Opinion
DOCKET NO. A-3604-13T1
05-12-2015
NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent, v. C.B., Respondent-Appellant. IN THE MATTER OF C.L.B., a minor.
Charles J. Casale, Jr., attorney for appellant. John J. Hoffman, Acting Attorney General of New Jersey, attorney (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lori J. DeCarlo, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Waugh. On appeal from the New Jersey Department of Children and Families, Division of Child Protection and Permanency, Agency Docket No. AHU 11-1863. Charles J. Casale, Jr., attorney for appellant. John J. Hoffman, Acting Attorney General of New Jersey, attorney (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lori J. DeCarlo, Deputy Attorney General, on the brief). PER CURIAM
Defendant C.B. (Cathy) appeals the final administrative agency decision of the Director of the Division of Child Protection and Permanency (Division), which found that she abused her son C.L.B. (Clark). We affirm.
We use pseudonyms for confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
On October 21, 2011, the Division received a referral from then seven-year-old Clark's school, reporting that he had arrived at school that morning "with a bruise and swelling on his left eye lid[,] as well as a scrape on his forehead." Clark told a staff member that his mother had hit him with a belt.
The Division sent two workers to the school to investigate. They met with the school nurse, who told them that the injuries were not severe and that she had treated them with a cold compress. One worker then spoke to Clark, who told her he was disciplined for fighting with one of his brothers when he was supposed to be eating breakfast and getting ready for school. When he failed to obey his mother's order to stop, she disciplined him with a belt, part of which hit his eye. Clark told the worker that he was usually disciplined with time-outs or having things taken away, but that occasionally he would be "spanked" with a belt as a means of discipline.
The other worker spoke with one of Clark's brothers, who confirmed that they were sometimes disciplined with a belt, but normally had toys removed or were given time-outs. He also confirmed that Clark had been disciplined that morning. According to Clark's other brother, Clark moved when Cathy was attempting to spank him with the belt, causing the belt to hit his face.
The brothers are triplets.
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The workers went to the family home that night. Cathy told them that hitting Clark in the eye was an accident. She had intended to hit his backside with the belt because he was disobedient and fighting with one of his brothers. According to Cathy, the belt hit Clark's face because he moved by "ducking" when she went to hit him.
A few days later, a worker returned to speak with Cathy's husband, who told her that there must have been an accident. He conceded that he and Cathy occasionally used a belt to discipline the children. Cathy subsequently explained that she was on a tight schedule in the mornings because she had to get her children, the triplets and her two younger children, dressed, fed, and to their schools on time. Both Cathy and her husband agreed not to use that form of discipline in the future.
The Division substantiated Cathy for abuse based on the October 21 incident. In November, Cathy was notified of the substantiation and her right to appeal the decision to the Division Director. When she exercised her right to appeal, the matter was transferred to the Office of Administrative Law (OAL) as a contested case.
The Division then moved for summary disposition. Cathy acknowledged that the facts were largely undisputed and conceded that an unintended injury resulting from "a volitional act" could amount to "abuse," as that term is used in N.J.S.A. 9:6-8.21(c)(4)(b). However, she argued that the incident had resulted in no impairment or imminent danger of impairment to Clark, and that she did not fail to exercise a minimal degree of care for Clark.
On February 20, 2014, the Division's Director issued an order granting the Division's motion for summary disposition and affirming the finding of abuse. This appeal followed.
II.
On appeal, Cathy argues that the Division's finding of abuse was unwarranted because her action was not willful or wanton and Clark's injury was slight, rather than serious.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). A court may reverse only if it "conclude[s] 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); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Outland v. Bd. of Trs., 326 N.J. Super. 395, 399 (App. Div. 1999). We accord a "strong presumption of reasonableness" to an agency's "exercise of statutorily delegated responsibility." City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
Our limited standard of review of administrative agency decisions is informed by three inquiries:
(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; andWhere an agency's expertise is a factor, a court defers to that expertise, particularly in cases involving technical matters within the agency's special competence. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.), certif. denied, 176 N.J. 281 (2003).
(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).]
Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid. The purpose of the act is
to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).
[N. J.S.A. 9:6-8.8(a).]
Title Nine provides that an abused or neglected child is one
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, 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.The statute does not, however, define the term "excessive corporal punishment."
[N. J.S.A. 9:6-8.21(c)(4).]
In New Jersey Division of Youth & Family Services v. P.W.R., 205 N.J. 17, 36 (2011), the Supreme Court noted that,
by qualifying the prohibition [of corporal punishment] with the term, "excessive," the
statutory language plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment. Limiting state involvement only to interference with excessive corporal punishment requires the exercise of judgment by reviewing courts before a finding of physical abuse is entered against a parent.The Court also observed that "[a]buse and neglect cases are generally fact sensitive" and that "[e]ach case requires careful, individual scrutiny." Id. at 33.
In addressing the issue of "excessive corporal punishment" in the context of a parent slapping her teenage daughter in the face, the P.W.R. Court found the practice to be "hardly admirable." Id. at 20-21, 35. Nevertheless, the Court refused to credit the Family Part's finding of physical abuse because "[t]here was no evidence developed in [the] record showing the existence of bruises, scars, lacerations, fractures, or any other medical ailment suffered as a result of [the parent's] actions." Id. at 35-36.
In Division of Youth & Family Services v. K.A., 413 N.J. Super. 504, 512 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011), we found no excessive corporal punishment in a case in which the parent struck the child "five times on the shoulder with a closed fist," but "the force used did not lacerate the child's skin and did not require any type of medical intervention," and "[b]ruises, although visible, never exposed [the child] to any further harm if left untreated." We noted that the Administrative Code lends assistance in identifying excessive corporal punishment by listing types of injuries, including bruises, which may constitute abuse. Id. at 510-11 (citing N.J.A.C. 10:129-2.2).
In this case, the record reflects that, although other methods of discipline were more frequently used, Cathy's punishment of Clark with a belt was not an aberration, but was instead a punishment used on occasion by both parents. That, in itself, does not make the corporal punishment excessive. However, the record also reflects that the resulting injuries, consisting of a bruise and swelling on the left eye lid, as well as a scrape on the forehead, were all located in a vulnerable area of Clark's anatomy, his face, rather than the buttocks, where the belt was apparently intended to hit him. N.J.A.C. 10:129-2.2(a)(2) reflects the Division's concern about injuries to the head.
In an abuse case, there is no requirement that the parent actually anticipate that harm will result from the conduct at issue.
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288,
305 (1970). Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J. at 305. Knowledge will be imputed to the actor.
As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).
Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him
responsible for the injuries he causes. Ibid.
[G .S. v. Dep't of Human Servs., 157 N.J. 161, 178-79 (1999).]
The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S., supra, 157 N.J. at 177-79); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306-07.
Although Cathy may not have intended to hit Clark in the face with the belt, it is clear that she used the belt in such a way that it hit his left eye and forehead, causing a bruise and swelling. The eye is a vulnerable and vital organ. The fact that Clark did not, in fact, lose all or partial sight in the injured eye does not change the fact that he could have. The record supports a finding that Cathy acted with reckless disregard for Clark's wellbeing and put him at "substantial risk" of serious harm. Even if our law permits a parent to discipline a child as young as Clark with a belt, it does not permit the parent to do so in a grossly or wantonly negligent manner so as to put the child's eyes or other vital organs at significant risk of injury.
Consequently, we uphold the Director's finding that Cathy's conduct was abuse within the meaning of N.J.S.A. 9:6-8.21(c)(4). The decision (1) cannot be characterized as arbitrary, capricious, or unreasonable, (2) has ample factual support in the record, and (3) is consistent with the Legislature's intent in Title Nine.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION