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Division of Youth and Family Services v. To.H.

January 28, 2009

DIVISION OF YOUTH AND FAMILY SERVICES, RESPONDENT,
v.
TO.H. AND T.B., APPELLANTS.



On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. 8582-06 & 8583-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 14, 2009

Before Judges Cuff and C.L. Miniman.

Defendant To.H. appeals from a final decision of the Division of Youth and Family Services (DYFS) finding substantiated child abuse and requiring inclusion of her name in the child abuse registry (Central Registry) pursuant to N.J.S.A. 9:6-8.11.

On May 8, 2006, the DYFS Camden North Local Office made a finding of substantiated child abuse against To.H. and T.B., based on their use of excessive corporal punishment on their son, Te.H. To.H. sought a dispositional review of this finding on May 12, 2006. Susan Gertsman, an Administrative Review Officer for DYFS, affirmed the local office's decision on September 29, 2006. On October 3, 2006, To.H. requested a hearing before the Office of Administrative Law and a plenary hearing was conducted before an Administrative Law Judge (ALJ) on April 26, 2007. On May 17, 2007, the ALJ issued a written decision finding that abuse by To.H. had been substantiated and ordered retention of her name in the DYFS Central Registry of child abusers. At the same time, the ALJ reversed the finding against T.B. and ordered his name stricken from the Central Registry. To.H. filed exceptions to this decision on June 4, 2007, and on August 31, 2007, Eileen Crummy, the Director of DYFS, adopted the ALJ's decision and affirmed. We now affirm the agency's final decision.

On Tuesday, January 10, 2006, DYFS in Trenton notified the Camden local office of a report of possible child abuse, which was coded "9-7" to require an immediate response. The referral was made by Dr. Mary Burke at the San Miguel School. Burke, a guidance counselor at the school, reported that Te.H., a thirteen-year-old student in the seventh grade, told a volunteer teacher on Monday, January 9, 2002, that his mother hit him with an extension cord the day before, causing him to have difficulty sitting comfortably in class. DYFS then dispatched Eileen Groark, a Family Service Specialist II, to investigate the incident. Groark interviewed Burke, who stated Te.H. admitted to stealing six dollars from his mother's purse and that his mother beat him with an extension cord as punishment. Burke stated that Te.H. was not a "behavioral problem" in the school. She reported Te.H. had bruises and marks on his arms and that she had called To.H., "who expressed remorse about the incident."

Groark then interviewed Te.H. in the school's guidance office. Te.H. reiterated that To.H. hit him repeatedly with an extension cord on his back, buttocks and thighs because he stole six dollars from her purse, but remarked his injuries were starting to fade. Te.H. told Groark that he could hardly sit in class on Monday or Tuesday because of the pain in his buttocks. When Groark asked Te.H. why he needed to steal money, he stated that he wanted the money to buy school snacks and to buy more minutes for his cell phone. He told Groark that when To.H. informed T.B. about what happened, "he got another beating with a belt." Te.H. remarked that he never stole money before and would never do it again because he knew it was wrong. At the time, Te.H. spent the weekdays with T.B. and the weekends with To.H.

Groark then observed what she characterized as "defense bruises" on Te.H.'s forearm and "extension cord lines on his upper arms, upper thighs, back and buttocks." The marks on Te.H.'s arm were "circular and bruising" and were between a quarter and a half-dollar in size. One mark in particular was a "loop[-]type" bruise with a design in it that could have been from a belt buckle. The marks on his back, buttocks, and thighs were altogether different. They were striated lines, as from an extension cord, and did not look like stretch marks. Groark took photographs of the bruises and marks.*fn1 Thereafter, she arranged to meet with To.H. and T.B. the next day at the home of To.H.

At the meeting, To.H. stated that "stealing had been a constant problem since her son was about seven years old." She stated that he stole six dollars from her on Sunday and had previously stolen five dollars. She also reported that Te.H. had previously stolen $500 from his uncle and, at another time, she caught him doing an "army crawl" across the bedroom floor to her purse while she was supposedly asleep. Additionally, he stole $180 from his maternal grandmother's purse when he stayed at her home over a weekend.

To.H. then retrieved a green belt with a "heavy gold buckle," which she admitted she used to hit Te.H., and showed it to Groark. The design on the buckle matched the design in the loop-type mark on Te.H.'s arm. Groark did not believe that the belt could have inflicted the injuries she saw on Te.H.'s back, buttocks or thighs. To.H. denied hitting Te.H. more than once and denied owning an extension cord. To.H. expressed concern about losing her job with Bancroft Behavioral Health over the incident and told Groark that she wanted to start individual and family counseling.

T.B. told Groark that his son as a "video junkie" who stole money to get more games. T.B. stated that Te.H. had a cell phone and a prepaid card and that he stole the money to buy more minutes. He denied striking his son with either a belt or an extension cord. T.B. told her that he had a different way of disciplining Te.H. and tried to work with Te.H.'s paternal grandmother.

Both parents agreed not to use corporal punishment in the future and signed a Safety Assessment and Safety Plan, which reflected that Te.H. had been beaten with a belt and an extension cord. The mother agreed to get counseling. DYFS thereafter substantiated abuse against both parents, finding enough evidence to show excessive force as a form of physical punishment because there were physical marks.

After Groark testified before the ALJ, T.B. called his mother, M.E.B., who testified that she had not seen any marks on Te.H. after the incident in question and that she had never seen T.B. hit him or physically abuse him. To.H. called her sister B.W.H. to testify, who confirmed that she was present on the night of the incident. When To.H. discovered Te.H. had stolen some money, To.H. "yelled at him, and sent him to his room" upstairs. To.H. then went upstairs while B.W.H. remained in the living room downstairs watching television. B.W.H. testified that she knew Te.H. "received a beating" because she heard To.H. "fussing at him" and she could hear her physically disciplining him. Later, B.W.H. had a talk with Te.H. about not stealing. At that point, Te.H. did not have any visible injuries and was just upset because he got in trouble. B.W.H. could not recall seeing any bruises or marks on Te.H. and testified that he did not look like he was in pain and did not ask for medical care or ice.

The parents called their son to testify. Te.H.'s testimony substantially differed from what he reported to Groark and the school officials fifteen months earlier. He stated that, after he stole her money, he started to go over to a friend's house, but his mother called him back and made him stay in his room the whole day. His aunt B.W.H. was in the house to stay overnight and she and To.H. had a discussion. Then, To.H. went up to his room and disciplined him "with a belt on [his] bottom . . . a little bit of times." Te.H. said that To.H.'s nail broke while she was administering the discipline. He denied that she hit him anywhere other than on his buttocks or that she hit him with a buckle. Te.H. also testified that he was clothed at the time and that the belt did not leave any marks. According to Te.H., the incident was intended to "teach me a lesson in life" and it was the only time it happened.

Te.H. testified that a teacher noticed bruises on his arms and sent him to the school office. He was mad about being pulled out of class and mad about the beating, so he told the guidance counselor that To.H. had beaten him with an extension cord. However, he claimed at the hearing that the marks on his arm were from "past performance" when he was playing football with his friends. Te.H. denied that the marks on his legs were from an extension cord, claiming that they were stretch marks from being "a growing boy." He denied telling Groark that his father hit him, denied that his father had ever hit him with a belt or a cord, and stated that T.B.'s method of discipline was to deprive him of something.

Once the record was closed, the ALJ issued an Initial Decision, stating his fact-findings and legal conclusions:

Having considered all of the evidence and having observed the witnesses, I make the following findings of fact. Te.H., his parents, M.B. (his grandmother), and B.W-H. (his aunt) have a close relationship and all communicate and cooperate in raising Te.H. On Sunday, January 8, 2006, To.H. learned that Te.H. had stolen money from her purse and she confronted him about it in their home. To.H. verbally chastised Te.H., sent him to his room, and, thereafter, To.H. entered Te.H.'s room and repeatedly struck him with a belt. To.H.'s beating of Te.H. was so forceful that B.W-H. could hear it from downstairs. To.H. also called T.B. T.B., a credible witness, counsels Te.H., rewards him for good conduct and withholds privileges from him for misconduct. Sometimes, M.B., a respectable woman who works with the State Police, also counsels Te.H. T.B. came to To.H.'s house and later verbally counseled Te.H. about the repercussions for stealing. T.B. credible denied physically disciplining Te.H. and I do not find that he would have admitted such to Ms. Groark (whose testimony in that regard was mistaken). Days after To.H.'s beating of Te.H., bruises and marks remained visible and left him unable to sit comfortably. Te.H.'s teacher observed the bruises and marks in school. The possible child abuse was reported to the school's guidance office and then to the DYFS. Ms. Groark came to the school and observed the bruises and marks and later interviewed the respondents in To.H.'s home.

After reviewing applicable law, the ALJ concluded:

Consistent with the findings of fact, To.H. struck Te.H., her son, then less than 18 years of age, repeatedly and with force sufficient to be heard downstairs; sufficient to leave bruises and marks, including the impression of the belt buckle, visible for several days; and sufficient to prevent Te.H. from sitting comfortably in class the next day. The bruises and marks did not result from an accident. Consequently, the DYFS has proven that To.H. inflicted "excessive corporal punishment" on Te.H. ...


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