August 29, 2013
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY,  Petitioner-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 14, 2013
On appeal from Department of Children and Families, Division of Child Protection and Permanency, Docket No. AHU 09-1603.
Helmer, Paul, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Duclos, Deputy Attorney General, on the brief).
Before Judges Koblitz and Accurso.
J.C. appeals from a July 20, 2012 final agency decision of the Director of the Division of Child Protection and Permanency (the Division) finding that, pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), J.C. abused his thirteen-year-old daughter, A.C., by using excessive corporal punishment in an incident resulting in bruising to A.C.'s face, eyes, legs, foot and elbows. We affirm.
A.C. was a troubled child with medical, psychological and behavioral issues, including engaging in sexual activity from an early age. She moved in with her father, his wife and A.C.'s four step-siblings in the fall of 2007. Although J.C. assisted in obtaining treatment for A.C., her poor behavior continued.
On August 28, 2009, J.C. left A.C., then thirteen years old, at home to babysit two of her step-siblings, a seven-year-old and a two-year-old. A.C. invited over her male friend, Dennis,  a football player who was a senior in high school. She told Dennis to enter the home through a rear window. The neighbors, seeing a man in a hooded sweatshirt entering the house in that fashion, called the police. Dennis told the police that he was A.C.'s boyfriend and had visited her at her house in the past to engage in sexual activity.
J.C. testified that when the police relayed this information to him, he "lost it" and entered the home screaming at A.C. that he was "done with [her]" and she was "out of here" and should seek help elsewhere. He then chased her around the kitchen to take her to the police station. A.C. tried to evade capture and the two became physically interactive. As the Director stated in her final decision, J.C. "surmised that A.C. sustained most of the injuries she incurred from contact with the kitchen floor, walls or furniture. [J.C.] related that he 'forcibly picked' A.C. up and brought her to the door three times but each time, she ran back to the kitchen." J.C. admitted stepping on A.C.'s hand or foot. J.C. admitted that at one point, "[o]ut of reaction" he swung at A.C. with his left hand and hit her in her left eye. A photograph taken five days later shows A.C. with a black eye.
A.C. reported to a Division caseworker that J.C. "did not just smack her on the face, but held her by her hair and threw her against the refrigerator. Then picked her up and threw her against the window and . . . then picked [up] a board and hit her on her knee . . . ."
Although she was subpoenaed to testify, A.C. did not appear at the hearing before the Administrative Law Judge (ALJ), instead submitting a letter from her treating doctor indicating that she was "unable to attend for medical reasons[.]"
After hearing testimony from J.C. and the Division caseworker, and reviewing records and photographs, the ALJ issued an initial decision, recommending that the finding of child abuse be reversed and marked as unsubstantiated, and that J.C.'s name not appear on the child abuse registry. The ALJ found that A.C.'s actions triggered the altercation. The ALJ stated, "A.C. was the instigator of the conflict and [J.C.] did not handle it very well. [J.C.] allowed himself to lose control, notwithstanding the egregious nature of his daughter's conduct." The ALJ determined that
[J.C.] did not 'unreasonably inflict harm' upon A.C. This case has the characteristics identified in [Department of Children and Families, Division of Youth and Family Services. v. K.A., 413 N.J.Super. 504, 511 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011)]. The situation was very volatile, fueled by a troubled child and a bewildered father. The contact between A.C. and [J.C.] was incidental to the explosive situation. There is no competent evidence that [J.C.] is an abusive parent or a threat to children which would necessitate the placement of his name on an abuse registry. He has four other children in his care and there is no evidence of any problems outside of those related to A.C.
The Director examined the records thoroughly, including the extensive Division records of A.C. beginning when the child was two years old, and listened to the audiotape of the hearing. The Director issued a detailed, eleven-page, single-spaced final agency decision, rejecting the ALJ's recommendation and affirming the Division's substantiation of abuse. The Director found that the ALJ "failed to perform an analysis of the relevant law as it applied to the facts in this case." She found that the evidence supported a finding that J.C. inflicted at least the injuries to A.C.'s eye and foot as documented in photographs. She noted how much larger and more powerful J.C. was than A.C. and the fact that A.C. was barefoot while J.C. wore steel-toed work-boots.
On appeal J.C. raises the following issue:
POINT I: THE RECORD DOES NOT SUPPORT THE DIRECTOR'S LEGAL CONCLUSION THAT J.C.'S ACTIONS CONSTITUTED EXCESSIVE CORPORAL PUNISHMENT.
Pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -24, "an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, 158 N.J. 644, 655 (1999) (quoting N.J.S.A. 52:14B-10(c)). The agency is the "primary factfinder, " and has the "ultimate authority, upon a review of the record submitted by the ALJ[, ] to adopt, reject or modify the recommended report and decision of the ALJ[.]" N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J.Super. 491, 507 (App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 586-87 (1988) (explaining the relationship between an ALJ's initial decision and the agency's final decision).
"Once the agency has issued its final decision, '[our] initial review of that decision is a limited one.'" In re Taylor, supra, 158 N.J. at 656 (quoting Clowes, supra, 109 N.J. at 587). We "defer to an agency's expertise and superior knowledge of a particular field[, ]" Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), and uphold the decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[, ]" In re Herrmann, 192 N.J. 19, 27-28 (2007). However, we owe no deference "'[i]f an agency's statutory interpretation is contrary to the statutory language, or . . . undermines the Legislature's intent . . . .'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 302 (2011) (quoting Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008)).
The Division is the State agency responsible "for the care, custody, guardianship, maintenance, and protection of children[.]" N.J.S.A. 30:4C-2(a). In an abuse and neglect case, the Division must show by "a preponderance of the evidence" that the child has been abused or neglected, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).
Here, the Division substantiated a finding of child abuse against J.C. pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), which, in relevant part, defines an "[a]bused or neglected child" as "a child whose physical, mental, or emotional condition has been impaired . . . as the result of the failure of his parent . . . to exercise a minimum degree of care . . . by unreasonably inflicting . . . harm, . . . including the infliction of excessive corporal punishment . . . ."
Our Supreme Court has articulated the appropriate standard for determining whether an alleged abusive or neglectful action rises to the level of a "failure . . . to exercise a minimum degree of care" required by N.J.S.A. 9:6-8.21(c)(4)(b). In G.S. v. Department of Human Services, Division of Youth and Family Services, 157 N.J. 161, 178 (1999), the Court held that "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." The Court explained:
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. Knowledge will be imputed to the actor.
. . . [T]he difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use. The label turns on an evaluation of the seriousness of the actor's misconduct. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from slight inadvertence to malicious purpose to inflict injury.
[Id. at 178 (citations and internal quotation marks omitted).]
Recently, the Court further explicated its holding in G.S. In T.B., supra, the Court stated that "[o]bviously there was some imprecision in our expression of the standard in G.S. (e.g., 'wanton and willful negligence')[;] however, the leitmotif that shines through the opinion is that, 'failure . . . to exercise a minimum degree of care' at least requires grossly negligent or reckless conduct." 207 N.J. at 306. The Court recognized that "the question of whether a particular event is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." Id. at 309. The Court explained that "[t]here exists a continuum between actions that are grossly negligent and those that are merely negligent." Ibid. As such, a "parent's conduct must be evaluated in context based on the risks posed by the situation." Ibid. (citing G.S., supra, 157 N.J. at 181-82). "The cases are fact-sensitive." Ibid.
The statutory definition of an "[a]bused or neglected child, " N.J.S.A. 9:6-8.21(c)(4)(b), also provides that "the failure . . . to exercise a minimum degree of care . . . includ[es] the infliction of excessive corporal punishment[, ]" the meaning of which we recently considered as an issue of first impression. See K.A., supra, 413 N.J.Super. at 511. In K.A., in an isolated episode that lasted only seconds, K.A. struck her eight-year-old developmentally disabled daughter on the shoulder with a closed fist leaving bruising, which, although visible, did not require medical attention. Id. at 506, 512. Because the incident did not constitute per se excessive corporal punishment, we examined "the circumstances facing K.A. to determine whether striking [her child] five times on the shoulder with a closed fist amounted to excessive corporal punishment." Id. at 512. We considered: "(1) the reasons underlying K.A.'s actions; (2) the isolation of the incident; and (3) the trying circumstances which K.A. was undergoing due to A.A.'s psychological disorder." Those factors "form[ed] the prism through which we determine[d] whether K.A.'s actions were indeed 'excessive.'" Ibid.
We held that "[t]he term 'excessive' means going beyond what is proper or reasonable." Id. at 511 (citing Webster's II New College Dictionary 390 (Margery S. Berube ed. 1995)). We stated:
[A] single incident of violence against a child may be sufficient to constitute excessive corporal punishment. A situation where the child suffers a fracture of a limb, or a serious laceration, or any other event where medical intervention proves to be necessary, may be sufficient to sustain a finding of excessive corporal punishment, provided that the parent or caregiver could have foreseen, under all of the attendant circumstances, that such harm could result from the punishment inflicted.
In our analysis, we observed that "K.A. was confronted with a psychologically disruptive child, unable or unwilling to follow verbal instructions or adhere to passive means of discipline such as a time-out[, ]" and that "K.A. was alone, without support from either her spouse/co-parent or from other members of her extended family . . . ." Id. at 512. Further, we noted that the incident "appear[ed] to be aberrational to this family." Id. at 513. As such, we reversed the Division's finding of abuse. Ibid.
Here, the Division considered the applicable standards of N.J.S.A. 9:6-8.21(c)(4)(b) and G.S. in its final agency decision. The Director also distinguished K.A.:
Initially, I note that [J.C.] acknowledged that his intent in striking A.C. was not to punish her, but rather he acted out of frustration and anger to A.C. swinging her arms at him and using an obscenity. Further, unlike K.A., [J.C.] struck A.C. in the face. The location of the blow that [J.C.] landed upon A.C. was particularly vulnerable; striking A.C. in the face intensified the potential for harm, as this is a risky area due to the presence of many sensitive organs located nearby.
The Director stated:
Further, K.A. resorted to corporal punishment only after attempting a more passive form of discipline of putting her child in time-out. When that was unsuccessful, K.A. resorted to corporal punishment. [J.C.] on the other hand, rushed home from work in a rage when he learned that A.C. had lied about the purported intruder in the house. He entered the house angry and screaming . . . . Although [J.C.] may have been frustrated by A.C.'s behavior, as was K.A. with her child's behavior, [J.C.]'s act of striking A.C. in the face was not a "proper and reasonable" reaction to the child's behavior as was found to be the case in K.A.
We begin our analysis by recognizing the obvious similarities between K.A. and the present case. As in K.A., the incident here was clearly an aberration to this family, and there is no credible evidence to suggest any pattern or other incidents of J.C.'s use of corporal punishment as a regular form of discipline. However, we agree with the Division's analysis of the important differences between K.A. and this case.
We also distinguish New Jersey Division of Youth and Family Services. v. P.W.R., 205 N.J. 17, 36 (2011), where the Court determined that "[a] slap of the face of a teenager as a form of discipline—with no resulting bruising or marks—does not constitute 'excessive corporal punishment' within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b)." Here, the Director noted that photographs, taken five days after the incident, clearly showed that A.C. had many injuries, including a black left eye where J.C. hit her in anger. J.C. has not made a clear showing that this decision, given the expertise of the Director, is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.