopt, reject or modify the recommended report and decision. . . . 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 reason for doing so. 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.
Under this provision, of the APA, to the extent an ALJ's findings of fact are based on "issues of credibility of lay witness testimony," the agency head must accept those findings unless they are "arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." Ibid.; see also Cavalieri v. Bd. of Trs. of Pub. Employees Ret. Sys., 368 N.J. Super. 527, 533-34 (App. Div. 2004). In this case, the agency head followed the requirements of the APA and correctly concluded that the ALJ's credibility findings regarding Alnisa Flood and R.R. were not supported by sufficient, competent, and credible evidence. With respect to Alnisa Flood, the agency head noted:
The ALJ's finding that Flood believed S.C.'s claim that R.R. "abused" her is not only an improper and irrelevant factor to consider in assessing Flood's credibility but is not supported by the record. In fact, the record reflects only that Flood prepared an incident report regarding S.C. in which she wrote:
The above resident [S.C.] came on the unit in a full rage, yelling and crying. I asked Samantha what happened and she told me that [R.R.] pushed her in the back twice and told her to "get the fuck off the unit." [S.C.] asked me to open her door but I refused to until she calmed down. I called Rich Merricks and he informed me to write the incident up.
Flood never testified, and there is no evidence in the record, that she ever told anyone that she believed S.C. Significantly, she did not make a call to the Division's centralized screening unit, as she would have been required to if she had reason to believe S.C. had been abused. N.J.S.A. 9:6-8.10. In contrast, and contrary to the ALJ's findings that Flood treated the incident with S.C. the same as that with N.B., Flood made a call to the centralized screening unit to report the incident with N.B.
As to the testimony of R.R., the agency head stated:
[T]he record reveals that R.R.'s testimony was not consistent with his previous statements to Merricks and the investigator. R.R. told Merricks and the investigator that he did not initiate contact with N.B. but that N.B. grabbed his wrists. He testified, however, that contact was initiated when he twice put his hand on N.B.'s shoulder and was shrugged off. (Significantly, this was consistent with N.B.'s testimony and initial statement to the investigator.) Moreover, the ALJ's characterization of the portions of the investigator's report with which R.R. took issue as "not significant to the issue" is inaccurate. The document states, in part:
[R.R.] explained, "It wasn't my intentions to hit or kick, I have a good relationship with all the boys, it was just a typical day here, and he was one of my favorite kids."
The statement, "It wasn't my intentions (sic) to hit or kick" is significant, particularly in light of R.R.'s concession, not referred to in the ALJ's decision that he apologized to N.B. after the incident.
Our role in reviewing the final decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). We will not reverse an agency's decision unless: (1) it is arbitrary, capricious, or unreasonable; (2) it violates express or implied legislative policies; (3) it offends the State or Federal Constitution; or (4) the findings on which it is based are not supported by substantial, credible evidence in the record. Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). In this case, the final agency decision is fully supported by substantial credible evidence and the decision is neither arbitrary nor unreasonable.