On appeal from a Final Decision of the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU #07-548.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2010
Before Judges Lihotz and J. N. Harris.
Appellant S.H. appeals a finding of child abuse by the Director of the Division of Youth and Family Services, Department of Children and Families (collectively, DYFS or Division). The determination is bottomed upon the intentional striking of S.H.'s son's head, which resulted in the unintended consequence of unloosing an eyeglass lens that caused the teenager a temporary eye and face injury. After reviewing the agency record through the prism of the totality of the circumstances -- together with the teachings of our recent decisions in Division of Youth & Family Services v. K.A., 413 N.J. Super. 504 (App. Div. 2010) and Division of Youth & Family Services v. C.H., 414 N.J. Super. 472 (App. Div.), same result on reconsideration, Division of Youth & Family Services v. C.H., ___ N.J. Super. ___ (App. Div. 2010) -- we find that the Division's Final Decision was not supported by substantial evidence. Accordingly, we reverse.
Although the facts are not materially in dispute, we enumerate those that most closely align with the Division's view. We also mention the lengthy procedural history of this matter in order to place in context the events of over five years ago.
On June 17, 2005, defendant's son, D.H., then three days shy of his sixteenth birthday, remained out late with friends and failed to tell his parents that he would be returning home after his assigned curfew. The next day, when S.H. attempted to confront his son about the night before, D.H. stormed off to his room and slammed the door, prompting S.H. to follow in order to teach D.H. how to quietly close a door. The lesson did not go as planned.
In the ensuing discussion, D.H. antagonistically ignored and disregarded the parental advice of his father. This impelled S.H. to physically lash out at his son with a single smack to the side of D.H.'s head to get his attention, causing a lens from D.H.'s eyeglasses to dislodge. The evidence was inconclusive as to whether S.H. used an open or closed hand to administer the swipe. Nevertheless, no bruises resulted directly from that hit. Instead, the lens and damaged eyeglass frame indirectly caused a small scratch under D.H.'s left eye and an injury to the eye itself.
Appellant immediately took D.H. to the emergency room, where it was reported that the child experienced eye trauma and blurry, decreased vision. No stitches were required. A doctor in the emergency room called the Division, and two of its investigators arrived at the hospital shortly thereafter, where they interviewed the treating physician, D.H., and the parents. The following day, on June 19, 2005, D.H. was taken to Dr. Guy S. Mullin, M.D., an eye specialist, who treated D.H. for blurred vision stemming from a bruised retina. By all accounts, D.H.'s injuries resolved within a few months, with no permanent damage, and D.H. has thrived with no physical, mental, or emotional impairments.*fn1
An initial investigation and observation of S.H.'s home was conducted on the day after the incident by DYFS caseworker Gilda Whitehurst. Whitehurst and her supervisor concluded that aside from this instant isolated incident, there were no other safety or welfare concerns for the children*fn2 in S.H.'s family.
On June 20, 2005, DYFS investigator Alexandria Gordon responded to S.H.'s home to conduct a follow-up investigation of the incident. In the Risk Assessment Forms completed in July 2005 by Gordon, and approved by her supervisor, the family was deemed low-risk for domestic violence, demonstrated no safety issues, and indicated `no evidence of immediate or impending danger or threat of serious harm to the children. The family was described as living in a "home [that] was immaculate and large; they had an abundance of food, and all of the utilities were functioning properly."
In a letter dated July 14, 2005, to the referring physician at the emergency room, Gordon wrote:
We have completed our investigation and evaluation of the referral. The Division has determined that the family will not require further services from our agency.
Notwithstanding this advice, on the same date, Gordon, together with a different supervisor, wrote to D.H.'s parents, advising them "[t]he Division's investigation determined that child abuse/neglect was substantiated. You have been ...