On appeal from Department of Children and Families, Docket No. AHU#08-0479, and Department of Education, Docket No. 248-8/08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 27, 2010
Before Judges A.A. Rodriguez and C.L. Miniman.
Respondent R.A. appeals from final agency action of the Department of Children and Families (DCF) sustaining a finding by its Institutional Abuse Investigation Unit (IAIU) of child abuse based on R.A. inflicting excessive corporal punishment on Dwayne*fn1 and ordering that R.A.'s name be placed in the DCF's child abuse registry ("the Central Registry") pursuant to N.J.S.A. 9:6-8.11 and N.J.A.C. 10:129-5.4(c)(2).
R.A. also appeals from final agency action of the Department of Education (DOE) dismissing him from his tenured position because he engaged in conduct unbecoming a school administrator by inflicting corporal punishment on Dwayne and Howard.
The two matters were consolidated at the agency level on September 17, 2008, pursuant to N.J.A.C. 1:10A-17.1. Because the findings by both agencies are based on sufficient credible evidence in the record and are neither arbitrary, capricious, nor unreasonable, we affirm.
We begin with the largely undisputed facts. On December 4, 2007, Dwayne, a classified freshman student at a high school in Newark who has ADHD,*fn2 and two other students attended an informal tutoring session with Dwayne's English teacher, Devoia Stewart. At that time, R.A. was a tenured vice principal at the school, which is part of the State-Operated School District of the City of Newark. The other students in the classroom were beating on the table. Stewart was grading papers and told them to stop the noise. Then, R.A., whose office adjoined the classroom, sent his student intern, Donald, to tell the students to quiet down. Donald did so, and Dwayne responded verbally to his instruction to be quiet.
R.A. went to the classroom to talk to Dwayne. Thereafter, Dwayne, Donald, and R.A. left the classroom. This was followed by a commotion in the hallway, during which Donald restrained Dwayne at R.A.'s instruction. Donald grabbed Dwayne from behind, their feet became entangled, and they fell to the floor. R.A. had a stick in his hand, variously described as a yardstick or a three-foot-long pointer, and touched Dwayne with the stick while he was being restrained.
The more specific descriptions of what occurred diverge. After hearing Donald's instruction to be quiet, Dwayne claimed that he told the students making noise that they did not have to stop because R.A. was not going to do anything. R.A. went to the classroom and confronted Dwayne after Donald reported Dwayne's statement to R.A. Donald denies making any such report, testifying that he heard Dwayne say, "Tell [R.A.] I said--." Stewart confirmed that Dwayne said this. Donald related that R.A. was behind him and that R.A. heard Dwayne's remark and confronted Dwayne.
Both Dwayne and Stewart agreed that Donald left, R.A. then entered the classroom carrying the stick, and he approached Dwayne at the computer. According to Dwayne, R.A. told him, "'I know it was you, your smart mouth,'" and then struck him several times on the left arm with the stick. Stewart did not hear or observe this but saw Dwayne leap out of his chair and grab and rub his hip.
According to Donald, however, he and R.A. left the classroom together and returned to R.A.'s office. Dwayne noisily ran into the hallway, and R.A. sent Donald to get him. This is contradicted by Dwayne and Stewart, who agreed that, when Dwayne ran out of the classroom, he was followed by R.A. and Donald, and the commotion ensued thereafter.
According to Dwayne, after Donald grabbed him from behind, R.A. repeatedly struck him again, this time on the left arm, but Donald testified that R.A. merely poked Dwayne in the torso and hip. Dwayne then eluded Donald's grasp and escaped into R.A.'s office.
Donald claimed that he let Dwayne go and that Dwayne ran into R.A.'s office, slamming R.A.'s fingers and foot in the door. When he and R.A. pushed the door open, Dwayne ran around the table in the office, knocking papers and a glass figurine onto the floor. Stewart heard a commotion and scuffling in R.A.'s office and heard a glass object breaking. She thought that they were engaged in horseplay. Dwayne said he then ran back to his classroom. Donald also claimed that Dwayne later slipped a note under R.A.'s office door in which Dwayne made some uncomplimentary remarks about R.A. and threatened to damage his car. He said that R.A. threatened to suspend Dwayne for writing the note, but another student pleaded with him not to do so because Dwayne helped him with his homework. As a result, R.A. told Dwayne to clean up his office and kept him in detention until the end of the day. Stewart, however, testified that Dwayne returned to the classroom several minutes after he left.
Returning to the undisputed facts, when Dwayne returned to the classroom, he showed Stewart a new black-and-blue bruise mark and a welt on his arm, which was hot to the touch. Dwayne seemed bothered, uneasy, nervous, and unsure what to do, but he did not tell Stewart specifically what happened.
Dwayne called his mother after leaving school and told her he had something to tell her but did not mention the incident. At home, he showed Theresa his left arm, told her that R.A. hit him with a yardstick, and said he had to call a Dr. West, the Assistant Superintendent of Special Programs, and tell him what R.A. did. He did so immediately.
Thereafter, Dr. West said that he would write up the incident and instructed Theresa to take Dwayne to the nearest hospital. Dwayne then told his mother that some of the other boys were making noise in the classroom when Donald entered and ordered them to stop banging. Dwayne admitted that he told them they could continue banging because Donald was not going to tell R.A. about it. R.A. then entered the room a few minutes later and hit Dwayne with the yardstick. Dwayne said he ran out of the classroom, but Donald caught him at R.A.'s instruction. R.A. resumed hitting Dwayne on the arm. Dwayne said he fled into the closest open room, which was R.A.'s office, and ran around the conference table and out the door, retreating back into the classroom.
Theresa saw red, bluish-purple bruises on Dwayne's arm, from which one could "tell . . . [Dwayne] was struck with an object." Dwayne complained of pain and a burning feeling from the bruises, and both he and Theresa were upset. These bruises were not present before he went to school. Before taking him to the emergency room, Theresa took photographs of Dwayne's arm, which depicted dark, narrow, linear marks on his arm.
Once at the hospital, Dwayne complained that the assistant principal had hit him with a yardstick. X-rays were taken, the bruises were bandaged, and Dwayne was given Ibuprofen. The treating physician, Dr. Catherine Scarfi, noted "[m]ild swelling, tenderness, and ecchymosis of [Dwayne's] left lateral upper arm, with abrasions to both upper and lower arm [and] pain on palpitation to left forearm." The hospital staff reported the incident to the police, and a police officer took a report from Theresa and Dwayne at the hospital. Theresa told the officer that the incident occurred during the after-school tutoring session, and she later filed an incident report.
On December 5 or 6, 2007, Theresa spoke with the DCF about the incident. Tracy Oliver, a DCF caseworker, was assigned to the matter. Theresa first spoke with Oliver on or about December 7 and then again at least twice more that month. Oliver also spoke with Dwayne approximately three times.
Oliver documented her investigation, including her conversations with Dwayne, Theresa, Donald, R.A., Stewart, Dr. Scarfi, school administrators, and some students. Certain disparities began to emerge in the information she garnered.
When Oliver met with Dwayne on December 15, she observed a purplish mark on his left arm. Dwayne's recitation of the events was consistent with his earlier reports. He reported that R.A. hit him "harder and harder each time" and that he had "scars on [his] arms that were bleeding." He showed them to his mother, and she took him to the hospital.
Theresa also related her consistent understanding of the events. She believed that R.A. hit Dwayne because, in November 2007, R.A. had asked if Theresa wanted him to use the yardstick to "get through to [Dwayne]" and said that Dwayne "knows that he will get at him with that stick." Theresa reported that she declined and thought at the time that R.A. was joking.
Stewart told Oliver that she had seen R.A. "be aggressive with some kids before" and "ha[d] seen him pushing or grabbing students inappropriately several times." Her statements to Oliver were consistent with her testimony.
R.A. reported to Oliver that he heard noise from the classroom next to his office on December 4, 2007, and sent Donald to tell the students to be quiet. Through the wall, he heard Dwayne instruct Donald to tell R.A. to "sit down and be quiet," which Donald then confirmed to him. R.A. then went to the classroom, told Dwayne "to get to work," and went back to his office. After hearing the noise again, R.A. went back to the classroom and told Dwayne to be quiet. He walked back to his office but heard students engaged in horseplay in the hall. He told them to stop playing; Donald then grabbed Dwayne and brought him to R.A. Dwayne continued the horseplay, and they "were all clowning."
R.A. then "poked [Dwayne] very lightly in the abdomen with the [yard]stick," which he had confiscated earlier in the day from a student. R.A. said they were "playing," and Dwayne was "laughing." Dwayne next went into R.A.'s office, ran around, and accidentally broke a glass statue. They then sat down, looked at a yearbook, and "everybody was laughing and joking." R.A. denied poking Dwayne with the yardstick as a punishment and denied telling Donald to grab Dwayne, although he acknowledged he "poked [Dwayne] twice like you do the Pillsbury Dough Boy." He thought any injury must have come during the horseplay, ...