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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...