On appeal from a Final Decision of the Department of Children and Families, Institutional Abuse Investigation Unit.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and J. N. Harris.
Appellant M.S. is a middle school health and physical education teacher. He appeals from a determination of child neglect by the Chief of Staff of the Department of Children and Families (DCF or Department), together with DCF's order to place M.S.'s name in the Department's Central Registry maintained pursuant to N.J.S.A. 9:6-8.11. The agency determination followed a contrary finding by an Administrative Law Judge (ALJ) who concluded that there was insufficient evidence to support a finding of child abuse or neglect by a preponderance of the evidence. From our review of the entire agency record, we find that DCF's determination was not supported by substantial evidence. Accordingly, we reverse.
As the ALJ noted, "many of the facts are in dispute." We gather the following from the factual record presented to the ALJ over a four-day hearing, and reviewed by the Department, taking care to account for the express credibility findings of the ALJ.
On January 18, 2007, while walking outdoors between classes, seventh grader K.R. stopped to cavort with friends outside of the gym facility at the middle school he attended. The gym's windows were protected on the inside by a grate and on the outside by a wire mesh array, set back a few inches from the large, vertically moveable window sashes. When a window pole topped by a metal knob emerged from inside the gym and poked through the outside wire mesh, K.R. grabbed it.
M.S. was inside the gym at the time conducting a class, and it was he who wielded the window pole. As the pole was pulled back inside the gym, K.R. held on until his left hand became trapped against the protective wire mesh. As a result of the pole's movement, K.R. sustained a laceration and nerve damage that required hospitalization, surgical treatment, and physical therapy.
As the details of K.R.'s injury spread throughout the school, its principal immediately contacted the Division of Youth and Family Services (DYFS) to report the incident. Shortly thereafter, an investigator from the Department's Institutional Abuse Investigation Unit (the IAIU) commenced the gathering of statements from witnesses, taking of photographs, and following up on the medical condition of K.R.
After several months of interviews and evidence collection, the IAIU's Findings Report declared that "[p]hysical [a]buse was substantiated regarding [M.S.'s] actions, in accordance with N.J.S.A. 9:6-8.21. [M.S. has] been identified as seriously harming the child(ren) or placing the child(ren) at risk of serious harm by other than accidental means." However, the same Findings Report noted that "[n]eglect/[i]nadequate [s]upervision was unfounded regarding [M.S.'s] actions."
M.S. immediately challenged the conclusions of the Findings Report, which drove the dispute into the Office of Administrative Law (OAL). An ALJ was assigned to shepherd the matter through the OAL, and hearings were conducted over four non-consecutive days commencing in late 2009. Eleven witnesses testified, and over thirty exhibits (including photographs and witness statements) were examined. An Initial Decision was issued on May 21, 2010, which concluded, "substantiation of abuse was not proven." In reaching this decision, the ALJ found the controversy revolved around whether the window pole was "deliberately thrust through the wire mesh" or whether "it came through the mesh unintentionally in [M.S.'s] effort to close the window." Finding the evidence "in equipoise," the ALJ was unable to conclude that the substantiation of abuse was proven by a preponderance of the evidence.
The ALJ canvassed the record in detail, observed the multitude of obvious contradictions and discordances, and ultimately discounted the testimony of K.R. and M.S., characterizing the former's testimony as "lacking in credibility," and noting the latter's testimony "will be given little credence." Instead of relying upon the recollections of the two most involved participants, the ALJ cobbled together findings primarily from the other student eyewitnesses, who were found "essentially credible, except that many of their specific details were at odds with each other." One student witness was ...