On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 09-0891.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 18, 2011
Before Judges Payne and Simonelli.
Appellant T.W. appeals from the final determination of the Deputy Commissioner of respondent Department of Children and Families (DCF) that found sufficient grounds to substantiate allegations of abuse against T.W. involving D.L., a fifteen- year-old resident of Vision Quest, a residential home for troubled youth. We affirm.
We derive the following facts from the record developed at a hearing before an Administrative Law Judge (ALJ).
T.W. and D.L. were involved in an incident on April 15, 2009, that resulted in a head injury to D.L. According to T.W., D.L. was listening to music on a laptop, which D.L. was not permitted to use. T.W. took the laptop from D.L. and gave it to another resident. D.L. gave T.W. "this very intimidat[ing] look" and "probably said something under his breath[.]" T.W. told D.L., "there's no reason you have to look at me like that."
D.L. was sitting at T.W.'s desk when this exchange occurred. It was time for T.W. to hand out to the residents the snacks that were in his desk drawer, which D.L. was blocking. T.W. asked D.L. about eight or nine times to move, but D.L. started looking at him again "with the same [intimidating] look as before." After T.W.'s last request, D.L. "moved the chair a little," which enabled T.W. to get the snacks from the desk drawer and give them to the residents.
When D.L. moved the chair, T.W. noticed that D.L. was sitting on T.W.'s jacket. T.W. asked D.L. about eight to ten times to get off his jacket. T.W. knew at the time that D.L. was "aggravated because [he] asked [D.L.] to give [him] the laptop." D.L. sat there looking at T.W. "with a hard look," did not move, and was "saying little things under his breath." In a written statement that T.W. made approximately one-half hour after the incident, he said that he then "used touch control [by] placing [his] hand on [D.L.'s] shoulder and tapped him on his shoulder" and asked D.L. to "please get off [his] jacket." However, D.L. continued sitting on the jacket. T.W. then "[inadvertently] extended [his] arm on [D.L.'s] shoulder and removed [D.L.] out [of] the chair." T.W. testified that D.L. jumped up and tried to throw a punch but T.W. grabbed his arms. The two struggled, and D.L.'s elbow "glazed" T.W.'s face, causing them to fall to the floor. On the way down, D.L. hit his head on the corner of a table, sustaining a head injury. T.W. then called a "Code Blue."*fn1 T.W. admitted that D.L. showed aggression after he had "forced" D.L. out of the chair. T.W. described D.L.'s head injury as "a scratch." However, D.L. received three staples at the hospital to close the wound to his head.
D.L. signed a grievance form the day after the incident, which the ALJ admitted into evidence subject to corroboration because D.L. did not testify at the hearing.*fn2 D.L. reported that T.W. "grabbed him by the shirt and slammed him to the ground." He got up and T.W. "grabbed him in a bear hug like maneuver and slammed him to the ground again." T.W. called a "Code Blue" after D.L. hit his head.
An investigator from the Institutional Abuse Investigational Unit (IAIU) investigated the matter and issued an investigation report, which contained narratives of her interviews with T.W., D.L., and several residents and a Vision Quest employee, all of whom had witnessed the incident. The ALJ admitted the report into evidence as a business record, finding it was made in the regular course of DCF's business. T.W. does not challenge this ruling on appeal.
The witnesses' reports of the incident were essentially consistent with T.W.'s version, except they said that T.W. picked D.L. up from the chair by his shirt, D.L. jumped up and balled his fists, and T.W. then grabbed D.L. by his waist, lifted him up, and "slammed" him to the floor. The Vision Quest employee said that he heard T.W. tell D.L., "if you don't get up [off the chair], I'm going to make you get up." When D.L. did not comply, T.W. "grabbed [D.L.] and pulled him up." All witnesses confirmed that T.W. called a "Code Blue" after D.L. was injured.
Kevin Noble, a Vision Quest employee and "safe crisis management" trainer, testified that T.W. received safe crisis management training. Pursuant to the Vision Quest Operating Procedure, the first level of intervention is observation and verbal intervention or redirection of behavior. If the situation escalates to something that may harm the youth or staff, staff should call a "Code Blue," which alerts other staff members to respond to ...