On appeal from the New Jersey Department of Children and Families, AHU #07-241.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2010
Before Judges Fisher, Sapp-Peterson and Simonelli.
Respondent W.G., a middle school assistant principal, appeals from the final decision of the Executive Director of Community Services, Department of Children and Families (DCF), finding that he abused or neglected a student, A.L., within the definition of N.J.S.A. 9:6-8.21(c)(1), (2), (4)(b) and (6). We reverse.
We derive the following facts from the record developed at a hearing before the Administrative Law Judge (ALJ).
At the time of the incident that gave rise to the DCF's involvement in this case, W.G. had been employed as a teacher or assistant principal for over thirty years and was the assistant principal of the middle school A.L. attended for four years. A.L. was an eleven-year-old sixth-grade student who was classified as emotionally disturbed and placed in a self-contained classroom for students with behavioral disabilities.
On November 7, 2006, A.L. refused to complete an assignment from his teacher. He left his chair, walked around the classroom, crawled under tables, and struck the classroom telephone trying to damage it. His teacher called security to remove A.L. from the classroom. When the security guard arrived, he saw A.L. hit the telephone and knock the receiver to the floor. He removed A.L. and escorted him to W.G.'s office.
When A.L. arrived at W.G.'s office, he sat down in a chair and did not say anything. He then left the chair and ran out of the office. W.G. stopped him and returned him to the office.
A.L. sat down but then got up from the chair, again ran out of the office, went to his locker, and collected his belongings to go home. W.G. called A.L.'s social worker, the special education guidance counselor and the school psychologist for assistance, but could not "get a hold of" them. He also called security and A.L.'s mother.
The security guard subsequently found A.L. by his locker and escorted him back to W.G.'s office. A.L. ignored W.G.'s request to sit down and again attempted to leave the office, but the security guard stopped him. A.L. sat down briefly, then got up and went into a corner by a large plate glass window and a narrow credenza with a large television located on the edge. A.L. struck the blinds covering the plate glass window and kicked the wall. Based on W.G.'s past experience with another emotionally disturbed student, who without provocation had "slammed his head against the wall," he feared that A.L. would do something similar. According to W.G., he tried to "guide" A.L. away from the television and plate glass window into a chair he had pulled out for A.L. A.L. testified that W.G. and the security guard tried to force him to sit by pushing his arms to get him in the chair.
A.L. refused to sit in the chair and started kicking a recycling bin against another desk in the office that had a printer, fax and copy machine on it, making the desk shake. W.G. got behind A.L. and tried to guide him into a chair. W.G. testified that at that point, it was "like a switch went off." A.L. lunged back into W.G., kicked W.G. with his right foot several times on W.G.'s right shin, and began "cursing and threatening, and flailing about[.]" W.G. put his left arm across A.L.'s left shoulder and chest, which W.G. referred to as a "choke hold." A.L. struggled, yelled and screamed, and tried to break free. Based on W.G.'s past experience with yet another emotionally disturbed student, who had dashed out of the school and into the street, he continued restraining A.L., fearing the child might do the same.
During the struggle, W.G. began falling backwards and "was trying desperately not to fall." At that point, W.G. heard A.L. say, "You're choking me." A.L. claimed he could not breathe for about five seconds. W.G. regained his balance; however, he was losing physical control of A.L. and could no longer hold him. As he and ...