August 6, 2009
DIVISION OF DEVELOPMENTAL DISABILITIES, PETITIONER-RESPONDENT,
SHIRLEY MINNIX, RESPONDENT-APPELLANT.
On appeal from the Department of Human Services, Division of Developmental Disabilities.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 16, 2009
Before Judges Axelrad and Winkelstein.
Shirley Minnix appeals from a final determination of the New Jersey Department of Human Services, Division of Developmental Disabilities (the Division), revoking her license to operate a community care residence (CCR) for the developmentally disabled because she physically abused and neglected the clients in her care. On appeal, Minnix argues the board's reversal of the administrative law judge's (ALJ) finding that she was acting in self-defense and thus her conduct did not constitute "abuse" under N.J.A.C. 10:44B-1.3 was arbitrary and capricious. Minnix further contends the record does not support the ALJ's and Division's finding of neglect based on her failure to notify the Division that an adult male was living with her and her failure to report prior police contact, and the Division's conclusion that a license revocation was warranted. We are not persuaded by any of appellant's arguments and affirm.
On October 20, 2004, the Division notified appellant of the revocation of her license to operate a CCR for the developmentally disabled based on allegations of abuse and neglect upon a resident entrusted to her care. See N.J.A.C. 10:44B-2.1(f)1. By letter dated November 1, 2004, she appealed the revocation, and the matter was transmitted to the Office of Administrative Law for a hearing as a contested case.
The ALJ held hearings on November 30, 2005, October 31, 2006, and January 24, 2007. The following individuals testified on behalf of the Division: James Perkins, the Burlington County Administrator of the Division's Southern Regional Office; Douglas A. Banks, a Special Response Unit (SRU) investigator for the Division; Michael Ludlow, a Borough of Palmyra police officer; and George Kuster, Chief of Licensing for Developmental Disabilities. Appellant testified on her own behalf, along with character witnesses Richard Zellman, Rosemary Burgo, Gail Furrer and Carol Ann Coghill.
Appellant testified about an altercation during the evening of November 7, 2003 with T.V., one of three individuals with developmental disabilities living in appellant's home. After appellant informed T.V. that the State had denied her additional assistance, the resident "looked weird," "jammed" and shoved appellant into a wall. Appellant responded by slapping the resident in the face. The resident then went to her bedroom and slammed the door. Appellant explained that T.V. had slammed doors but had never confronted appellant like this before, and "the only thing [appellant] could think of to stop [her] was to smack her." Appellant further related that she was upset and scared "not for [herself] but for [T.V.] because [she] had never seen her do that[,]" and that she slapped T.V. "[t]o stop [her behavior] because [appellant] had two other clients in the house and [she] didn't want it to get out of hand...."
T.V. called the police after the incident and criminal charges were filed against appellant. The municipal court judge found appellant not guilty of assault based on self-defense.
Upon learning about this incident, the Division suspended appellant's license to operate a CCR pending an investigation of the allegations of abuse and removed its clients from appellant's home. During the course of its investigation, the SRU discovered there was an adult male, Dean Woolston, who had been living in appellant's home since June 2003. Appellant did not notify the Division about him because she first wanted to see how he would get along with the clients in her home. Consequently, the Division was unable to perform the necessary background checks on Woolston. The SRU also discovered that the police had been called to appellant's home on three occasions in 2003, prior to the incident involving T.V. Appellant did not notify the Division of these incidents until the SRU's investigation and, in fact, had initially told the investigator the police only came to her home after the incident with T.V.
On October 15, 2007, the ALJ issued an initial decision. He reversed the Division's finding that appellant physically abused a client in her care. He sustained the Division's finding that appellant neglected the clients in her care based on her failure to notify the Division that an adult male was living in her home and that she had multiple contacts with the police, but recommended the Division consider a lesser penalty than license revocation.
On January 8, 2008, the Division issued a final agency decision rejecting the ALJ's finding that appellant did not physically abuse a client in her care, and revoked appellant's license to operate a CCR for the developmentally disabled. The Division did not address the ALJ's finding of neglect.
On February 25, 2008, appellant filed an appeal of the agency's decision. On leave granted, the Division filed an amplification of final agency decision on April 10, 2008, addressing the ALJ's finding of neglect. The Division affirmed the ALJ's finding that appellant neglected the clients in her care, N.J.A.C. 10:44B-1.3, but held the finding of neglect alone justified the revocation of appellant's license, N.J.A.C. 10:44B-2.1(f)1. This appeal ensued.
A strong presumption of reasonableness attaches to the actions of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525, appeal dismissed, 459 U.S. 962, 103 S.Ct. 256, 74 L.Ed. 2d 272 (1982); Newark v. Natural Res. Council, Dep't of Envt'l Protection, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). This presumption is even stronger when the agency is dealing with technical matters that invoke its expertise. Newark, supra, 82 N.J. at 540.
The scope of judicial review of a final agency determination is severely limited. See In re Carter, 191 N.J. 474, 482 (2007); In re Musick, 143 N.J. 206, 216 (1996). Ordinarily, an appellate court will not upset such a quasi-judicial determination absent a clear showing that it was arbitrary, capricious or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also In re Herrmann, 192 N.J. 19, 27 (2007). We may not vacate an agency's decision because of doubts as to its wisdom or because the record may support more than one result. See generally, Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985). An appellate court will not substitute its judgment for that of an administrative agency unless the agency's determination is "so plainly unwarranted that the interests of justice demand intervention and correction[.]" Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
The Division's decision is entitled to deference because it is the agency with experience in the level and quality of care needed by individuals with developmental disabilities. See N.J.S.A. 30:6D-27(d) (requiring the Division to establish standards for services, including their scope and quality, for persons with developmental disabilities). We are satisfied there is adequate evidence in the record supporting the Division's finding that appellant abused T.V. and its conclusion that appellant's conduct warranted revocation of her CCR license. The Division relied on appellant's admission that she struck T.V. in the face to prevent being pushed by her, which is the type of conduct expressly prohibited in a CCR as set forth in the Manual of Standards promulgated by the Division. See N.J.A.C. 10:44B-1.3 (including within the definition of "abuse," "striking with a closed or open hand"); N.J.A.C. 10:44B-2.1(f) (prohibiting physical abuse or neglect of an individual with developmental disabilities and deeming these offenses sufficient cause for revocation of a license).
The Division was not persuaded that appellant acted in self-defense as her testimony demonstrated no belief that she or the other residents were in danger or that she needed to protect herself or the others from T.V. The Division referenced, for example, appellant's statements that she was not afraid of T.V. but only for her and that she slapped T.V. to stop her behavior "because [she] had two other clients in the house...."
The agency entrusted to protect disabled persons was also concerned that despite appellant's years of experience and training, she did not exhibit an appropriate response to being shoved by an individual with developmental disabilities. As Kuster testified, the appropriate response by a CCR provider to an individual with developmental disabilities who has a behavior issue "is almost always retreat and diffuse" the situation, and options when confronted by such individual who is advancing physically are to either try to diffuse the situation or to call 9-1-1 or the case manager. Appellant, a CCR provider for ten years, however, did not employ any of these options when confronted by T.V., but instead chose to immediately slap her developmentally disabled charge across the face.
"Neglect" is "the failure of an individual to provide for or maintain the care and safety of individuals under his or her supervision...." N.J.A.C. 10:44B-1.3. The ALJ's and agency's findings that appellant failed to notify the Division both that an adult male was living in her home for an extended period of time and that the police had been called to her house on multiple occasions in 2003 are undisputed. The conclusion of neglect logically flows in both instances. It is inconsequential that appellant only intended to provide Woolston with a roof over his head on a "temporary" basis until he could find alternate housing and there was no allegation he imposed any hardship on or problem to the residents. Appellant violated N.J.A.C. 10:44B-2.1(h)(3), which requires CCR providers to notify the Division within five days of any increase of family members in a residence, and prevented compliance with the Division's policy of requiring fingerprinting of all adults who live in a CCR, of which she was notified by letter of January 28, 1997.*fn1 As Kuster testified, these policies are essential so the Division knows who is living in a CCR and whether or not they have a criminal record. See N.J.S.A. 30:6D-13 (mandating developmentally disabled persons to be housed in a wholesome environment with appropriate safeguards and services). By failing to notify the Division that Woolston had moved in, appellant prevented the Division from investigating whether the man living in her home posed a danger to the residents, thereby subjecting them to a potential risk.
It is also of no import that appellant was not convicted of any crime related to her police contacts. The incidents called into question appellant's ability to care for the residents in her home. Her failure to inform the Division of her multiple police contacts constitutes neglect because it prevented the Division from investigating to ensure the safety of the residents. The Division was additionally concerned that two of the prior incidents involved alcohol use by appellant and, as found by the ALJ, her degree of sobriety on the evening of the incident with T.V. was also "drawn into question." In fact, appellant admitted she drank alcohol that evening, although she claimed it was after the altercation, not before. Even so, it was reasonable for the Division to conclude that appellant's consumption of alcohol was an "inappropriate response to an altercation with a DDD client in one's home" and showed "poor judgment." Accordingly, we discern no basis to second-guess the agency's determination in its supplemental opinion that appellant's actions, "which placed the safety and welfare of DDD clients at risk for harm[,]" justified revocation of her license based solely on the neglect grounds.