child abuse neglect here requires level of gross negligence or recklessness

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NOT FOR PUBLICATION WITHOUT THE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.