Opinion
DOCKET NO. A-4903-14T1
01-12-2017
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent, v. I.S., Respondent-Appellant.
Douglas M. Greene argued the cause for appellant (Mr. Greene, attorney, on the brief; I.S. on the pro se brief). Alicia Y. Bergman, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Bergman, on the briefs).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Currier. On appeal from the New Jersey Department of Children and Families, Division of Child Protection and Permanency, Docket No. AHU 11-1259. Douglas M. Greene argued the cause for appellant (Mr. Greene, attorney, on the brief; I.S. on the pro se brief). Alicia Y. Bergman, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Bergman, on the briefs). PER CURIAM
I.S. appeals a May 12, 2015 final agency decision of the Division of Child Protection and Permanency ("the Division"). The Division concluded that appellant had engaged in substantiated abuse or neglect of her son D.J. by inflicting excessive corporal punishment upon him, in violation of N.J.S.A. 9:6-8.21(c)(4)(b). We affirm.
The relevant facts were developed at a hearing before an administrative law judge ("ALJ"), at which appellant and a Division investigator testified. The incident that prompted the Division's involvement occurred on July 12, 2011 at the residence of appellant, D.J., and his two siblings. D.J. was then nine years old.
According to the testimony and investigative reports, appellant asked D.J. to bring his book bag downstairs from his room so appellant could clean it. D.J. emptied his bag in his room and brought it downstairs. Appellant told him to return to his room, place the items back in the bag, and bring it back downstairs. When he did not do this quickly enough, appellant grabbed her older son's leather belt and attempted to hit D.J. on the legs. After striking his legs twice with the belt, she missed his legs on the next strike when he attempted to duck to avoid being hit. As a result, the belt hit D.J. in the face. He was also hit on the arm.
The belt left raised, red welts on both D.J.'s arm and his face, which turned to bruises. The ALJ at the hearing was supplied with color photographs taken several days later of the marks left on D.J.'s face, which have also been included in the record on appeal. The photos clearly show a large red discoloration spanning several inches on the child's left cheek, and a large bruise underneath that red area close to the jawline.
D.J.'s father came to pick him up for a visit two days later on July 14, 2011. The father saw the welts and bruising on the boy's face and arm. He brought D.J. to the Rahway Police Department to report the injuries. The police referred the matter to the Division. A caseworker responded and interviewed the boy and his father the following day, when the caseworker photographed D.J.'s injuries. The caseworker also interviewed D.J.'s two siblings and appellant.
The caseworker's interviews established that appellant did, in fact, hit D.J. with a leather belt, which resulted in the welts and bruising. Appellant admitted to the caseworker that she has hit her children to discipline them in the past, usually using her hand. She did admit that she had used a belt to strike the children at least once in the past. D.J.'s siblings also told the caseworker that defendant had previously hit him with a belt on multiple occasions. Based on this information, the Division reported a finding of substantiated child abuse.
Appellant challenged the Division's substantiated finding at the administrative hearing. She admitted that she had hit D.J. with a belt on the day in question, but explained that the blow to his face was accidental because he had suddenly moved to dodge the belt, which was directed at his legs. She also presented several mitigating circumstances, stating that she had been under stress at the time of the incident because she was going through a divorce, was having financial difficulties, and her mother had passed away a few months earlier. She also noted that she had cooperated with the Division, and that she and the children had been attending counseling.
The ALJ found that appellant had struck D.J. with the belt and had caused his injuries. Nevertheless, the ALJ concluded that appellant's conduct did not rise to the level of excessive corporal punishment within the meaning of the statutes and case law. Within her analysis, the ALJ took into account appellant's personal circumstances and remorse, and that she acknowledged the need to develop more appropriate methods of discipline.
On further review, an Assistant Commissioner within that agency disagreed with the ALJ's application of the governing legal standards to the record. In a seven-page decision, the Assistant Commissioner concluded that appellant "failed to exercise a minimum degree of care . . . when she struck her son with a leather belt with sufficient force to cause bruising on his arm and on his face, in the proximity of his left ear." As the Assistant Commissioner further noted, "[t]his was a willful and wanton act from which the child fortuitously evaded serious injury, but which nevertheless inflicted harm and exposed the child to a substantial risk of even greater harm."
In her present appeal, with the assistance of pro bono counsel, I.S. argues that the final agency decision unfairly penalizes her for what she characterizes as an isolated incident. She further contends that the Assistant Commissioner failed to take sufficiently into account her remorse and the cooperative steps she took to obtain counseling and parental skills training. She urges that the administrative finding of "substantiated" abuse is too harsh, and subjects her unnecessarily to the negative consequences of being placed on the Child Abuse Registry.
We acknowledge our appreciation for the pro bono efforts of counsel, who both authored a reply brief and advocated for his client at oral argument on appeal.
Under N.J.S.A. 9:6-8.21(c)(4), a child is considered "abused or neglected" when his
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, as herein defined, to exercise a minimum degree of care . . . 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[.]The Supreme Court has interpreted this definition to encompass "an intentional act that has unintended consequences[.]" G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999) (finding that Title Nine focuses on the circumstances surrounding the injury and the harm caused to the child, rather than on the parent or guardian's intent).
[N.J.S.A. 9:6-8.21(c)(4), in part (emphasis added).]
The Division's associated regulation concerning excessive corporal punishment, N.J.A.C. 10:129-2.2, lists the types of injuries which may be deemed abuse or neglect. Those injuries specifically include "[c]uts, bruises, abrasions, welts, or oral injuries[.]" N.J.A.C. 10:129-2.2(a)(9); N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), certif. dismissed as improvidently granted, 208 N.J. 355 (2011). See also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011). The bruises and welts on D.J.'s face, which are graphically shown in the color photographs, are sufficient in degree to support a finding of abuse.
We noted in K.A. three factors that can guide an assessment of whether a parent's infliction of physical discipline can comprise excessive corporal punishment: "(1) the reasons underlying [the parent's] actions; (2) the isolation of the incident; and (3) the trying circumstances which [the parent] was undergoing[.]" K.A., supra, 413 N.J. Super. at 512. The Assistant Commissioner's final agency decision in this case does not misapply those considerations, expressly or by implication.
Appellant's stated reason for the belt-striking — arising out of the child's failure to obey quickly enough her order to bring his book bag and its contents downstairs — can reasonably be considered an unjustified over-reaction to this nine-year-old boy's recalcitrance. Second, the incident was not truly isolated, as appellant admitted that she had physically disciplined her children frequently in the past, using a belt at least one time before. Third, the agency reasonably concluded that appellant's personal circumstances did not justify the degree of corporal punishment she used in this situation.
The Assistant Commissioner fairly distinguished the present case from the more extreme factual situation in K.A., in which the mother had used only her hand rather than a belt to strike her child, and the mother had been struggling to cope with the special behavioral problems posed by a developmentally disabled child. Ibid.
We must accord considerable deference to the Division and its administrative expertise within its arena of delegated statutory responsibility. See Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Having done so, we conclude that the final agency decision is not arbitrary or capricious or does not lack sufficient evidential support in the record. The Assistant Commissioner clearly identified adequate grounds to reach a different regulatory conclusion than the ALJ, based upon the record facts. See N.J.S.A. 52:14B-10(c).
We recognize and, indeed, commend appellant for her cooperation with the Division and the positive steps she has taken to assure that the abusive conduct is not repeated. Even so, a caregiver's post-incident improvement does not excuse past abuse or neglect, for case law requires us to look only at the risk of harm as of the time of the abuse and not at the time of the hearing. See Dept. of Children & Families v. E.D.-O., 223 N.J. 166, 189 (2015). Although we are very mindful of the negative consequences to appellant of being kept on the Child Abuse Registry, we are unable to conclude that the Assistant Commissioner's decision to do so on this record is arbitrary, capricious, or lacking in evidentiary and legal support.
At our request following oral argument, counsel helpfully submitted supplemental letter briefs addressing whether a remedial option in this case would be to classify appellant's conduct as "established" rather than "substantiated," and thereby avoid placing or keeping appellant on the Registry. As both parties acknowledged in those submissions, the Division's amended regulations creating the intermediate "established" category, N.J.A.C. 10:129-7.3(c), only became effective as of April 1, 2013, and is not retroactively applicable to the present incident from 2011. See 45 N.J.R. 738(a)(March 5, 2013). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION