August 2, 2012
DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT, PETITIONER-RESPONDENT,
On appeal from the Department of Children and Families, Institutional Abuse Investigation Unit, Docket Nos. AHU 03-184, AHU 03-188, and AHU 03-190.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2012
Before Judges Payne, Reisner and Simonelli.
Appellant W.B. appeals from the January 5, 2011 amended final decision of the Acting Deputy Commissioner of respondent Department of Children and Families (DCF) that affirmed the finding of substantiated abuse and neglect of S.P., a seventeen-year-old resident of Arthur Brisbane Child Treatment Center (Brisbane) Vision Quest, a State-operated facility for teenagers with emotional and behavioral problems. We affirm.
We derive the following facts from the record of the hearing before an Administrative Law Judge (ALJ).
Prior to June 2, 2003, S.P. had been admitted to Brisbane several times for her "[p]oor impulse control" and tendency to engage in "loud destructive behavior" and self-injury. Residents classified as a "high risk," like S.P., were assigned a one-to-one youth worker, meaning that the assigned youth worker was "never more than arm's length away from the patient" unless that worker signed the resident over to another staff member.
The charges against appellant stem from an incident that occurred on the morning of June 2, 2003. Appellant was the senior youth worker assigned to S.P. at the time. The incident was captured on videotape, which we have reviewed, and reveals the following. Appellant was with S.P. in the cottage where S.P. lived. Also there were E.R., another youth worker not assigned to S.P., D.V.W., the supervising nurse, and other teenage residents.
S.P., who was wearing a helmet because she engaged in head-banging, was quietly sitting on a couch watching television, with papers and markers on the floor by her feet. S.P. suddenly took the helmet off, threw it towards the television, and picked up what appeared to be a notebook or sketch pad from the floor. At that point, E.R. walked over to S.P., picked up the papers and markers from the floor, and threw them in a garbage can. This agitated S.P. because she believed that her markers were being thrown away. E.R. then grabbed S.P.'s right leg, yanked her off the couch and onto the floor, and told S.P. that she was "bad." S.P. yelled at E.R. and punched a desk. E.R. then grabbed S.P. by the arm, pulled her away from the desk, and forced her onto the floor, saying "cut it out." E.R. told S.P. to put her helmet on, but S.P. refused.
E.R. sat down on a nearby couch, and S.P. briefly sat calmly on the floor. S.P. then yelled obscenities and knocked over a small filing cabinet, causing its contents to fall on the floor. She then tried to pull a desk over onto its side, at which point E.R. got up, stepped in front of S.P. and said, "That's why they call you bad." S.P. responded, "I don't care."
While E.R. and S.P. continued speaking to one another, S.P. appeared
to remain relatively calm until E.R. said
something that prompted S.P. to again yell obscenities.*fn1
S.P. then took off her shirt, to which E.R. commented, "If
you want to embarrass yourself, have no pride in yourself, you go
right ahead." Appellant then said to S.P., "You have no right to act
up. There's no reason, no reason for it."
After S.P. put her shirt back on, E.R. began making gestures behind S.P.'s back, such as swaying back and forth, extending her arms, and shaking her fingers. E.R. pointed her finger at S.P. and said, "That's it. You're never going to do that again." S.P. rose from the floor and knocked over a water cooler, causing water to spill on the floor but not injuring herself or others. In response to this, appellant put S.P. in a full primary restraint technique (PRT)*fn2 on the floor and lay on top of her.
While S.P. was in the PRT on the floor, E.R. walked over to her and bent down. At this point, S.P. became increasingly agitated, and screamed and struggled to extricate herself from appellant's hold. E.R. spanked S.P. on the buttocks several times, causing S.P. to continue screaming and struggling. E.R. then bent down again and said or did something to S.P., which caused S.P. to continue screaming.*fn3
Approximately one minute elapsed before appellant released S.P. from the PRT. While S.P. remained sitting on the floor, E.R. kicked her leg toward S.P., and the two exchanged words. E.R. told S.P. that she was "a fresh young lady," to which S.P. responded with a negative comment about E.R.'s daughter. In response to S.P.'s comment, appellant swung at S.P.'s legs, knocking her onto her back, and demanded that S.P. recant the comment. E.R. then stood over S.P. with her foot on S.P.'s hair. S.P. screamed, "get off my hair." E.R. finally removed her foot from S.P.'s hair after S.P. repeatedly apologized.
The telephone rang while S.P. was still on the floor with E.R. standing over her. Appellant walked across the room to answer it. On her way there, she swung her right leg and kicked S.P.'s left leg with some force. S.P. screamed and kicked the television console until E.R. grabbed her by the arms and pulled her away.
Approximately one minute later, S.P. got up from the floor and calmly walked to the couch, grabbing a pillow on the way. Appellant removed the pillow from S.P. A few moments later, S.P. became agitated by the housekeeper, who demanded that S.P. clean up after herself. E.R. then said to S.P., "You're crazy; you're a crazy girl."
M.B., a senior youth worker, entered the room and left with S.P., who quietly and calmly walked out with him and out of the videotape's range. A moment later, S.P. cried and screamed because she had hit her head on a light switch, causing a two-inch laceration to her scalp. She was transported to the hospital, where she received six staples to close the wound.
As a result of the incident, on September 19, 2003, the Department of Human Services (DHS) issued a Preliminary Notice of Disciplinary Action (PNDA) charging appellant with:
Neglect of duty, loafing, idleness or willful failure to devote attention to task which could result in danger to person or property.
Inappropriate physical contact or mistreatment of a patient, client, resident or employee.
Violation of a rule, regulation, policy, procedure, order or administrative decision.*fn4
Appellant did not request a hearing. DHS issued a Final Notice of Disciplinary Action on October 7, 2003, sustaining the charges and suspending appellant for forty-five days beginning October 9, 2003. Appellant did not appeal.
The Institutional Abuse Investigation Unit (IAIU) investigated the matter. On November 21, 2003, the IAIU notified appellant that it had substantiated allegations that she had physically/emotionally abused S.P. pursuant to N.J.S.A. 9:6-8.21c. The IAIU found that S.P. was under appellant's direct one-to-one supervision during the entire incident; S.P. had not presented as a danger to herself or others; appellant joined with E.R. and began taunting and badgering S.P. causing S.P.'s state of agitation to escalate; appellant intentionally kicked S.P. on the leg with some force while E.R. stood on S.P.'s hair; and appellant failed to: (1) intervene during the entire time E.R. was taunting S.P.; (2) make any attempt to defuse the situation that E.R. had escalated; (3) intervene when E.R. spanked S.P. on the buttocks; (4) intervene and/or warn E.R. regarding her inappropriate and unprofessional method of discipline; and (5) intervene when E.R. was deliberately standing on S.P.'s hair.
The IAIU concluded that appellant's actions were unjustified and inappropriate, and she had placed S.P. at unnecessary and undue risk of serious harm by other than accidental means. Appellant was subsequently terminated. She appealed the IAIU's finding of abuse, and the matter was transferred to the Office of Administrative Law for a hearing as a contested case.*fn5
Following a twelve-day hearing, on October 7, 2010, ALJ Israel Dubin issued a written initial decision. After a painstaking analysis of the videotape, witness testimony, documentary evidence, and applicable legal authority, ALJ Dubin found that "E.R.'s conduct was the most difficult to fathom because it was virtually unrelenting and included some acts that defied explanation[;]" the videotape contradicted E.R.'s version of events; and E.R. "placed S.P. at unnecessary and undue risk of serious harm and warranted the Division's determination that the alleged abuse and neglect had been substantiated."
Regarding appellant, ALJ Dubin found that "the Division's substantiation [of abuse] was based not only on what she did, but also on what she did not do[,]" and appellant "seemingly abdicated any responsibility she may have had for [S.P.]" He also found that appellant failed to intervene during the approximately thirty-minute period of time E.R. engaged in her unrelenting maltreatment of S.P; when E.R. taunted and antagonized S.P. through gestures and comments, spanked S.P., stood on S.P.'s hair, and dragged her across the floor by her wrists; and when M.B. took S.P. from the room without having any reason to do so. ALJ Dubin also found that E.R.'s and M.B.'s actions "clearly placed S.P. at unnecessary and undue risk of serious harm, yet [appellant] stood idly by" and that appellant's "implementation of a full PRT was unnecessary and placed S.P. at undue risk of serious harm." He concluded that appellant unnecessarily and unjustifiably placed S.P. at significant risk of harm by other than accidental means, and the allegations of appellant's abuse and neglect of S.P. pursuant to N.J.S.A. 9:6-8.21c(4)(b) were substantiated.
Following a review of the record, in a January 5, 2011 amended final decision, the Acting Deputy Commissioner adopted that part of ALJ Dubin's initial decision relating to appellant, affirmed the findings of child abuse and neglect against her pursuant to N.J.S.A. 9:6-8.21c, and placed appellant's name on the Central Registry of the Division of Youth and Family Services pursuant to N.J.S.A. 9:6-8.11. This appeal followed.
On appeal, appellant contends that the Acting Deputy Commissioner erred in adopting ALJ Dubin's decision because the decision lacked fair support in the record and was unreasonable. She argues that ALJ Dubin "did not articulate with particularity the facts" upon which he reached his decision, failed to consider certain credible testimony, and ignored the reality of day-to-day behavior in a therapeutic setting. Appellant also contends that she was denied due process with respect to ALJ Dubin's finding that she used an unnecessary PRT on S.P. because she was not specifically charged with that offense and prepared no defense to it.
"[W]e are bound to uphold an agency's decision 'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Our function is not to merely rubberstamp an agency's decision, rather, our function is "to engage in a 'careful and principled consideration of the agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "'considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). It is not for the court or the agency to disturb an ALJ's credibility determination if the record as a whole supports it. N.J.S.A. 52:14B-10(c); In re Snellbaker, 414 N.J. Super. 26, 36 (App. Div. 2010).
We have considered appellant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We also conclude that there is more than sufficient credible evidence in the record supporting the Acting Deputy Commissioner's and ALJ Dubin's decisions, and the decisions are not arbitrary, capricious or unreasonable. We affirm substantially for the reasons expressed by ALJ Dubin in his comprehensive, well-reasoned October 7, 2010 initial decision, which the Acting Commissioner adopted. However, we make the following brief comments.
An "abused or neglected child" means, in part, a child under the age of eighteen whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . [N.J.S.A. 9:6-8.21c(4)(b).]
Interpreting N.J.S.A. 9:6-8.21c(4)(b), our Supreme Court held that mere negligence does not trigger the statute. Dep't of T.B., supra, 207 N.J. at 306-07; G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). Rather, the failure to exercise a minimum degree of care refers "to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 177-78). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306.
Our review of the record, specifically the videotape, leaves no doubt in our minds that appellant's conduct was grossly or wantonly negligent. We also conclude that appellant was not unduly prejudiced by the inclusion of the PRT in the case. Although not specifically charged with implementing an unnecessary PRT, appellant had ample advance notice that the PRT was part of the overall allegation that she had abused S.P. In addition, she had the opportunity to address it at the hearing. In any event, there was other ample evidence supporting the conclusion that appellant abused S.P. within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).