Opinion
DOCKET NO. A-4180-11T1
03-12-2013
DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT, Petitioner-Respondent, v. R.O., Respondent-Appellant.
Robert D. Kuttner argued the cause for appellant (Kuttner Law Offices, attorneys; Mr. Kuttner, on the brief). Julie B. Christensen, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Christensen, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the State of New Jersey Department of Children and Families, Docket No. AHU #10-554.
Robert D. Kuttner argued the cause for appellant (Kuttner Law Offices, attorneys; Mr. Kuttner, on the brief).
Julie B. Christensen, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Christensen, on the brief). PER CURIAM
R.O., a former child care counselor at Bonnie Brae Residential Facility (Bonnie Brae), a treatment facility for youths ranging in age from eleven to eighteen, appeals from the final decision of the Department of Children and Families Institutional Abuse Investigation Unit (Department) that he physically abused a thirteen-year-old resident by pushing and choking him. He argues the agency's decision was erroneous because its acting commissioner made her own findings of fact instead of giving deference to the Administrative Law Judge (ALJ), misapplied case law, and violated the residuum evidence rule. We disagree and affirm.
I.
On December 3, 2005, the Department received a referral from Michael Maher, the supervisor of Bonnie Brae, reporting that H.J., a thirteen-year-old resident, was pushed and choked by twenty-two-year-old child care counselor R.O. Maher stated that Veronica, a child care counselor, reported to him that she observed R.O. choke H.J. with both hands and pin him against the wall. Consequently, she approached them and told R.O. to stop. Maher did not observe any visible injuries to H.J. When Maher asked H.J. why R.O. grabbed him, he replied that he had been knocking on the female residents' bathroom door, and R.O. observed this and became upset. Maher notified the Department that R.O. had been sent home and suspended pending investigation.
At the time of the administrative law hearing, Veronica had changed her last name from TenEick to Moeller, so for ease of reference, and with no disrespect, we will refer to her as Veronica.
In response, the Department assigned Special Response Unit Worker Marcos Yepez to investigate the allegations. On December 4, 2005, Yepez met with H.J., who reported that R.O. became upset with him because he thought H.J. was "messing with another resident or another staff member." H.J. related that R.O. "grabbed him by his right arm and escorted him out by hooking both arms from behind." H.J. also noted that while escorting him outside, R.O. pushed him down the stairs, and after he attempted to get back inside, he was again pushed by R.O.
H.J. stated that after he was brought outside, R.O. "swung at him an[d] hit him on his bottom lip." Yepez did not observe any bruises there. H.J. also reported to Yepez that he bled temporarily and that R.O. "grabbed him by the neck and tried to choke him." H.J. said Veronica observed the incident, approached them, and told R.O. to stop. According to H.J., other residents had also witnessed this incident. H.J. further claimed that R.O. had told him that he was "lucky" Veronica was there; otherwise, he would have gotten hurt.
H.J. advised that he was not hurt, and Yepez did not observe any bruises when H.J. removed his shirt. Yepez concluded that it "appears that [R.O.] did hit [H.J.] and used excessive force towards him."
On December 5, 2005, Institutional Abuse Investigation Unit (IAIU) Investigator Arlene Schwartz conducted a follow-up investigation and spoke to H.J. regarding the incident. Schwartz reported that H.J. told her that R.O. thought he was going to retaliate against another resident who had previously hit him. H.J. also had knocked on the staff bathroom door. Accordingly, R.O. told him he was taking him outside to "do a consequence." H.J. then cursed at him and walked into the living room.
H.J. related to Schwartz that R.O. entered the living room and told him he was going to take him outside to rake leaves as his consequence. Again, H.J. cursed at him, so R.O. grabbed him by his right arm off the couch, used H.J.'s body to open the door, and took him outside. H.J. further reported to Schwartz that once he was outside, R.O. pushed him down two steps.
H.J. was not very happy to be outside, so he started yelling at R.O. and attempted to get back inside by going around him. H.J. reported that R.O. then grabbed his arm, slammed him up against the wall, placed two hands on his neck, and proceeded to choke him. H.J. cursed at him and tried to push him off, and then Veronica intervened and told R.O. to get his hands off of H.J., and after further pushing, the two males were finally separated. H.J. also informed Schwartz that R.O. told him he was lucky Veronica was there or R.O. would have hurt him.
Schwartz's report noted that she then spoke with Alleshka Velez, a child care counselor, who also witnessed the incident. Velez told Schwartz that she saw H.J. knock on the bathroom door and run away and that Veronica was in the bathroom. Velez stated that R.O. ran after H.J. and told him he wanted to take him outside, which H.J. refused. Therefore, R.O. grabbed him by his right arm and said "Come on, let's go." H.J. was resistant and attempting to drop to the floor, so R.O. grabbed him by both arms and picked him up, used H.J.'s body to open the door, pushed him down the stairs, and took him outside.
Velez corroborated H.J.'s story that he tried to get back into the building by going around R.O., and consequently R.O. grabbed him by one arm on each shoulder, pushed him against the wall, and put both hands around his neck. She heard H.J. yell at R.O. to get off of him. She explained that Veronica went outside to calm H.J. down, but he was hyper and still being pushed by R.O., so Veronica got in between them and yelled "[g]et the fuck off him," and R.O. let go. Velez also heard R.O. say to H.J. "[y]ou're lucky they're here or I would have fucked you up."
Schwartz reported she also spoke with Kathryn Van Sickle, a nurse at Bonnie Brae. The nurse said she spoke with H.J. by phone the night of the incident, and he reported to her he had been choked and his ankle hurt. She did not feel he needed any medical attention at that point other than to put ice on his ankle.
Schwartz also spoke with three child witnesses. K.R. saw R.O. push H.J.'s head into the wall and heard R.O. say H.J. was lucky Veronica was there. D.A. asserted that after H.J. was brought outside, H.J. attempted to get back inside, but R.O. grabbed his shirt and slammed him into the brick wall and "[c]hoked him kinda." A.M. reported that he was horsing around with H.J., and R.O. thought H.J. had punched A.M., which A.M. said he had not. The next thing A.M. saw was R.O. throwing H.J. out the door. Then H.J. started cursing at R.O., and R.O. "grabbed him by his shirt and threw him up against the wall and choked him with two hands."
That same day, Schwartz spoke with Philip Errico, the Residential Director of Bonnie Brae. He stated that he was on the Restraint Review Committee, and claimed that R.O. is "quick to put his hands on residents." Errico asserted that R.O. was told he was restricted from "doing restraints" or initiating them. Errico noted that R.O. was to be terminated because he did not follow instructions.
On November 19, 2005, prior to the incident involving H.J., R.O. met with Assistant Residential Director Laurethea L. Kidd to discuss an incident in which R.O. inappropriately placed his hands on a resident. Kidd's memorandum reflects that she notified R.O. that the Restraint Review Committee determined he did not follow protocol, and he was not to take the lead on any hands-on intervention, but he could assist in a restraint if necessary. R.O. stated he understood. Kidd also told R.O. that he would be required to attend Professional Crisis Management recertification training.
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Schwartz confirmed H.J. and Velez's statements after speaking with Veronica on December 6, 2005. Veronica told Schwartz that she had gone into the staff bathroom the night of the incident, and H.J. knocked on the door. She opened the door and saw him running into the living room. R.O. then approached H.J. and told him what he did was inappropriate and that he was going outside to rake up leaves and pick up garbage. H.J. refused and went into the living room and sat down. R.O. picked him up, but she did not see how, but she did see R.O. take H.J. to the door and push him outside and down two steps.
Veronica told Schwartz that H.J. then attempted to make his way back inside, but R.O. pushed him down again. By the time she went outside, H.J. had made his way up the steps to the front door, but R.O. grabbed him by the throat and pinned him up against the wall, which caused her to scream at him to let go and get off. She also noted that Velez heard her scream and opened the door. Veronica heard R.O. tell H.J. that he was lucky Veronica saved him. She then took H.J. to another cottage and reported the incident.
In Schwartz's interview with R.O. that day, he told her that H.J. and A.M. were "roaming around, cursing and talking about Veronica in inappropriate sexual gestures." R.O. stated that he intervened in their conversation, and H.J. gave him "attitude." R.O. then saw the boys following Veronica to the bathroom door and trying to look in. He told H.J. not to do anything stupid. A few minutes later he again saw H.J. appear near the bathroom door, and it looked to him as though H.J. was trying to open the door. R.O. told him twice to get a coat because he was going to rake some leaves as a consequence for his behavior.
However, H.J. responded by being verbally abusive, kicking him, and saying "Fuck you" and allegedly repeated this behavior. R.O. classified this as a "high magnitude disruption" and performed a wrist tricep restraint on H.J.'s left arm. H.J. was sitting down and kicking, so R.O. told him to get up, which he refused, therefore R.O. escorted him out the door to calm him down and for him to perform his consequences. H.J., however, was "resisting and struggling and trying to get out and maneuvering his hands," so R.O. "pushed the door open with [his] body to get [H.J.] through the door." R.O. stated that H.J. then went down two stairs and R.O. released him, but H.J. continued to struggle down the remaining few stairs.
Because R.O. would not let H.J. back inside, H.J. became frustrated and started cursing. Then H.J. started rushing toward R.O., and he looked like he was going to hit R.O. with "his hands balled up doing a dance number." Accordingly, R.O. pushed him backwards while other residents were trying to open the door. H.J. tried to get inside but R.O. blocked him. As a result, H.J. became frustrated and hit R.O. hard in the face.
R.O. stated that, "for [his] protection[,]" he then went to grab H.J. by the chin, as it was his instinct, and his "hands slipped down to [H.J.'s] neck." According to R.O., he was not trying to compress H.J.'s neck but they were against the wall, and H.J. was being "unsafe to [him.]" R.O. related that as soon as he released H.J., Veronica came up and yelled at him to stop, so he let go.
On January 9, 2006, Harry Kostick, Human Services Manager, reported to Schwartz that R.O.'s termination was to be effective as of December 3, 2005, but instead R.O. resigned effective the same date.
Based on Schwartz's report, the Department substantiated R.O. for physical abuse because of the amount of risk to the resident and the fact that he was not to perform any restraints or initiate them. In a March 28, 2010 letter, R.O. requested an administrative hearing.
II.
A plenary hearing was conducted before ALJ Gail M. Cookson on November 3, 2011. Veronica, Errico, and Schwartz testified for the Department. R.O. testified on his own behalf.
Veronica testified that she remembered being outside in the cold and seeing H.J. and R.O. in an altercation. She stated she observed, from about six feet away, R.O. with his hands around H.J.'s neck, and she yelled at R.O. to get off of him. She did not recall seeing any physical marks on either H.J. or R.O.
Errico elaborated on Professional Crisis Management (PCM) training during his testimony. He explained that the training is a twenty-two hour course, with practical and written tests, during which the staff learn how to speak to residents, what to say and what not to say to them, how to de-escalate situations, and how to physically intervene in a way that maintains safety when there is a crisis. Errico then described how staff members are trained to handle behavioral issues from the onset to resolution using PCM protocol.
Errico testified that in either September or October 2005, R.O. was involved in an incident where he placed his hands on a resident who refused to take his feet off the couch. Errico explained that staff were not to place their hands on a resident for non-compliance and that restraints are only used for harm to self or harm to others. Since R.O. violated protocol, Errico directed him to be educated on the subject. However, no restrictions were placed on him.
R.O. again improperly used restraints in November 2005. As a result, Errico directed Kidd to inform R.O. that he was not to place his hands on residents because his judgment was not lining up with Bonnie Brae's protocols. Errico related that R.O. could assist in a restraint after this incident, but he needed some mentoring, and he would benefit from allowing another staff member to take the lead. Errico also thought R.O. should go through PCM training again.
When asked what is the appropriate action to take by a worker being punched in the face in a confined area when no other worker is around, Errico answered a "one arm wrap around." He also stated that at the time of the incident, R.O. was not permitted to initiate restraints. He elaborated that "there is an expectation of self control that [he] place[s] on all staff[,]" and did not believe that being kicked by a resident would be grounds for a restraint unless it was continuous. Errico acknowledged that H.J. was not substantially injured.
Schwartz's testimony was similar to her report. She stated that H.J. told her R.O. thought H.J. was going to retaliate after another resident hit him, so R.O. told him he was taking him outside to do a consequence. However, H.J. refused, cursed at him, ran over to the bathroom door and knocked, and then ran away. H.J. refused to go outside for a consequence and cursed at him, so R.O. picked him up and took him outside using H.J.'s body to open the door. Schwartz stated that H.J. told her he was reacting because he was angry about going outside; it was freezing, and he was only wearing shorts and a t-shirt.
Schwartz testified that H.J. told her he tried to pass by R.O. to get inside and was yelling at him to get off of him, so in response "R.O. put his hands around his neck and slammed him up against the wall." H.J. then explained to Schwartz how Veronica appeared and yelled at R.O. to stop what he was doing, R.O. continued to push him and said he was lucky Veronica was there or he would have been hurt, and then R.O. finally released him. Schwartz also testified about her meetings with Velez and R.O. after the incident consistent with her report.
After her testimony, the Department's counsel attempted to enter into evidence the screening summary, Yepez's referral response report, the investigative summary, documentation of response, and letters of investigation. R.O.'s counsel made a residuum objection, arguing all of it was hearsay, as there had been no evidence verifying the documents except Veronica's testimony. R.O.'s counsel also stated there had been no witnesses to the incident, no evidence of an injury, no testimony from H.J., thus all the testimony during the hearing was hearsay. The judge reserved decision.
On cross-examination, Schwartz acknowledged that H.J. never told Yepez he was choked, only that R.O. tried to choke him. She also acknowledged that prior to being escorted outside, H.J. was struggling and using foul language, and R.O. alleged that H.J. was getting into a fighting stance when he was outside. Schwartz denied that the only reason the incident constituted child abuse was because R.O.'s hands were on H.J.'s neck, explaining that there was a substantial risk of harm to the resident, and R.O. was not to perform any restraints.
R.O. testified that when he started working at Bonnie Brae, he underwent restraint and other training. He stated he was unaware of the two prior incidents that Errico referred to in his testimony. He also asserted he was unaware of the fact he was written-up or that he had restrictions on what restraints he was allowed to perform.
R.O. testified that on the night of the incident he saw H.J. and A.M. lingering around the activity room. R.O. stated that the two boys were previously in the kitchen "making inappropriate gestures about Veronica's body." He later saw H.J. in front of the staff bathroom and observed him knocking on it, and it looked like he was trying to pull down the lever. R.O. told him to stay away from the bathroom and go to either the activity or living room. Soon afterwards, R.O. saw H.J. knocking on the bathroom door again, and this time he was sure H.J. was attempting to open up the latch. R.O. asserted he then told H.J. his behavior was inappropriate, and he was going outside to rake leaves and pick up garbage, but H.J. gave him attitude and started cursing. R.O. told H.J. to get his coat and complete his consequence, but H.J.'s attitude "escalated" with a "temper tantrum and then he tried to hit [him]." Eventually, R.O. applied the wrist tricep restraint on H.J. and attempted to escort him outside, but H.J. struggled, trying to maneuver out of the restraint.
It was R.O.'s testimony that he used his own body, not H.J.'s, to open the door to get outside. R.O. claimed he then released H.J., who struggled down two or three steps, became agitated, and started trying to hit R.O. R.O. denied that H.J. ever tripped down the stairs. According to R.O., he then told H.J. he was not going back inside because he was a high magnitude disruption. H.J. tried to hit him and he made contact with R.O.'s face. Then A.M. tried to open the door to let H.J. back inside, but R.O. intervened, so H.J. again tried to strike him.
R.O. stated that because H.J. was trying to "box" him, he "used one hand on his chin . . . which led down to his neck." He released H.J. when Veronica told him to do so. R.O. denied he ever used two hands on H.J.'s neck and claimed he did not squeeze, and the only reason one hand was on H.J.'s neck was because it slipped. R.O.'s only injury from the incident was a small bruise on his cheek.
Counsel sent the ALJ written submissions after the hearing. On December 21, 2011, the ALJ issued an initial decision recommending a reversal of the substantiation of abuse. She noted it was undisputed that prior to the escalation, H.J. was horsing around the staff bathroom and cursing, it was a chilly December evening, and H.J. was not appropriately dressed for raking leaves outside. The ALJ discredited the portion of R.O.'s testimony when he "described his hands as reaching out to the boy's chin in a defensive move to avoid being punched and then slipping down by accident to H.J.'s neck." She also found it more likely than not that R.O. "was physically assertive with H.J. both inside and outside."
Her assessment of the incident, however, was that R.O. "forgot all his PCM training in the heat of a struggle with a mouthy teenager while trying to re-establish control of a bad situation." Noting the dictionary definition of "choke" is "to check or block normal breathing of by compressing or obstructing the trachea," and finding no evidence that R.O. applied any pressure or squeezed the trachea, she concluded that he "did not choke H.J. in the full sense implied by that word." Rather, she found that R.O. "placed his hands on or near H.J.'s neck in order to pin him up against the wall." The ALJ also found, however, that R.O. "forcefully moved H.J. up against the wall and placed his hands on H.J. around the neck in a manner that could have led to injury."
She additionally concluded that R.O. did not intend to hurt the resident and was only acting in self-defense. Although she found that R.O. exercised poor judgment and poor crisis management skills, she concluded that the matter was an "isolated incident" and that it was "highly unlikely to be repeated." The ALJ thus found the Department failed to satisfy its burden of proving "substantial neglect, recklessness or gross negligence" by a preponderance of the evidence.
The Department filed exceptions to the initial decision, arguing that R.O.'s "inappropriate use of physical restraints escalated to the point of placing H.J. at imminent risk of harm." The Department emphasized that the ALJ did not find R.O.'s statements about attempting to grab H.J.'s chin to be credible and had concluded that R.O. "'placed his hands on H.J. around the neck in a manner that could have led to injury.'" Notably, the Department contended there was a factual dispute as to R.O.'s intent, because multiple witnesses reported that R.O. told H.J. he was "lucky" Veronica saved him, and the judge did not discredit their testimony.
Acting Assistant Commissioner (AAC) Rusen issued her final decision on March 15, 2012. She held the abuse was substantiated by the credible evidence based on the standard of a minimum degree of care as articulated in G.S. v. Department of Human Services, 157 N.J. 161, 178 (1999), i.e., "conduct that is grossly or wantonly negligent, but not necessarily intentional" and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" She further noted that the intent of a parent or guardian is irrelevant. Id. at 175.
AAC Rusen concluded that R.O. "failed to exercise a minimum degree of care when he failed to follow proper protocol in responding to an unruly resident, and exposed H.J. to a substantial risk of harm by placing his hands around H.J.'s neck and using his body to force H.J. against the wall." She found that if Veronica had not intervened, H.J. would have been seriously harmed. Noting that several witnesses heard R.O. tell H.J. he was "lucky" that Veronica intervened, she disagreed with the ALJ's conclusion that R.O. did not intend to hurt H.J.
Furthermore, AAC Rusen found "illogical" the ALJ's holding that R.O.'s actions were not willful and wanton because he simply "'exercised poor judgment and poor management skills in dealing with a troubled youth.'" Rather, based on R.O.'s training in PCM and his knowledge of the residents and the type of behavior to expect from them, AAC Rusen found that "R.O. did not act in a reasonable manner when he initiated physical contact with [H.J.] in response to H.J.'s immature behavior in the bathroom." She noted the testimony of Errico that counselors are taught to verbally redirect a child in order to de-escalate the situation, which R.O. failed to execute.
AAC Rusen disagreed with the ALJ's conclusion that because this was an isolated incident and unlikely to be repeated, it should not be substantiated as physical abuse. Furthermore, she was not satisfied this was an isolated incident, noting Errico's testimony about the two separate prior occasions in which R.O. inappropriately used his hands. Because the current incident was the third time in six months that R.O. applied physical force inappropriately, AAC Rusen could not "simply attribute his actions to youth, inexperience and lack of knowledge."
III.
This appeal ensued. On appeal, R.O. argues that the AAC erred in making her own findings of fact rather than accepting the ALJ's findings which were based on substantial credible evidence in the record, and in applying the case law to those facts. R.O. additionally claims the AAC substituted her own findings of fact in violation of the residuum evidence rule. Based on our review of the record and applicable law, we are not persuaded by these arguments.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). In reviewing an administrative decision, we are generally restricted to three inquires:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).]
On appeal, the factual determinations of an administrative agency are "generally sustained if they are supported by substantial evidence on the whole record." Atkinson v. Parsekian, 37 N.J. 143, 149 (1962). "We may reverse only if we conclude that the decision of the administrative agency is arbitrary, capricious or unreasonable, or is not supported by substantial credible evidence in the record as a whole." J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div. 2000) (internal citations omitted).
However, we are "'in no way bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 302 (2011) (quoting Mayflower Secs. Co. v. Bureau of Secs., 64 N.J. 85, 93 (1973)). Nonetheless, if substantial evidence supports the agency's decision, the reviewing court "may not substitute its own judgment for the agency's even though the court might have reached a different result." In re Carter, supra, 191 N.J. at 483 (internal quotation marks and citation omitted).
In a proceeding before an administrative agency, "it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt." Atkinson, supra, 37 N.J. at 149. "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). See also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The definition of an "abused" child is
a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement . . . .Furthermore, the statute defines an abused child as "a child whose physical, mental, or emotional condition has been impaired . . . as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . by unreasonably inflicting . . . harm, or substantial risk thereof." Ibid.
[N.J.S.A. 9:6-8.21(c).]
With these principles in mind, we address R.O.'s arguments. R.O. challenges the following conclusions by AAC Rusen as not supported by the evidence: he "seemed to get involved so quickly"; he exposed H.J. to a substantial risk of harm; if Veronica had not intervened when she had, H.J. would have been more seriously harmed; it is irrelevant that he had no intention to harm H.J; and this was not an isolated incident.
In reviewing the decision of an ALJ, an agency head "may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so." N.J.S.A. 52:14B-10(c). However, the agency head "may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." Ibid. See also In re Snellbaker, 414 N.J. Super. 26, 36 (App. Div. 2010).
In this case the AAC did not disagree with any of the ALJ's credibility findings. Rather, she accepted the ALJ's findings that R.O. was physically assertive with the resident and did not grab his chin as a "defensive move," he had his hands on the resident's neck, and he forgot about his training. She then reached different legal conclusions, finding that R.O. abused the resident as a matter of law. She explained in detail the reasons for her departure from the ALJ's initial recommendation. We are satisfied the agency's final determination is amply supported by the record and entitled to our deference.
AAC Rusen noted Errico's and Veronica's testimony that "a fight is an extreme and rare situation at a residential facility." She reasoned that "R.O. clearly had other options available in which to re-direct H.J., and was aware of the protocol Bonnie Brae followed when he interacted with H.J., but disregarded them," so it was a reasonable conclusion that R.O. was "quick" to turn the incident into a physical altercation.
The credible evidence supported AAC Rusen's conclusion that R.O. failed, as a matter of law, "to exercise a minimum degree of care when he failed to follow proper protocol in responding to an unruly resident, and exposed H.J. to a substantial risk of harm." See G.S., supra, 157 N.J. at 181 (holding that "a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child"). As AAC Rusen explained, R.O. himself described the incident as chaotic and acknowledged he used his body to block H.J.'s boxing and force him against the outside wall. R.O. also admitted he placed a hand on H.J.'s neck and did not release his hold until Veronica intervened. In fact, the ALJ expressly found that R.O. "forcefully moved H.J. up against the wall and placed his hands on H.J. around the neck in a manner that could have led to injury."
As noted by AAC Rusen, the ALJ's conclusion that R.O. did not intend to hurt H.J. is belied by the record. To the contrary, multiple witnesses testified that R.O. told H.J. he was "lucky" Veronica intervened or else he would have been hurt. Nevertheless, contrary to R.O.'s assertion on the appeal, as further noted by AAC Rusen, case law clearly holds that "under a wanton and willful negligence standard, a person is liable for the foreseeable consequences of [his or] her actions, regardless of whether [he or] she actually intended to cause injury." T.B., supra, 207 N.J. at 306 (emphasis added) (quoting G.S., supra, 157 N.J. at 179).
AAC Rusen was also well within her discretion in disagreeing with the ALJ's conclusion that R.O.'s conduct was merely the result of poor judgment and management skills of a young counselor and thus not willful and wanton under the case law. The safety of a vulnerable population depends on proper behavior by the counselors. R.O. was aware the residents at Bonnie Brae had severe emotional issues and often acted out inappropriately and, in fact, had expressly been trained in crisis management and counseling, and in the facility's protocol in responding to an unruly resident. Thus AAC Rusen appropriately concluded that R.O. did not act reasonably in failing to deflect and de-escalate a volatile situation but, rather, demonstrated an "overall disregard for H.J.'s safety." As she astutely explained, "a reasonable person would not have struggled up and down the stairs with H.J. and then forcefully pin him against the wall by the neck, a highly sensitive area, once H.J. allegedly became combative."
We disagree with R.O. that the Department's entire case is based upon hearsay statements which are not supported by any competent evidence. We further reject R.O.'s argument that under the residuum rule, his was the only admissible testimony.
Despite the admissibility of hearsay evidence at administrative proceedings, "some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness." N.J.A.C. 1:1-15.5(b). The Supreme Court has held that "a fact finding or a legal determination cannot be based upon hearsay alone." Weston v. State, 60 N.J. 36, 51 (1972).
Instead, "there must be a residuum of legal and competent evidence in the record to support it." Ibid. However, the Court explained that "[i]t is not possible to state a hard and fast rule as to the extent hearsay may be utilized in evaluating the sufficiency of the evidentiary basis of a particular administrative determination" but "much may be left to the discretion of the administrative official." Id. at 52.
In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 345-47 (2010), the Court gave guidance for the admissibility of documentary evidence in abuse and neglect cases and held that reports are permitted if made in the regular course of business. See also Rule 5:12-4(d) (permitting the Department "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel"). However, "a statement included within an otherwise admissible record or report may itself constitute inadmissible hearsay." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 803(c)(6) (2012).
The ALJ determined that Veronica could "see respondent and H.J. struggling down and back up the steps to the cottage." She also expressly credited Veronica's testimony that she observed R.O. "grab[] H.J. around the throat and press[] him up against the wall alongside the front door." The eyewitness testimony of Veronica, coupled with R.O.'s own admissions and the ALJ's credibility assessment of his statements, and Errico's description of the counselors' training in PCM protocol and in using restraints, satisfied the residuum rule and provided sufficient credible evidence to support the agency's finding of abuse. It is of no moment that H.J. did not testify at the hearing, and R.O. presents no legal basis for a negative inference to be drawn as a result.
In addition, Yepez's referral response report and Schwartz's investigation indicated there was physical abuse. Schwartz testified that Yepez's report was made in the regular course of business for the Department, and such reports are regularly kept in the Division's files. Similarly, the investigative summary report written by Schwartz was made on or near the time of her investigation, it was made in the regular course of business for the Department, and such reports are regularly kept in the Department's files. The administrative head is given great discretion in determining the extent hearsay may be utilized, Weston, supra, 60 N.J. at 52, and we discern no error in this regard.
AAC Rusen's consideration of the reference in the reports to the two prior incidents of R.O.'s alleged inappropriate conduct with other residents was not error because it was relevant to R.O.'s notice of the protocol for restraints. Moreover, Errico's testimony about his ensuing instructions to Kidd about re-training and mentoring R.O. and the recommendations made by the Restraint Relief Committee, of which he was a member, constituted competent evidence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION