Dep't Of Children And Families v. C.H

• Citation: 414 N.J.Super. 472,999 A.2d 501
• Parties: DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, Petitioner-Respondent,v.C.H., Respondent-Appellant.
• Decision Date: 28 July 2010
• Court: New Jersey Superior Court

414 N.J.Super. 472

999 A.2d 501

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, Petitioner-Respondent,v.C.H., Respondent-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted May 26, 2010.

Decided July 28, 2010.

Marianne Rebel Brown, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Clinton Page, Deputy Attorney General, on the brief).

Before Judges AXELRAD, SAPP-PETERSON and ESPINOSA.

The opinion of the court was delivered by

SAPP-PETERSON, J.A.D.

Appellant C.H. appeals from a final administrative agency decision by the Director of the New Jersey Division of Youth and Family Services (Division) finding that on November 20, 2003, appellant had committed an act of child abuse as defined by N.J.S.A. 9:6-8.21(c)(4)(b) by failing to exercise a minimum degree of care by unreasonably inflicting excessive corporal punishment upon her daughter, T.H. We affirm.

The incident that triggered the Division's finding against C.H. resulted from a referral it received on November 21, 2003, from T.H.'s school nurse, who reported that T.H.'s teacher brought T.H. to her office where she observed red demarcations on the right side of T.H.'s face, three to four inches long, and also observed dark red scratches, two inches in length, on T.H.'s right elbow and left cheek, as well as a greenish demarcation on the middle of her back. The Division dispatched two workers to the school where they interviewed T.H., who stated that her mother had beaten her with a paddle the previous evening after learning that she had told a neighbor that they were without electricity in the home. The school nurse did not believe that T.H. required medical attention. The workers took pictures of the bruises they observed and returned to their office where they discussed the matter with their supervisor. It was agreed at that time that there was no need to involve the police or the prosecutor.

Later that day, the workers appeared at C.H.'s home and advised her of why they were there. C.H. explained that the electricity had gone out on November 19, due to a storm and was restored on November 20. She confirmed that T.H. had gone across the street to a neighbor's house and told the neighbor that there was no electricity in their home. She admitted to spanking T.H. but only on her buttocks while T.H. was still clothed. She told the workers that T.H. had no marks on her when she left for school earlier that day and offered a number of possibilities for the marks, including the sensitive nature of T.H.'s skin that may have developed into a rash from lotion, playing with the cat around her neck, as T.H. was known to do, or doing somersaults. C.H. also suggested the injuries may have been sustained at school.

Two weeks later, at the request of the Division, Dr. Patty Vitale conducted a physical examination of T.H., who was accompanied to the examination by C.H. Dr. Vitale authored a report that was admitted into evidence at the hearing without objection. In the report, Dr. Vitale noted that she found T.H. to be a “well-developed” and “well-nourished female.” She was unable to confirm the injuries to the face and elbow because the injuries had since “desorbed without any residual.” Although she observed some old scarring on the body, there was no indication of the source of those scars.

Dr. Vitale's report also discussed her conversation with C.H. during which C.H. told her that T.H.'s story was not true and that T.H., like all children, sometimes did not tell the truth. C.H. also explained to Dr. Vitale that she used other forms of discipline upon T.H., but spanked her when “more significant discipline [was] required.” She also shared with Dr. Vitale her experience with undisciplined children in her professional capacity and that she intended to use discipline in an effort to prevent her daughter from “end [ing] up on the streets or doing drugs[.]”

Dr. Vitale, in addition to performing a physical examination of T.H., also interviewed her. T.H. told Dr. Vitale that “mom started beating me” using a paddle “[o]n my eye like two times and on my back, that's it[,]” and that her mom hit her with the paddle on her “[f]ace, eyes, [and] cheek.” T.H. told Dr. Vitale that this was the only time that C.H. had ever hit her in this way. However, when Dr. Vitale asked her if her mother had ever hit her in the face, she said “No” and reported that her cheek had been red because she scraped herself at home. Further, when asked whether her mom hit her on the face or whether she fell, she said, “I fell.”

Dr. Vitale concluded that C.H.'s discipline was inappropriate and that she had used excessive force when disciplining T.H. Dr. Vitale also expressed her concern that C.H. believed that the discipline she administered to T.H. was appropriate. She believed that C.H. would benefit from parenting education and recommended that the Division “assess whether mom could benefit from additional support services.”

In a letter dated February 23, 2004, the Division notified C.H. that it had affirmed the finding made by its district office that child abuse was substantiated as to T.H. C.H. appealed this decision and the matter was assigned to an administrative law judge (ALJ) as a contested case and a hearing was conducted. See N.J.S.A. 52:14F-1 to -23.

Following the presentation of the evidence, the ALJ found the evidence was insufficient to sustain the allegation that C.H. committed an act of physical child abuse under N.J.S.A. 9:6-8.21(c) and that the Division “did not have ‘good cause’ to make a finding of substantiated child abuse.” Specifically, the ALJ concluded:

There is no evidence in the record to establish that the injuries suffered by T.H. were either life-threatening or so serious as to cause any disfigurement or loss or impairment of the function of any bodily organ. There is no indication that either the school nurse or the DYFS investigator believed these injuries were sufficiently serious so as to require medical attention. I FIND that these are not serious injuries that are likely to cause death or serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ. I also FIND that there is no evidence in the record that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired. Obviously, if there had been a series of these incidents involving respondent, my findings could differ greatly, since multiple incidents might create or allow to be created a substantial or ongoing risk of physical injury to such child.

I am convinced that C.H. is a good parent who believed she was acting in her daughter's best interest. I FIND that what occurred was an isolated incident and did not involve the infliction of excessive corporal punishment resulting in serious injuries or impairment.

The ALJ recommended the reversal of the Division's findings and that C.H.'s name should not be placed on the Central Registry of substantiated child abusers.

The Director issued a final agency decision rejecting the recommendation of the ALJ. The Director found striking T.H. “repeatedly with a paddle, multiple times and with sufficient force to cause marks could certainly qualify as abuse per N.J.S.A. 9:6-8.21(c)(4)(b)[.]” Additionally, the Director expressed the view that when consideration is given to the reason why C.H. admittedly struck her daughter, because she told the neighbor there was no electricity in their home, C.H.'s actions went “beyond any semblance of reason, and provide[d]] ] no justification for C.H.'s decision to administer any measure of corporal punishment” to a five-year old child.

The Director also considered that there had been “a history of questionable administration of corporal punishment.” She noted that C.H. testified that she had physically paddled T.H. two months earlier and told Division investigators that she physically disciplined T.H. one to two times per month. Further, during a prior Division investigation conducted in 2001, when T.H. was only three years old, C.H. admitted that she routinely disciplined T.H. by pinching the child's inner thighs. The Director concluded that the “pattern of corporal punishment on such a young child is troubling and, when considered in concert with [the] instant matter, there is ample support to uphold this substantiation.” The ensuing appeal followed.

On appeal C.H. contends:

POINT I

THE FINDING BY [THE] ADMINISTRATIVE LAW JUDGE ... THAT C.H. DID NOT ABUSE OR NEGLECT HER DAUGHTER WAS NOT REJECTED BY [THE] DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, ON A TIMELY BASIS. [THE ADMINISTRATIVE LAW JUDGE]'S FINDING SHOULD BE ADOPTED.

POINT II

THE DEPARTMENT OF FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES DID NOT MEET THE STANDARD REQUIRED TO MODIFY OR REJECT THE FINDING OF THE ADMINISTRATIVE LAW JUDGE.

POINT III

THE RECORD DOES NOT SUBSTANTIATE A FINDING OF CHILD ABUSE. THE FINAL DECISION OF THE DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION[ ] OF YOUTH AND FAMILY SERVICES MUST BE REVERSED.

We first dispense, as meritless, appellant's contention that the Director failed to reject the ALJ's recommended decision in a timely fashion. The Division obtained two orders extending the time in which to issue its final agency decision. See N.J.A.C. 1:1-18.8 (permitting extensions of time limits in which to file a final decision). The final decision was issued prior to the expiration of the second extension.

Turning to the remaining arguments, we begin by noting that in challenging an agency's determination, an appellant carries a substantial burden of persuasion, and the agency's determination carries a presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91, 461 A.2d 575 (1983). Consequently, the scope of our review of the issue before us...