On appeal from Department of Children and Families, Docket No. 2005-5202.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
In these consolidated matters, appellant M.R. appeals from:
(1) a March 6, 2009 final decision of the Department of Children and Families (Department or DCF) finding M.R. physically abused T.H., a sixteen-year old resident of the Mercer County Youth Detention Center (MCYDC); and (2) an April 17, 2009 Civil Service Commission (CSC) decision upholding M.R.'s removal from employment with the County of Mercer (County). We affirm.
Both decisions adopted the findings of fact and conclusions of law of the administrative law judge (ALJ), to whom the cases had been transmitted and consolidated for hearing following: (1) a determination by the Department's Office of Child Services Institutional Abuse Investigation Unit (IAIU)*fn1 substantiating M.R.'s physical abuse of T.H.; and (2) a departmental disciplinary hearing resulting in M.R.'s removal from employment with the County. The following evidence was adduced at the Office of Administrative Law (OAL) hearings on July 8 and August 19, 2008.
Supervising youth worker Brian Dolobacs, who was employed at the MCYDC for sixteen years, testified that he was the supervisor on duty on July 28, 2002. While working in Central Control, he observed on the security monitor youth worker R.W. holding T.H.'s arms above his head and another youth worker, M.R., hitting T.H. in the midsection. Thirty-five minutes after witnessing on the camera what he first thought was "horseplay," Dolobacs found T.H. crying in his room, with blood on his pillow, which appeared to be fresh.
The incident was reported to IAIU the next day, July 29, 2002, and Investigator Elisa Billups interviewed T.H. as well as other residents and staff. According to Billups, T.H. said he was given permission by M.R. to use the bathroom, but that he was taking a long time and began to get mouthy with M.R. In response, M.R. grabbed T.H. by a wrist, put his arms behind his back, and M.R. and R.W. together took T.H. to a table in the center of the pod while T.H. was wearing only a towel. M.R. and R.W. bent T.H. over the table and began to smack him on the buttocks. When T.H. responded with verbal insults toward the staff, R.W. held him in a "full nelson," while M.R. punched him in the chest and side. M.R. laughed and mocked T.H. as he did this. T.H. then went to the bathroom, where M.R. approached and accused him of being disrespectful, pushed his head into a mirror, and smacked T.H. in the face with his hand. T.H. went to his room, where he was assaulted by R.W. Thereafter, T.H. went back to his bed, covered up, and rolled into a ball. Staff came back to check on him, and the nurse was called.
As part of her investigation, Billups interviewed other residents, whose statements generally corroborated T.H.'s version. Specifically, L.W., M.Y., and D.B. reported witnessing M.R. punch T.H. while he was being restrained by R.W. At the conclusion of her investigation, Billups found that T.H.'s allegation of physical abuse was substantiated.
T.H. repeated essentially the same account to Detective Brian Parker of the Ewing Police Department, who was conducting a parallel investigation of the July 28, 2002 incident. Parker testified that T.H.'s statement to him was consistent with the statement T.H. had provided earlier to Billups, while, on the other hand, M.R. denied striking T.H., explaining that he became involved because of T.H.'s threats to staff. Parker took photographs of T.H., which demonstrated some discoloration and bruising to T.H.'s left rib cage and back in three locations. As a result of Parker's investigation, criminal charges were filed against both R.W. and M.R. for child endangerment, assault, and official misconduct, but were later dismissed.
Lionel Henderson, superintendent of the MCYDC, testified as to the policies and procedures of the facility, including a "use of force" policy that forbids abuse or neglect by staff against residents and requires any violation to be reported immediately. In that vein, Henderson said that R.W. and M.R. failed to properly file incident reports and that the circumstances did not warrant their physical intervention, but only a verbal reprimand to T.H. According to Henderson, a "Full Nelson" is never an appropriate restraint technique for a juvenile, even when physical force is otherwise authorized. Consequently, Henderson reported that after M.R. was served with a preliminary notice of disciplinary action, a departmental hearing was held and thereafter a final notice of disciplinary action was issued, removing M.R. from his employment based upon sustained findings of physical abuse of a resident, inappropriate physical conduct with a resident, violation of standard operating procedures, and conduct unbecoming a County employee.
M.R. testified and denied physically striking or abusing T.H. According to M.R., T.H. went into the bathroom against R.W.'s instructions and R.W. pulled T.H. out by the hand before placing ...