On appeal from the Department of Children And Families, Division of Youth and Family Services, Docket No. AHU 08-382.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2012 -
Before Judges Ashrafi and Fasciale.
E.P. appeals from a March 9, 2011 final agency decision of the Director of the Division of Youth and Family Services (DYFS or the Division) finding that E.P. had abused her eight-year-old son, M.U. On appeal, we consider whether the mother's single slap of M.U.'s face leaving a red mark and minor bruising constitutes "excessive corporal punishment" pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). We affirm.
At 8 p.m. on January 14, 2008, a Sunday, E.P. and F.U., M.U.'s father,*fn1 were downstairs watching television, and M.U. and his five-year-old sister had just gone upstairs. For several days, M.U. had been misbehaving. On Friday, he had been sent to the school principal's office for being disrespectful. Additionally, F.U. had promised to take M.U. to a car show that weekend, but did not because of inclement weather and a difficult overnight shift at the hospital where F.U. worked as a nurse. F.U. testified at the hearing that for "the whole weekend . . . [M.U.] wasn't listening and [was] just constantly fighting with his sister."
While watching television, the parents heard their daughter begin crying. When F.U. went upstairs, he discovered that M.U. had kicked his sister in the groin. F.U. yelled at M.U. and returned downstairs. E.P., who was nine-months pregnant with the couple's third child, then went upstairs and found M.U. lying on his bed facing the wall. E.P. turned M.U. toward her and asked him why he had kicked his sister. M.U. "shrugged his shoulders, 'as if he didn't care,'" and then said that he had kicked her because he "felt like it," at which point E.P. slapped M.U.'s left cheek.
In the morning, E.P. applied a cold washcloth to M.U.'s face, and F.U. took M.U. to school. Although bruising was not yet apparent, school officials observed a red mark on M.U.'s face and reported the incident to DYFS. Sasha Scuderi, a DYFS caseworker, interviewed M.U. and photographed his face. The Division later substantiated a finding of child abuse against E.P., who then appealed that finding to the Office of Administrative Law.
On January 10, 2011, an administrative law judge (ALJ) conducted a hearing, viewed the photographs, and heard testimony from both parents, Scuderi, and Elizabeth Phlaum, a parenting coach who counseled E.P. and F.U.*fn2 On January 28, 2011, the ALJ issued an eight-page initial decision, recommending that the finding of child abuse be reversed and marked as unsubstantiated, and that E.P.'s name not appear on the child abuse registry.*fn3
The ALJ found that "the slap in this case was not intended as a form of corporal punishment like the strike with [a] paddle." He concluded that the Division had "simply failed to prove" that E.P. "acted with the knowledge that injury was likely to, or probably would, result," that E.P. "acted with reckless disregard for [M.U.'s] safety," or that "the slap [a]rises to . . . wanton-and-willful negligence." The ALJ then filed his initial decision with the Division for consideration.*fn4
On March 9, 2011, the Division issued a seven-page final agency decision, rejecting the ALJ's recommendation and affirming the substantiation of abuse. The Division found that the ALJ's conclusions were "inconsistent with the evidence in the record." The Division found that E.P., in her testimony, had "admitted [to] slapping" M.U, and that "[t]he evidence [showed] that M.U. sustained a physical injury to his face, beneath his eye[,] which is documented in photographs that were presented as evidence during the hearing and admitted by all parties." The Division described the injury:
The photographs show vividly the impact that E.P.'s slapping left on M.U.'s face in the form of redness, marks and bruising and the dangerous proximity of the blows to the child's eye. Moreover, these photos were taken more than twelve hours after the incident occurred, and after E.P. had M.U. apply a cold washcloth to his face to alleviate the redness and bruising. The pictures and documentary evidence in the record clearly suffice to establish the impairment of M.U.'s physical consition.
The Division found that "the bruise on the left side of M.U.'s face, with red and white colored marking that resembled three fingerprints and an area that appeared black and blue observed by school [personnel], and [Scuderi], is an injury which resulted from E.P.'s ...