DEPARTMENT OF CHILDREN AND
FAMILIES, INSTITUTIONAL
ABUSE INVESTIGATION UNIT,
Petitioner-Respondent,
v.
M.S.,
Respondent-Appellant.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0297-10T4
________________________________
Argued March 2, 2011 - Decided
Before Judges R. B. Coleman and J. N.
Harris.
On appeal from a Final Decision of the
Department of Children and Families,
Institutional Abuse Investigation Unit.
Steven J. Kaflowitz argued the cause for
appellant (Caruso, Smith, Edell, Picini,
P.C., attorneys; Mr. Kaflowitz, on the
brief).
Christine Di Marzio, Deputy Attorney
General, argued the cause for respondent
(Paula T. Dow, Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Ms. Di Marzio, on the
brief).
PER CURIAM
Appellant M.S. is a middle school health and physical
education teacher. He appeals from a determination of child
March 28, 2011
2 A-0297-10T4
neglect by the Chief of Staff of the Department of Children and
Families (DCF or Department), together with DCF's order to place
M.S.'s name in the Department's Central Registry maintained
pursuant to N.J.S.A. 9:6-8.11. The agency determination
followed a contrary finding by an Administrative Law Judge (ALJ)
who concluded that there was insufficient evidence to support a
finding of child abuse or neglect by a preponderance of the
evidence. From our review of the entire agency record, we find
that DCF's determination was not supported by substantial
evidence. Accordingly, we reverse.
I.
As the ALJ noted, "many of the facts are in dispute." We
gather the following from the factual record presented to the
ALJ over a four-day hearing, and reviewed by the Department,
taking care to account for the express credibility findings of
the ALJ.
On January 18, 2007, while walking outdoors between
classes, seventh grader K.R. stopped to cavort with friends
outside of the gym facility at the middle school he attended.
The gym's windows were protected on the inside by a grate and on
the outside by a wire mesh array, set back a few inches from the
large, vertically moveable window sashes. When a window pole
topped by a metal knob emerged from inside the gym and poked
through the outside wire mesh, K.R. grabbed it.
3 A-0297-10T4
M.S. was inside the gym at the time conducting a class, and
it was he who wielded the window pole. As the pole was pulled
back inside the gym, K.R. held on until his left hand became
trapped against the protective wire mesh. As a result of the
pole's movement, K.R. sustained a laceration and nerve damage
that required hospitalization, surgical treatment, and physical
therapy.
As the details of K.R.'s injury spread throughout the
school, its principal immediately contacted the Division of
Youth and Family Services (DYFS) to report the incident.
Shortly thereafter, an investigator from the Department's
Institutional Abuse Investigation Unit (the IAIU) commenced the
gathering of statements from witnesses, taking of photographs,
and following up on the medical condition of K.R.
After several months of interviews and evidence collection,
the IAIU's Findings Report declared that "[p]hysical [a]buse was
substantiated regarding [M.S.'s] actions, in accordance with
N.J.S.A. 9:6-8.21. [M.S. has] been identified as seriously
harming the child(ren) or placing the child(ren) at risk of
serious harm by other than accidental means." However, the same
Findings Report noted that "[n]eglect/[i]nadequate [s]upervision
was unfounded regarding [M.S.'s] actions."
M.S. immediately challenged the conclusions of the Findings
Report, which drove the dispute into the Office of
4 A-0297-10T4
Administrative Law (OAL). An ALJ was assigned to shepherd the
matter through the OAL, and hearings were conducted over four
non-consecutive days commencing in late 2009. Eleven witnesses
testified, and over thirty exhibits (including photographs and
witness statements) were examined. An Initial Decision was
issued on May 21, 2010, which concluded, "substantiation of
abuse was not proven." In reaching this decision, the ALJ found
the controversy revolved around whether the window pole was
"deliberately thrust through the wire mesh" or whether "it came
through the mesh unintentionally in [M.S.'s] effort to close the
window." Finding the evidence "in equipoise," the ALJ was
unable to conclude that the substantiation of abuse was proven
by a preponderance of the evidence.
The ALJ canvassed the record in detail, observed the
multitude of obvious contradictions and discordances, and
ultimately discounted the testimony of K.R. and M.S.,
characterizing the former's testimony as "lacking in
credibility," and noting the latter's testimony "will be given
little credence." Instead of relying upon the recollections of
the two most involved participants, the ALJ cobbled together
findings primarily from the other student eyewitnesses, who were
found "essentially credible, except that many of their specific
details were at odds with each other." One student witness was
discounted altogether because "he candidly admitted that he had
5 A-0297-10T4
no independent recollection of the incident and based his
statement on what others had told him."
In reconstructing the events of January 18, 2007, the ALJ
determined that K.R. "stopped by the gym window for the purpose
of disturbing the gym class." In an effort to abate the noise
from the disturbance, M.S. attempted to close a nearby window in
the gym by using the specially-designed window pole. In so
doing, M.S. inadvertently missed the socket intended for the
knob and pushed the apparatus beyond the plane of the window
sash. This propelled the end of the pole through the grid of
the outside wire mesh into the outdoors, leaving approximately
four or five inches (including the knob) exposed outside. K.R.
thereupon "grabbed the pole and tried to pull it out [of] the
window." M.S. then "removed the pole from the wire mesh and was
successful in closing the window on the second attempt."
According to the ALJ, M.S. did not realize that K.R. had been
injured at that time.
After the ALJ issued the Initial Decision, it was reviewed
by the Department pursuant to N.J.S.A. 52:14B-10(c). In
rejecting the Initial Decision, the Department disagreed with
the ALJ as to the relevant conduct of M.S. Instead of focusing
upon whether the window pole was intentionally or inadvertently
pushed through the wire mesh array by M.S., the Department
concentrated upon the "act of engaging in a tug-of-war with a
6 A-0297-10T4
student when the student is pulling a hooked or looped end and
where the pole is precariously protruding through ruptured wire
mesh." Finding, "it is clear that [M.S.] knew that a child was
holding the hooked end of the pole when he willfully yanked it
back through the window," and concluding that the tug-of-war was
"an intentional and reckless act willfully and knowingly engaged
in by M.S.," a substantial risk of harm existed to which K.R.
was exposed. Accordingly, the Department held that M.S.'s
conduct was intentional within the meaning of G.S. v. N.J. Div.
of Youth & Family Servs., 157 N.J. 161, 175 (1999) and found it
to constitute neglect under N.J.S.A. 9:6-8.21(c). This appeal
followed.
II.
A.
Our scope of review in this appeal is limited. "Reviewing
courts should give considerable weight to an agency's
interpretation of a statute the agency is charged with
enforcing." G.S., supra, 157 N.J. at 170. "'Absent arbitrary,
unreasonable or capricious action, the agency's determination
must be affirmed.'" N.J. Div. of Youth & Family Servs. v. C.H.,
414 N.J. Super. 472, 480 (App. Div.) (quoting G.S., supra, 157
N.J. at 170), same result on reconsideration, 416 N.J. Super.
414 (App. Div. 2010).
7 A-0297-10T4
Notwithstanding the foregoing, this court does not clone
agency action. N.J. Dep't of Children & Families' Inst. Abuse
Invest. Unit v. S.P., 402 N.J. Super. 255, 268 (App. Div. 2008).
"[O]ur appellate obligation requires more than a perfunctory
review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123
(App. Div. 2002). We are instructed to engage in a "careful and
principled consideration of the agency record and findings."
Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
However, only if "'there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record'" are we obliged to provide a remedy.
N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504,
509 (App. Div. 2010) (quoting In re Herrmann, 192 N.J. 19, 27-28
(2007)). Additionally, where an agency head rejects a
recommendation of an ALJ, the basis for rejection must be set
forth with particularity and new or modified findings must be
supported by sufficient, competent, and credible evidence in the
record. N.J.S.A. 52:14B-10(c).
B.
Title Nine controls the determination of abuse and neglect
cases. N.J.S.A. 9:6-8.21 to -8.73. The Department relied upon
N.J.S.A. 9:6-8.21(c)(4)(b) in concluding that child neglect had
occurred. The statute, in pertinent part, provides a definition
8 A-0297-10T4
of an abused or neglected child as:
a child 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,[1] as herein defined, to exercise a
minimum degree of care . . . (b) 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. 9:6-8.21(c).]
This court has held that the statutory phrase "minimum degree of
care" refers to conduct that is "grossly or wantonly negligent,
but not necessarily intentional." G.S., supra, 157 N.J. at 178.
The spectrum of child abuse and neglect ranges from situations
of "'slight inadvertence to malicious purpose to inflict
injury.'" Ibid. (quoting McLaughlin v. Rova Farms, Inc., 56
N.J. 288, 305 (1970)). The wellbeing of children is the
paramount concern. N.J.S.A. 9:6-8.8(b)(1).
The focal point of the Department's analysis was M.S.'s
"tug-of-war" with K.R., and its unfortunate sequelae: K.R.'s
serious hand injury. Two of the key ingredients in the
Department's mode of thought were the nature of the window pole
and the condition of the wire mesh array on the outside of the
1 The statute includes a teacher in the definition of "parent or
guardian." N.J.S.A. 9:6-8.21(a).
9 A-0297-10T4
gym windows, both of which the Department palpably got wrong.
First, it found that the window pole had a "hooked end," a
conclusion that is arguably semantically correct, but not
otherwise borne out by the record. The benign, rounded detail
of the working end of the apparatus is found in photographic
evidence collected by an IAIU investigator:
Additionally, the Department thought it material that the pole
was "precariously protruding through ruptured wire mesh." The
record supports neither the notion that the four or five-inch
protrusion to the outside was precarious nor the conclusion that
the wire mesh was "ruptured." These findings are plainly
arbitrary and unreasonable, based upon any fair reading of the
record.
10 A-0297-10T4
We are, however, more concerned with the Department's
finding that an improper tug-of-war ensued, in light of the
ALJ's conclusions to the contrary and the discordant pieces of
evidence concerning the happening of the event. We do not doubt
that the agency head is fully authorized to depart from the
determinations contained in the Initial Decision, but any such
departures in the face of explicit credibility findings must be
bottomed upon clearly expressed and particularized reasons for
rejecting the ALJ's hands-on analysis, and must be supported by
"sufficient, competent, and credible evidence in the record."
N.J.S.A. 52:14B-10(c). We are unable to detect that quality of
decision-making in this case.
First, in order to have a tug-of-war, there must be a
mutual pitting of opposites in a test of strength. Discounting
the versions of events from M.S. and K.R., what remained were
the wildly disparate versions of events from several middle
school-aged children relating an isolated incident that occurred
almost three years earlier, none of which could reasonably be
interpreted as bespeaking an unseemly tug-of war.
One student testified that M.S., along with two of his
students, was inside the gym pulling the pole while K.R. held on
to it outside. M.S. was described as "pulling it softly," while
"the reason that it got pulled so hard was because these other
two kids were pulling on the pole."
11 A-0297-10T4
Another student, one who was inside the gym attending a
fitness class, testified that M.S. "stuck [the pole] through the
fence on the window and [tried] to scare" away K.R. and others
who were bothering the class. The testimony revealed merely
that "[M.S.] pulled [the pole] back in" and that is when the
injury occurred.
A third student witness claimed that several students on
the outside of the gym "were playing with a pole," and "then
[K.R.] started screaming." This witness conceded that he
fabricated parts of his written statement that was provided to
an investigator from the IAIU, and that his recollection was
limited to "just remember[ing] I was playing, and then [K.R.]
started screaming."
The fourth student witness described the scene in similar
general terms as the others, but indicated that several students
inside the gym were attempting to pull the pole away from K.R.'s
grasp, and the encounter lasted "probably about a minute, two
minutes tops." The "tugging match," as described by this
witness, lasted until "the little hook . . . got caught in
[K.R.'s] finger and like scraped the skin and the meat and it
started bleeding." Afterwards, when M.S. was informed of K.R.'s
injury by this student, M.S. appeared surprised that someone was
injured.
12 A-0297-10T4
Another student eyewitness —— ten feet away from K.R., and
testifying, "I clearly [saw] it happen" —— declared that as M.S.
was closing a gym window with the pole, K.R. and others tried to
reach for the pole through the wire grid, but only K.R.
succeeded. In a quickly unfolding incident, "[K.R.] got hurt
while [M.S.] was trying to close the window." When the ALJ
mentioned to the witness that her written statement declared
that M.S. "was trying to open the gym window with a window
pull," the student indicated that the difference between opening
and closing the window was not important to her "because it's
the same thing. It's either you pull it up or you pull it
down."
The last student witness was inside the gym at the time of
the incident. He indicated that K.R. and others were disturbing
the gym class, and he observed "[M.S.] tak[e] a stick and open
the window and tell[] them to go to class." According to this
witness, "the pole kind of slipped or something when [M.S.] was
pushing it open, and when he went to go bring it back, they
grabbed it." M.S. was described as telling those holding the
pole "to let it loose," and when they did not, another student
inside the gym took hold of the pole "trying to pull it from
behind [M.S.]." Eventually, those outside "let the pole go" and
"[t]he boy looked down at his hand."
13 A-0297-10T4
From this welter of contradictory testimony we cannot
ascertain the basis for the Department's certitude that M.S.'s
conduct constituted a "tug-of-war" amounting to "an intentional
and reckless act willfully and knowingly engaged in by M.S."
The most that can possibly be said, as a matter of law, is that
in trying to retrieve the window pole from the grip of a
boisterous student, M.S. negligently wrenched the apparatus,
which contributed to K.R.'s injury. This plainly does not
approach the level of gross negligence or recklessness, and the
available evidence does not support a conclusion that M.S. was
guilty of child neglect within the meaning of Title Nine.
What is missing from the Department's analysis is a
detailed review of "the circumstances leading up to the
accident." G.S., supra, 157 N.J. at 175. For example, little
consideration was given to the ALJ's finding that the evidence
was "in equipoise." A careful sifting of the testimonial crosscurrents
was not performed, nor was a thorough correlation of
the documentary evidence conducted. Fortified by the
unquestioned evidence that M.S. was not even aware that an
injury had occurred, we conclude that he does not require the
heightened governmental supervision or deserve the adverse
reputational consequences for an individual listed in the
Central Registry, N.J.S.A. 9:6-8.11. See N.J. Div. of Youth &
14 A-0297-10T4
Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004),
certif. denied, 182 N.J. 426 (2005).
We shall not sacrifice our common sense of the dynamics of
the school environment to the Department's fervent protection of
children. The evidence unmistakably shows that K.R.'s injury
was an unfortunate accident, no more and no less. The retrieval
of the window apparatus was not part of a pattern of neglect,
and under these circumstances cannot be elevated to a pernicious
assault. While we appreciate that in a heartbeat a child can be
put at risk, we cannot agree that the record we have reviewed
supports the Department's finding of child neglect by M.S.
Reversed. The entry of M.S.'s name in the Central Registry
shall be removed.
