May 20, 2009
DIVISION OF YOUTH AND FAMILY SERVICES, PETITIONER-RESPONDENT,
On appeal from the New Jersey Division of Youth and Family Services, Agency Docket No. AHU 05-019.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2009
Before Judges Skillman and Grall.
M.C. appeals from a final decision of the Director of the Division of Youth and Family Services (DYFS), issued on September 12, 2008, which rejected a recommended initial decision of an Administrative Law Judge (ALJ) and found that a charge of child abuse against appellant had been substantiated.
The Director's finding of child abuse was based on an incident that occurred in the kitchen of appellant's home on July 26, 2000. When appellant returned home from grocery shopping with her two children, C.C., who was five months old, and W.C., who was four years old, she found a sealed box on her porch. She put C.C., who had fallen asleep, in an upstairs bedroom, and went back to the kitchen to open the box. The linoleum floor in the kitchen was wet and slippery because it was raining outside and appellant and W.C. had tracked in water while coming into the kitchen to put away the groceries. Appellant picked up a large pair of sharp scissors to open the box. However, W.C. wanted to open the box himself and tried to grab the scissors from appellant. When appellant told W.C. he could not open the box, he became agitated. W.C. left the kitchen to find another pair of scissors, but he was unsuccessful. When W.C. returned to the kitchen, still agitated, he kicked the kitchen garbage can and started to climb up a stool to gain access to the scissors appellant was using to open the box. Appellant then attempted to push W.C. away from the scissors with her foot and kicked him in the leg. W.C.'s feet slipped out from under him, and he fell down. As a result of this incident, W.C. suffered a fractured left femur.
The Mercer District Office of DYFS conducted an investigation of the incident, and on August 14, 2000, it sent a letter to appellant notifying her that "child abuse was substantiated. You have been identified as harming the child or placing the child at risk of harm." The letter further indicated that appellant could challenge the DYFS District Office's finding of substantiated child abuse by contacting "the Administrative Review Officer . . . to request a Regional Dispositional Conference."
By letter dated September 26, 2000, appellant's counsel requested such an administrative review.
DYFS took no further action regarding the matter for nearly four years. On July 24, 2004, DYFS provided appellant with a copy of the investigative report that had resulted in the District Office's finding of substantiated child abuse and offered appellant an opportunity to respond either in writing or in person.
Thereafter, on February 9, 2005, appellant and her counsel presented their opposition to the finding of substantiated child abuse at a meeting held at the Mercer District Office.
On February 14, 2005, an Administrative Review Officer issued a report which affirmed the Mercer District Office's finding of substantiated child abuse based on the July 26, 2000 incident. In reaching this conclusion, the Review Officer stated:
There is no dispute about the facts of this case. [Appellant] acknowledges kicking, pushing or in her words "scooting" [W.C.] on the leg to keep him from grabbing the scissors on July 26, 2000.
Although the situation required intervention to keep [W.C.] away from the scissors, the Review Officer concludes that [appellant's] action(s) in the incident were not "necessary or justified, reasonable or appropriate" and that the preponderance of credible evidence does support the determination that abuse occurred. The circumstances of the incident; the injury sustained by [W.C.], the level of force to break the bone were all important factors in this determination. . . .
In the Review Officer's opinion, [appellant] used poor judgment in her method of intervention in this situation. While [appellant] stated she wanted to keep [W.C.] safe from the scissors, she kicked/scooted at him with her foot and placed him at serious risk by use of excessive force.
Appellant requested an administrative hearing to challenge the finding of substantiated child abuse, which DYFS transmitted to the Office of Administrative Law. Thereafter, appellant filed a motion to dismiss the abuse charge on the ground of undue delay. The ALJ assigned to hear the case denied the motion.
The ALJ conducted a contested case hearing on April 22, 2008. Appellant was the only witness at the hearing. She testified that W.C. was "very persistent, and increasingly agitated" by her refusal to give him the scissors to open the box that had been left on their porch. After his effort to find another pair of scissors was unsuccessful, he "expressed his frustration by kicking [the] kitchen garbage can." At this point, according to appellant, W.C. "wanted to get up on the stool and hold the scissors" and was "very persistent" in this effort. Appellant said "no" a number of times, but W.C. continued his efforts to gain access to the scissors. Then, according to appellant, "I shoved him away with my leg" and he fell to the floor. In responding to a question as to whether she had kicked her son, appellant said: "I wouldn't even characterize it as a kick, but as a leg sweep[.]" After W.C. fell to the floor, he complained of severe pain in his leg and appellant immediately called 9-1-1.
On cross-examination, the Deputy Attorney General representing DYFS questioned appellant about reports prepared by persons who interviewed her immediately after the July 26, 2000 incident, which indicated that she had kicked W.C.:
Q: Did you intentionally kick at him?
A: I know I keep sticking on this point, but I would not characterize it as "a kick," I would characterize it as I pushed him away hard with my leg. And I do realize that's not what the first few pages seem to say.
Q: You don't deny that that was the way that you worded it at the time to these various personnel, though?
A: No, no.
Q: Did your foot make contact with his leg?
A: Some part of my leg definitely made contact with his leg.
DYFS relied solely upon documentary evidence in support of its claim that appellant committed an act of child abuse upon W.C. Except for some variation in the characterization of appellant's action resulting in W.C.'s injury as a shove, leg sweep or kick, the documents introduced by DYFS indicated that appellant's statements immediately after the July 26, 2000 incident were consistent with her trial testimony. For example, the report prepared by the Lawrenceville Township Police Officer who investigated the incident stated:
[Appellant] stated that at about 1500 hours on today's date she had received a package by UPS. She states that she brought the package into the house and was attempting to open it using a pair scissors on the kitchen floor. Her son [W.C.], who was in the kitchen at the time, was trying to grab the scissors from her. She said that she repeatedly told her son to move away from the scissors but he continued to grab them. [Appellant] then kicked at him to push him away from the scissors for his safety, however, he was wearing over-sized wet boots which caused him to slip on the kitchen's linoleum floor.
Similarly, the Family Preservation Service report submitted at DYFS's request stated: "[Appellant] claimed that in order to prevent her son [W.C.] from being harmed on scissors she was using, she pushed him away with her legs, which caused him to slip and go into the air, falling down hard on the kitchen floor and breaking his leg."
The ALJ who conducted the hearing found appellant to be a credible witness. He stated: "[Appellant] remained calm, answered all questions directly, was not evasive and did not try to evade the difficult questions. She appeared to be a very concerned mother[.]" Based on appellant's testimony and the other evidence presented at the hearing, the ALJ found: "[Appellant] was frustrated and worried that W.C. would grab the scissors and hurt himself. She attempted to push W.C. away from the scissors and kicked him in the leg. She did not have intent to injure him." The ALJ concluded that appellant's actions on July 26, 2000 did not constitute the "willful and wanton misconduct" required to justify a finding that she had abused W.C. within the intent of Title 9. The ALJ found that appellant's actions "were reactive to the situation. Her intent was to move the child away from the perceived danger of the scissors."
The Director of DYFS appears to have accepted the ALJ's factual findings regarding the occurrence of the July 26, 2000 incident. Her decision states:
The facts found by ALJ Stein in this matter are simple. M.C. was frustrated and worried that W.C. would grab the scissors and hurt himself. She attempted to push W.C. away from the scissors and kicked him in the leg. W.C. sustained a serious injury; however, M.C. did not intend to injure him.
Nevertheless, the Director rejected the ALJ's recommended initial decision and concluded that DYFS's child abuse charge had been substantiated. In reaching this conclusion, the Director stated:
[Appellant's] action was an excessive response to W.C.'s persistence. [Appellant] knew or should have known that kicking W.C. under these circumstances could lead to serious injury, serious injury which ultimately occurred. [Appellant], out of frustration and worry, kicked W.C. causing him to displace his femur. Further, as evidenced by P-11 W.C. was subjected to major surgery, medicated for pain, and required to wear a body cast (spica cast). [Appellant] may not have intended to cause an injury to her son, but the kick itself was not accidental. Given the definition of an abused or neglected child at N.J.S.A. 9:6-8.21(c), case law found in G.S. as set forth above, the evidence in this matter requires a finding of child abuse. I CONCLUDE that [appellant] failed to exercise a minimum degree of care in providing her child with proper supervision and to substantial risk of harm, and harm which did occur.
The Director's conclusion that the child abuse charge against appellant had been substantiated rested primarily upon G.S. v. Dep't of Human Servs., 157 N.J. 161 (1999). In G.S., the Court concluded that a parent or other caregiver can be found to have committed an act of abuse or neglect for accidentally-caused injuries. Id. at 172-77. However, the Court also concluded that a finding of abuse or neglect cannot be based on a finding of simple negligence; the action of a parent or other caregiver must have been willfully or wantonly negligent to support a finding of abuse or neglect:
The phrase "minimum degree of care" denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. Knowledge will be imputed to the actor. . . . .
Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others.
[Id. at 178-79 (citations omitted).]
The evidence presented at the OAL hearing could support the conclusion that appellant's actions on July 26, 2000, which resulted in a serious injury to her child, were negligent. Appellant could have avoided the risk of injury to W.C. by putting the scissors in a safe place, diverting the child's attention from the unopened box, and completing the opening of the box at some later time, rather than using her foot to push, shove or kick W.C. out of harm's way. A trier of fact could find that appellant's failure to follow this course of action constituted a failure to exercise due care under the circumstances, particularly since she knew or should have known that the kitchen floor was wet.
However, the facts as found by the ALJ, which the Director apparently accepted, do not support the conclusion that appellant's conduct was willfully or wantonly negligent. To support that conclusion, the evidence would have to show that appellant knew or should have known that "injury [was] likely to, or probably [would], result," from her action. Id. at 178. Even if appellant's effort to prevent W.C. from gaining access to the scissors was properly characterized as a kick rather than a push or shove, there is no basis for finding that an injury to the child was likely to or probably would result. Although a parent or other caretaker could kick a child with sufficient severity that there would be a probability of injury, the evidence does not indicate, and the Director did not find, that appellant administered that kind of kick to W.C. In fact, DYFS acknowledges that the evidence does not indicate whether W.C.'s injuries resulted from the impact of the kick or from his slipping on the wet floor and falling. It is common for four-year-olds to fall on the floor but falls ordinarily do not result in injury, much less the kind of serious injury that occurred in this case. DYFS was justified in reacting with suspicion to appellant's description of how the July 26, 2000 incident occurred, but DYFS did not present any medical or other evidence at the hearing before the ALJ that could justify a finding that appellant's testimony was untruthful, and the Director did not so find.
Accordingly, we reverse the final decision of the Director of DYFS finding that the child abuse charge against appellant was substantiated.
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