In re RP

• Decision Date: 18 July 2000
• Citation: 333 N.J. Super. 105,754 A.2d 615
• Court: New Jersey Superior Court
• Parties: In re an Allegation of Physical Abuse Concerning R.P., a minor.

754 A.2d 615

333 N.J. Super. 105

In re an Allegation of Physical Abuse Concerning R.P., a minor.

Superior Court of New Jersey, Appellate Division.

Argued May 23, 2000.

Decided July 18, 2000.

Louis P. Bucceri, Clifton, for appellant (Bucceri & Pincus, attorneys; Mr. Bucceri, of counsel and on the brief).

Andrea M. Silkowitz, Assistant Attorney General, for respondent (John J. Farmer, Jr., Attorney General, attorney; Ms. Silkowitz, of counsel and on the brief).

Before Judges SKILLMAN, NEWMAN and FALL. The opinion of the court was delivered by SKILLMAN, P.J.A.D

The issue presented by this appeal is whether a teacher has a due process right to challenge the form of an investigatory finding by the Division of Youth and Family Services (DYFS) that the teacher has had improper physical contact with a student. We conclude that even though a teacher has no right to an adjudicatory hearing to challenge such a finding unless DYFS concludes that the teacher's conduct constitutes "substantiated" child abuse, the teacher may challenge the wording of the finding on the ground that it is misleading and unfairly damaging to his reputation. We also conclude that DYFS inaccurately and unfairly conveyed the impression that its finding was based on an adjudicatory hearing by stating in a letter to the teacher's employer that the finding was based on "the preponderance of the credible evidence." Accordingly, we require DYFS to send a corrected finding to the teacher's employer which clearly states that the finding was investigatory only.

On November 18, 1998, DYFS received a referral from the principal of an elementary school in Kearney who reported that the father of a first grader alleged that a teacher in the school, M.I.,¹ had grabbed his daughter, R.P., by the back of the neck. DYFS assigned an investigator to the matter, who interviewed R.P., her mother, father and sister, and various students, teachers and school administrators. R.P. stated that she had been engaged in "horseplay" with another student on the playground. M.I. started yelling at her, while holding onto her neck, which caused her to cry. R.P. said that M.I.'s "grasp was hard and it hurt." R.P.'s allegations were corroborated by her older sister, who stated that she saw M.I. holding R.P.'s neck, and that she yelled at M.I. to get his hands off of her sister. In addition, R.P.'s father told the investigator that when R.P. came home from school, he noticed what appeared to be an adult handprint on the back of her neck. R.P.'s mother told the investigator that she did not see any redness on R.P.'s neck when she returned home from work, but that her daughter was upset.

M.I. told the investigator that one of his responsibilities was to be a "patrol adviser." A "patrol" student reported that he had seen R.P. run off the school property just before the beginning of school, and that he had also seen her kick another student. M.I. tried to question R.P. about her behavior, but she was crying so hard he could not question her. Consequently, he escorted R.P. back to her classroom and described what had happened to R.P.'s teacher. According to the DYFS investigator, M.I. "emphatically denied that he had any physical contact with the child."

R.P.'s teacher and a teacher's aide assigned to the classroom told the DYFS investigator that R.P. did not complain of any pain or discomfort after M.I. brought her back to the classroom, and that they did not notice any mark on her neck. Several of the students interviewed by the DYFS investigator stated that they had seen M.I. yelling at R.P., but none of them saw him grab her by the back of the neck.

Based solely on the information obtained in the investigator's interviews, DYFS sent a letter to the Kearney Superintendent of Schools, which stated:

On November 18, 1998, the Division's Northern Regional Investigation Unit received an allegation of physical abuse at the above named facility.

An investigation was conducted. Physical abuse was not substantiated, in accordance with the child abuse/neglect statutes of the State of New Jersey. However, there were concerns relative to the actions of School Teacher [M.I.]. The child sustained superficial injuries, red linear marks to her neck, as a result of this incident. Medical attention was not required. Physical intervention was determined to be unjustified and inappropriate, placing the child at some unnecessary and undue risk of harm. Specifically, the preponderance of the credible evidence indicated that [M.I.] grabbed [R.P.] by the back of her neck. [R.P.] was neither a danger to herself or others. Physical contact was not necessary as well as being contrary to district policy. Excessive force was not utilized.

Appropriate remedial/corrective action was taken at the onset of this investigation. [M.I.] was administratively counseled relative to the district's "hands off" policy. He was directed to have no contact with the child pending the outcome of this investigation. Finally, he was being closely supervised by the building principal.

Please confirm, in writing, within thirty days, action taken.

Similar letters were sent to M.I. and R.P.'s parents.

The Superintendent of Schools subsequently sent a letter to M.I., which stated:

As you are aware, the Division of Youth and Family Services conducted an investigation relative to the above matter. They concluded that the allegation of physical abuse was not substantiated. However, they expressed concerns regarding your actions.

The District has a responsibility to take the appropriate precautions to protect the student body when safety concerns arise.

This letter is to document that the appropriate precautionary actions have been taken. That is, you have been administratively counseled relative to the District's "hands off" policy and the building principal will continue to supervise you and all staff in an effort to avoid any future incidents.

The District feels that based on the above, no further disciplinary or remedial action is required. This letter will become a part of your personnel file.... You should be aware that the District adheres to a progressive discipline system and that future incidents may result in more severe actions.

I

In In re Allegation of Physical Abuse Concerning L.R., 321 N.J.Super. 444, 449-50, 729 A.2d 463 (App.Div.1999), we held that DYFS has statutory authority to find that child abuse allegations against a teacher were "not substantiated," but that it has "concerns" the teacher's conduct may pose a risk of harm to his or her students.² We also concluded that although DYFS has the authority to report its concerns and recommendations to the school district that employs a teacher, it does not have the statutory authority to order a district to take corrective action or submit a remedial plan. Id. at 452-56, 729 A.2d 463. Finally, we concluded that DYFS may transmit an investigatory finding that child abuse allegations against a teacher were "not substantiated," but that "available information ... provides some indication that [a] child was harmed or placed at risk of harm," N.J.A.C. 10:129A-3.3(a)(2), to the school district that employs the teacher and to the child's parents, without affording the teacher an opportunity for an evidentiary hearing. Id. at 456-61, 729 A.2d 463. In reaching this conclusion, we noted that DYFS' findings were "purely investigatory." Id. at 458, 729 A.2d 463 (quoting Blackacre Academy, supra, 304 N.J.Super. at 182, 698 A.2d 1275).

M.I. does not challenge any of the holdings of our opinion in L.R. However, M.I. argues that DYFS' finding that "the preponderance of the credible evidence indicated that [M.I.] grabbed R.P. by the back of her neck" (emphasis added) constituted an "adjudication," and not simply an "investigatory finding." M.I. expresses concern that such an "adjudication" could be introduced into evidence at a "tenure charge" or other administrative proceeding brought against him. M.I. also alleges that this adjudication will be damaging to his professional reputation. Consequently, M.I. argues that he is entitled to judicial review of DYFS' findings or, in the alternative, that DYFS' findings should be modified to delete any reference to the "preponderance of the credible evidence" standard, thereby avoiding the implication that those findings are "adjudicatory" rather than "investigatory."

Under Article I, paragraph 1, of the New Jersey Constitution, a person has a constitutional interest in protecting his or her "good name or reputation ... because of what the government is doing to that person...." Doe v. Poritz, 142 N.J. 1, 105, 662 A.2d 367 (1995). A person's reputation may be entitled to constitutional protection even if he cannot show "any other tangible loss." Id. at 104, 662 A.2d 367. Although a person's interest in protecting his reputation "trigger[s] the right to due process[,] [d]ue process is not a fixed concept, ... but a flexible one that depends on the particular circumstances." Id. at 106, 662 A.2d 367. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972). Thus, even if a person has a constitutionally protected interest, it does not automatically follow that the person must be afforded an opportunity for an adjudicatory hearing. See High Horizons Dev. Co. v. State of New Jersey, Dept. of Transp., 120 N.J. 40, 48-54, 575 A.2d 1360 (1990)

; New Jersey State Parole Bd. v. Byrne, 93 N.J. 192, 211, 460 A.2d 103 (1983).

In In re Allegations of Sexual Abuse at East Park High Sch., 314 N.J.Super. 149, 714 A.2d 339 (App.Div. 1998), and New Jersey Div. of Youth & Family Servs. v. M.R., 314 N.J.Super. 390, 715 A.2d 308 (App.Div.1998), we held that if DYFS finds that a child abuse charge against a teacher has been "substantiated," which results in the inclusion of his name in DYFS' Central Registry of...