On appeal from Final Agency Decision of the Department of Children and Families, Docket No. AHU 07-590.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Yannotti.
Defendant G.D. appeals from a final determination of the Division of Youth and Family Services (Division or DYFS) of substantiated abuse by excessive use of corporal punishment in accordance with N.J.S.A. 9:6-8.21, and the placement of her name in the Central Registry, pursuant to N.J.S.A. 9:6-8.11.
According to the Division's proofs at the hearing before the Administrative Law Judge (ALJ), on February 5, 2007, nine-year-old E.D. was sent to the school nurse by his teacher, who noticed a bump on the back of the child's head. E.D. told the nurse that the previous day while he was playing with his friends at church, his mother, G.D., became angry with him for losing his tie, put her thumb on his throat, "choking [his] breathing," threatened to punch him in the face, and pushed him into a door, which he hit with the back of his head. Upon examining the child, the nurse noticed a raised area on his right occipital that was tender to the touch. She applied ice to the affected area and called the DYFS hotline.
Upon arrival at the elementary school, the DYFS caseworker, Sharyn Bonfonti, observed a "discernable lump" on the right side of the crown of E.D.'s head. When asked how it happened, E.D. repeated what he had told the school nurse, namely that his mother got "really angry" when he was unable to find his tie, choked him until he could not breathe, slapped his face, and pushed him so that his head hit a door. E.D. also informed her that his mother often hits him with a belt on his rear end and back of his legs, causing bruising, and when she does so, she requires that he take his clothes off. E.D. expressed fear of his parents.
Later that afternoon, Bonfonti went to E.D.'s home, where she spoke to E.D.'s four-year old sister, D.D., who said that her mother and father both hit her with a belt. Bonfonti also interviewed G.D., who admitted that she had grabbed E.D. by the throat, but denied choking him, threatening to punch him in the face, or pushing him so that his head hit the door. G.D. explained that she overreacted because her father had purchased the tie for E.D. and had recently lost his job so he could have used the money for himself. G.D. also denied that either she or her husband used belts to discipline E.D. and D.D., or that she slapped her children. When asked to agree to a safety plan not to physically discipline E.D. and to have his injury examined by a physician, she initially refused, but when DYFS then filed an application for custody, G.D. relented and agreed to the protection plan, prompting DYFS to withdraw the complaint.
The next day, February 6, 2007, E.D. was examined by Dr. Priya Stephen, who observed a "bump on the crown of [the child's] head." According to Dr. Stephen, G.D. admitted to grabbing E.D. by the throat, but could not recall his head hitting the door. E.D. told Dr. Stephen that he "fell back into the door when his mother grabbed him."
Following its investigation, DYFS made a finding of substantiated abuse against G.D. Upon G.D.'s request, the matter was transmitted to the Office of Administrative Law (OAL) for a plenary hearing, during which both E.D. and G.D. testified to a different version of the incident than they originally reported. According to E.D., when it was time to leave church, he could not find his tie. G.D. was in a rush so she grabbed his shoulder to "tell him to move along[,]" causing him to step back and hit his head because he "wasn't used to that kind of movement," meaning his mother grabbing his shoulder. E.D. said that he had lied to the school officials, the DYFS investigator and his doctor because, "I guess I had too much envy in me at the time." G.D. also testified that she went to grab E.D.'s shoulder to move him along and this caused him to jump back and hit his head.
Following the hearing, the ALJ affirmed the finding of substantiated abuse against G.D. In doing so, the ALJ credited the testimony of the school nurse and the DYFS caseworker, both of whom "truthfully reported what they observed and were told." In contrast, the ALJ determined that "E.D. and G.D. had fabricated their most recent version of the events." E.D.'s testimony was found not credible because "his demeanor was very befitting of a child who was truly afraid of his parents and was now 'making up a story' to please them." Based on these credibility determinations, the ALJ concluded that, in grabbing E.D. by the throat and pushing him into the door behind him, G.D. failed to exercise a minimum degree of care by unreasonably inflicting injuries upon E.D., thereby impairing the child's physical condition, N.J.S.A. 9:6-8.21(c), and creating the risk of greater harm as well. Consequently, the ALJ affirmed the finding of abuse and placement of G.D.'s name in the Central Registry. The Division thereafter adopted the ALJ's Initial Decision in full, thereby affirming the substantiation of abuse against G.D.
On appeal, G.D. argues that the Division's determination of child abuse is arbitrary, capricious and unreasonable because the February 5, 2007 incident did not rise to the level of a violation of N.J.S.A. 9:8-21c(4)(b). We find no merit in this assertion, R. 2:11-3(e)(1)(D) and (E), and affirm ...