DCPP VS. D.M. (NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISIONOF CHILD PROTECTION AND PERMANENCY)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1139-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Petitioner-Respondent,
v.
D.M.,
Respondent-Appellant.
_____________________________
Submitted March 22, 2017 – Decided September 22, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the New Jersey Department of
Children and Families, Division of Child
Protection and Permanency, Docket No. AHU 13-
1041.
Theresa Richardson, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Alicia
Y. Bergman, Deputy Attorney General, on the
brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
D.M.1 appeals from an October 1, 2015 final agency decision
of the Department of Children and Families (DCF) issued after a
contested hearing before the Office of Administrative Law (OAL).
DCF affirmed the substantiation of D.M.'s abuse of her adopted
son, D., and ordered that D.M.'s name be placed on the Central
Registry of Abuse/Neglect Perpetrators (Central Registry) pursuant
to N.J.S.A. 9:6-8.11. In so doing, DCF rejected the Administrative
Law Judge's (ALJ) contrary initial decision. Having considered
the parties' arguments in light of the record and applicable legal
principles, we affirm.
We glean the following facts from the record. In 1998, the
Division of Child Protection and Permanency2 (Division)
substantiated allegations of physical abuse stemming from a
January 14, 1998 altercation between D.M. and D., who was eleven-
years-old at the time. As a result, D.M. was arrested and charged
with aggravated assault, N.J.S.A. 2C:12-1(b)(1), and child
1
We use initials to protect privacy interests. See R. 1:38-3(e);
see also R. 5:12-4(b).
2
Pursuant to L. 2012, c. 16, effective June 29, 2012, the Division
of Youth and Family Services became known as the Division of Child
Protection and Permanency. Although the Division's earlier
actions occurred when the Division was still known as the Division
of Youth and Family Services, we refer to the agency under its
current name.
2 A-1139-15T4
endangerment, N.J.S.A. 2C:24-4(a), which charges were later no-
billed by the grand jury and subsequently expunged.
Due to defective service of the Division's January 23, 1998
notification of its findings, D.M., who had no prior or subsequent
history with the Division, did not learn of the substantiation
until fifteen years later, when her employer conducted a Child
Abuse Record Information (CARI) check.3 Thereafter, D.M. requested
an administrative hearing to contest the investigative findings.
Although her initial request for a hearing was denied as untimely,
by letter dated October 21, 2013, the denial was rescinded because
of the "service issue" and the matter was referred to the OAL.
On March 19, 2015, the OAL conducted a one-day hearing, during
which a then-retired Division caseworker testified on behalf of
the Division. D.M. and D. testified on D.M.'s behalf. Documents
were also admitted into evidence, including the Division's
investigative summary, the police report, D.'s medical examination
form, D.'s psychiatric evaluation, D.'s criminal history, D.M.'s
education and job performance records, and a letter terminating
D.M.'s employment.
At the hearing, the caseworker testified that the Paterson
Police Department referred D.'s case to the Division at 8:49 p.m.
3
Pursuant to N.J.S.A. 9:6-8.10a, child abuse background checks
are permissible in limited circumstances.
3 A-1139-15T4
on January 14, 1998, while D.M. was at the police station and
after D. had been transported by ambulance to the hospital. When
the caseworker questioned D.M. at the police station, she admitted
that she had "slapped" or "backhanded" D. "in the nose" after he
returned home from his after-school program one hour late and was
dismissive when she questioned him about his whereabouts.
Dissatisfied with his explanation, she followed him and "continued
to question him" until "he gave her a defiant look." D.M. told
the caseworker that, at that point, "[s]he lost control and began
hitting him[.]" She "beat him or hit him with a broom on his back
and his arms and . . . the broom broke[,]" after which "he ran out
of the house." One of the responding officers informed the
caseworker that the response team recovered a broom from D.M.'s
home that was "broken in three pieces." D.M. admitted to the
caseworker that because she worked with children, "she was worried
about losing her job" and agreed to have D. placed temporarily
with her sister rather than return to her home.
When the caseworker interviewed D. at the hospital, he
provided a similar account. He confirmed that D.M. "hit him in
the nose with her backhand[,] and it began to bleed." She followed
him into his room while continuing the argument and "grabbed him
by the face[.]" When "he pushed her hand away[,]" she "hit him
with a broom on his right arm, his left arm, [and] his back" and
4 A-1139-15T4
"he believed that she broke the broom." He then ran from the
house to the police station. The caseworker observed injuries on
D.'s "back" and "arm[,]" as well as "old injuries" on his legs,
which D. attributed to being "hit with an extension cord." D.
seemed relieved to learn that he would be placed with his aunt.
D.'s treating physician informed the caseworker that the
fresh "injuries on [D.'s] right arm, left arm[,] and back that
were swollen and several centimeters in length were consistent
with being hit with a straight . . . linear broom type . . .
object." D. also had dried blood in his left nostril, but no
swelling of the nose. The physician documented D.'s injuries,
noting that D. reported that his mother had hit him with a broom
handle and punched him in the nose. According to the caseworker,
the Division substantiated physical abuse by D.M. based on D.'s
statement and D.M.'s admission as well as the police and
physician's reports.
D.'s testimony at the hearing differed from his January 14,
1998 account. During the hearing, D. testified that when D.M.
confronted him on the stairs about returning home late, he "got
. . . frustrated and tried to move past her" but when "she got in
front of [him]" and "blocked" him, he "got angry" and "pushed
her." According to D., when he pushed her, "she went back and
[he] lost it[.]" D. continued,
5 A-1139-15T4
I had kicked her but then she tried to get me
off her and she hit me, like slapped me on the
head on the side of my face. That is when I
took off and I ran in the room and I went to
grab the broom. When I went to grab the broom
she was still behind me. She said something,
I don't recall exactly what she said but she
said something to me and I turned around and
I tried to hit her with the broom but I missed.
She grabbed the broom, we tussled for the
broom for a little bit and then the broom ended
up snapping. It was . . . an old broom in the
house. When the broom snapped I realized that
I was stuck so I ran out of the house.
. . . .
I ran out of the housing complex and I ran up
Summer Street, . . . .
I was looking for somewhere to hide, because
I figured I was in trouble. I thought she was
going to call the police . . . so I ran in the
backyard but as I ran in the backyard I
slipped. When I slipped I think it was like
a truck or a car back there and I hit the car
but when I hit it I just crawled up under
there and stayed there for a little bit.
D. explained that he sustained the injuries when he "slipped
and hit" the car with "the side of [his] face." He testified that
when he came out from under the car, he noticed that his "shirt
was ripped" and his "nose was bleeding." To avoid getting into
trouble, he went to the police station and told an officer that
his mother beat him with a broom and busted his nose. D was
removed, but returned to D.M.'s home about six months later without
any additional incidents.
6 A-1139-15T4
In 2013, D. wrote a statement at D.M.'s request recounting
what transpired on the night in question. Contrary to his hearing
testimony, D.'s written statement did not mention that D.M. slapped
him or that he swung the broom at D.M. When confronted with the
inconsistency at the hearing, D. explained that in his written
statement, he had altered his version of the events in order to
mitigate his conduct.
At the time of the hearing, D. was then twenty-eight years
old and incarcerated for attempted murder and weapons possession.
He testified that he had previously served two juvenile sentences
and was currently serving his third adult sentence. He also
testified that he started undergoing therapy in 1994 when he was
seven or eight-years-old. When questioned, he recalled admitting
to a psychiatrist that he heard "voices that [told him] to do bad
things."
In her account of what transpired on the night in question,
D.M. testified at the hearing that when D. arrived home late, she
repeatedly questioned him about his whereabouts, and D. suddenly
"lunged into [her]." According to D.M., she backed into a wall,
and D. kicked her, at which point she "slapped him." D.M. followed
D. into his bedroom while scolding him for putting his hand on
her. D.M. testified that "D. had the broom[,] and he started
swinging it at [her] like he wanted to hurt [her] with it." D.M.
7 A-1139-15T4
"grabbed the broom and [they] tussled" with it until "it broke[,]
and D. ran." D.M. denied hitting D. with the broom and denied
telling the police or the caseworker that she had done so. D.M.
also denied seeing any blood or other injuries on D. The next
time she saw D. was June 11, 1998, when the Division returned him
to her.
D.M. testified that she had worked in child care for twenty-
eight years. She has a Bachelor's Degree in Early Childhood
Education, a head teacher license, and a director's license, as
well as other licenses and certifications. On June 7, 2013, while
she was out on disability for breast cancer, her employer, the
Michael's Education Center, terminated her employment after a CARI
check revealed the 1998 substantiation for child abuse. According
to D.M., that was the first time she learned about the
substantiation.
D.M. testified that she has two daughters of her own, but she
and her husband adopted D. in 1990 when he was three-years-old
after the Division removed him from an abusive home. She enrolled
D. in the nursery at the school where she was a kindergarten
teacher. There were immediate complaints about his behavior that
continued with increasing severity as D. grew older. Ultimately,
D. was diagnosed with a "psychotic disorder" and prescribed
medication. His diagnosis was confirmed in 1999 when D. was deemed
8 A-1139-15T4
eligible for disability benefits following a Social Security
disability hearing. The medical evidence established that he had
a severe psychotic disorder, a conduct disorder, and a severe
cognitive disability. D. was classified and placed in a succession
of different special education programs until he was incarcerated
at the age of twelve.
After the hearing, an Administrative Law Judge (ALJ) issued
an initial decision on July 14, 2015, reversing the substantiation
of D.M.'s physical abuse of D. and ordering that D.M.'s name be
removed from the Central Registry. The ALJ made factual findings
consistent with the undisputed testimony at the hearing. As to
the disputed account of the January 14, 1998 altercation, the ALJ
rejected D.'s and D.M.'s hearing testimony. Instead, the ALJ
found that D.M. engaged in corporal punishment of D. "which caused
injuries and bruising to his nose, arms[,] and back" by "[striking]
D. on his nose with the back of her hand, causing his nose to
bleed" and "[striking] D. on his back and arms with the broom,
which broke." Nonetheless, the ALJ concluded that the Division
failed to prove by a preponderance of the evidence that D.M.'s
conduct constituted physical abuse as defined in N.J.S.A. 9:6-
8.21.
Analogizing the facts of the case to the facts in N.J. Div.
of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510 (App.
9 A-1139-15T4
Div. 2010), certif. dismissed as improvidently granted, 208 N.J.
355 (2011), the ALJ explained:
[D.M.] acknowledged that she had imposed the
discipline because she was overwhelmed and
under stress, and D., a child diagnosed with
a severe psychotic disorder, a conduct
disorder, and severe cognitive disability,
came home late again from an after-school
program, and she was worried. Like K.A., she
responded out of frustration with her child's
very long history of psychologically and
physically disruptive behavior. It is
undisputed that D. had been medicated since
the age of ten and was receiving ongoing
psychological treatment, but his behavior had
steadily worsened. D.'s behavior was
undisputedly rebellious and disrespectful.
Significantly, D.M. immediately
regretted the nature of the corrective action
she pursued, and the preponderance of the
credible evidence established that the
incident was isolated and aberrational to the
family. There is no evidence whatsoever that
D.M. is or was a danger to children in general,
indeed she went on to work for many years in
child care, rising to the level of director
of a child-care center. I am satisfied that
the record was devoid of any credible evidence
that D.M.'s behavior created a risk of future
harm, and through the lens of hindsight we
know that soon thereafter, D. embarked on a
course of conduct that has led to multiple and
continuous incarcerations, lasting to this
day. The injuries D. sustained did not
manifest credible evidence of a substantial
injury, imminent danger, a protracted injury
or excessive corporal punishment.
The Division took exception and sought review by the agency
head. On October 1, 2015, the Assistant Commissioner rejected the
10 A-1139-15T4
ALJ's recommendation of reversal and affirmed the substantiated
finding of abuse, concluding that D.M.'s actions constituted
excessive corporal punishment. The Assistant Commissioner
accepted the ALJ's factual findings. However, the Assistant
Commissioner distinguished K.A., supra, and instead found D.M.'s
case analogous to N.J. Div. of Youth & Family Servs. v. C.H., 414
N.J. Super. 472 (App. Div.), reaff'd on reconsid., 416 N.J. Super.
414 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011). The
Assistant Commissioner then applied the standard adopted in G.S.
v. N.J. Div. of Youth & Family Servs., 157 N.J. 161 (1999) and
N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 344
(2010) to the ALJ's findings of fact. After considering the
totality of the circumstances, the Assistant Commissioner
concluded that D.M. failed to exercise a minimum degree of care
because she disregarded the substantial probability that injury
would result from her intentional conduct.
The Assistant Commissioner determined that D.M.'s conduct
qualified as abuse under N.J.S.A. 9:6-8.21(c)(4) "as [D.M.] knew
or should have known that her actions of back handing and hitting
a child with a broom could potentially cause physical injury[,]
and [D.M.] disregarded the substantial likelihood that injury
could result." As the Assistant Commissioner noted, "D.M.'s
actions of hitting D. with her hand and a broom with such force
11 A-1139-15T4
to have caused that broom to break and injuries to result clearly
amounted to a failure to exercise a minimum degree of care."
Further, although "D.'s injuries were not life-threatening[,]
. . . he needed medical attention" and "[D.M.] was neither
remorseful nor did she have any justifiable reason for hitting
[D.]" The Assistant Commissioner acknowledged that "D. had a
history of behavioral issues and was diagnosed with severe
psychotic disorder, conduct disorder and severe cognitive
disability[,]" but found that this history did not justify D.M.'s
actions because "she had an option to resort to other passive
discipline methods; instead, she chose to follow D. into his room
after having backhanded him in the face and hit him with a broom
causing further injuries." The Assistant Commissioner concluded
that these circumstances were distinguishable from "a slap to a
face of a defiant teenager" countenanced in N.J. Div. of Youth &
Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011). Accordingly, the
Assistant Commissioner indicated that D.M.'s name should remain
on the Central Registry.
This appeal followed. On appeal, D.M. argues that the
Assistant Commissioner's decision should be reversed because it
is "arbitrary, capricious and unreasonable[.]" Specifically, D.M.
asserts that the Assistant Commissioner "failed to cite with
particularity any new or modified finding supported by competent
12 A-1139-15T4
and credible evidence in the record[,]" applied an improper
"standard in its analysis of this case[,]" and did not properly
account for the factors articulated in K.A., supra, 413 N.J. at
512. Further, D.M. seeks the removal of her name from the Central
Registry because she asserts the allegation of abuse "was not
properly substantiated."
Our role in reviewing the final decision of an administrative
agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). We
review administrative decisions to determine whether: (1) the
decision violates express or implied legislative policies; (2) is
unsupported by substantial evidence in the record; and (3) the
agency made a decision "that could not reasonably have been made
on a showing of the relevant factors." In re Proposed Quest Acad.
Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013)
(quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). While we
accord a "strong presumption of reasonableness" to an agency's
"exercise of statutorily delegated responsibility[,]" City of
Newark v. Nat. Res. Council, 82 N.J. 530, 539, cert. denied, 449
U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), we owe no
deference to an agency's interpretation or application of a
statute, if it is contrary to the language of the statute or
"'undermines the Legislature's intent.'" N.J. Div. of Youth &
13 A-1139-15T4
Family Servs. v. T.B., 207 N.J. 294, 302 (2011) (quoting Reilly
v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008)).
"Absent arbitrary, unreasonable or capricious action, the
agency's determination must be affirmed." C.H., supra, 414 N.J.
Super. at 480 (quoting G.S., supra, 157 N.J. at 170). "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). Where 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).
"We do not, however, simply 'rubber stamp the agency's
decision.'" N.J. Dep't of Children & Families' Inst. Abuse
Investigation Unit v. S.P., 402 N.J. Super. 255, 268 (App. Div.
2008) (quoting Paff v. N.J. Dep't of Labor, 392 N.J. Super. 334,
14 A-1139-15T4
340 (App. Div. 2007)). If "there is a clear showing that [the
agency's decision] is arbitrary, capricious, or unreasonable, or
that it lacks fair support in the record[,]" we are obliged to
provide a remedy. K.A., supra, 413 N.J. Super. at 509 (quoting
In re Herrmann, 192 N.J. 19, 27-28 (2007)). There is a
"particularly strong need for careful appellate review" where the
agency's factual findings are contrary to those of an ALJ. In re
Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001).
The Division is the agency charged with investigating child
abuse and neglect. The regulations in effect at the time of the
investigation required the Division to make a finding that the
allegations were either substantiated, not substantiated, or
unfounded once such an investigation was concluded. N.J.A.C.
10:129-3.3(a).4 A "substantiated" finding was defined as a finding
made "when the available information, as evaluated by the Division
representative, indicates that a child is an abused or neglected
child as defined in N.J.A.C. 10:133-1.3 because the child has been
harmed or placed at risk of harm by a parent[.]" Where the
4
Effective April 1, 2013, DCF redefined the investigative findings
for "substantiated" and "unfounded" and added two intermediary
investigative findings of "established" and "not established."
See 49 N.J.R. 357(a); 49 N.J.R. 2437(a); 49 N.J.R. 738(a) (April
1, 2013). Additionally, effective January 3, 2017, DCF recodified
its rules from Title 10 to Title 3A. See 49 N.J.R. 98(a) (Jan.
3, 2017). Where applicable, we cite the regulations extant in
1998 when the investigative findings were rendered.
15 A-1139-15T4
Division's investigation has "substantiated" child abuse or
neglect, the regulations allow for a hearing. N.J.A.C. 3A:5-
4.3(a)(2).
Under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to-
21, the ALJ conducts a hearing and issues a recommended report and
decision containing recommended findings of fact and conclusions
of law. N.J.S.A. 52:14B-10. The agency is the "primary
factfinder" and has the "ultimate authority, upon a review of the
record submitted by the ALJ[,] to adopt, reject or modify the
recommended report and decision of the ALJ." N.J. Dep't of Pub.
Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 507
(App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)). "[T]he 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); see
also N.J.A.C. 1:1-18.6(c). 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).
A child is considered abused or neglected when "[a parent or]
guardian fails to exercise a minimum degree of care when he or she
is aware of the dangers inherent in a situation and . . . recklessly
16 A-1139-15T4
creates a risk of serious injury to that child." G.S., supra, 157
N.J. at 181. Failure to exercise a minimum degree of care includes
"the infliction of excessive corporal punishment." N.J.S.A. 9:6-
8.21(c)(4). "Corporal punishment" is not prohibited, but Title
Nine does prohibit "excessive corporal punishment[.]" K.A.,
supra, 413 N.J. Super. at 510.
While excessive corporal punishment is not defined by the
statute, our case law has come to define "excessive" as "beyond
what is proper or reasonable." Id. at 511. Punishment will be
considered excessive where a parent's intentional act exposes a
child to the substantial probability that injury would result from
the parent's conduct. M.C. III, supra, 201 N.J. at 345. In this
regard, courts focus on "the harm suffered by the child, rather
than the mental state of the accused abuser[.]" K.A., supra, 413
N.J. Super. at 511. Although what constitutes excessive corporal
punishment to sustain a finding of abuse under N.J.S.A. 9:6-
8.21(c)(4) is "generally fact-sensitive" and "idiosyncratic[,]"
P.W.R., supra, 205 N.J. at 33, and the Division bears the burden
of proving a child is abused or neglected by a preponderance of
the evidence, N.J.S.A. 9:6-8.46(b), our Supreme Court has
implicitly found corporal punishment can be excessive where the
discipline results in bruises or marks. P.W.R., supra, 205 N.J.
at 36-37. Further, N.J.A.C. 10:129-2.2(a) lists bruising and
17 A-1139-15T4
abrasions as injuries that may constitute abuse. See also P.W.R.,
supra, 205 N.J. at 36 (finding that "[a] slap of the face of a
teenager as a form of discipline — with no resulting bruising or
marks — does not constitute excessive corporal punishment"
(internal quotation marks omitted)).
As we recently observed:
[E]xcessive corporal punishment was found
where a mother used a belt to hit her six-
year-old son and left visible welts. N.J.
Div. of Youth & Family Servs. v. B.H., 391
N.J. Super. 322, 340 [(App. Div.), certif.
denied, 192 N.J. 296 (2007)]. Similarly, a
mother inflicted excessive corporal
punishment by beating her daughter with a
paddle in the face, arms, and legs. [C.H.,
supra, 414 N.J. Super. at 476]. In both B.H.
and C.H., our conclusions were based on the
use of an instrument to hit the child with
such force that visible marks were left, the
unreasonable and disproportionate parental
response, and the fact that the incidents were
not isolated but part of a pattern of physical
punishment. See B.H., supra, 391 N.J. Super.
at 338-40; C.H., supra, 414 N.J. Super. at
481.
[N.J. Div. of Youth & Family Servs. v. S.H.,
439 N.J. Super. 137, 146-47 (App. Div.),
certif. denied, 222 N.J. 16 (2015).]
Nonetheless, a single occurrence of corporal punishment may
be deemed excessive if medical intervention is necessary and the
injury was foreseeable. K.A., supra, 413 N.J. Super. 511. For
example, in M.C. III, supra, 201 N.J. at 335, a two-hundred pound
father chased his two teenage children, caught and grabbed them,
18 A-1139-15T4
and all three ended up on the floor. Both children were injured.
One child sustained a bruised and swollen hand, while the other
had rib tenderness and an abrasion behind the ear. Id. at 335.
Our Supreme Court held that, although the father "may not have
intended to harm his children, his actions were deliberate" and
constituted abuse because he "intentionally grabbed the children
and disregarded the substantial probability that injury would
result from his conduct." Id. at 345.
In K.A., we reversed a finding of abuse where a mother punched
her eight-year-old, autistic daughter on the shoulder four to five
times with a closed fist, leaving bruises; however, the
circumstances of that case were unique. K.A., supra, 413 N.J.
Super. at 505-06. After examining the reasons underlying the
mother's conduct, "the isolation of the incident[,]" and "the
trying circumstances which [the mother] was undergoing due to [the
child's] psychological disorder," we determined that the mother's
conduct was aberrational and excusable under the circumstances.
Id. at 512. We noted that the child was unwilling to follow verbal
instructions or adhere to passive means of discipline such as a
time-out and
[the mother] was alone, without support from
either her spouse/co-parent or from other
members of her extended family, such as an
experienced mother or aunt. Out of sheer
frustration, or through an ill-advised
19 A-1139-15T4
impulse, she struck her child five times.
These blows, though undoubtedly painful, did
not cause the child any permanent harm, did
not require medical intervention of any kind,
and were not part of a pattern of abuse.
[Ibid.]
In addition, we noted that the mother accepted full responsibility
for her actions and willingly engaged in Division services. Ibid.Applying these principles, we conclude that the final agency
decision here is not arbitrary or capricious and 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 ALJ's
factual findings. We concur with the Assistant Commissioner's
determination that back-handing D. with sufficient force to cause
a nose bleed and striking D. with a broom with enough force to
break the broom and injure D. amounted to excessive corporal
punishment as contemplated under N.J.S.A. 9:6-8.21(c)(4). We
acknowledge, as did the Assistant Commissioner, that D.'s history
of psychiatric and behavioral disorders presented challenges.
Moreover, some of the mitigating circumstances that were present
in K.A. exist here. However, "K.A. is readily distinguishable
from the facts herein, primarily due to the nature and extent of
the injuries to [D.] and the instrumentalit[y] used to inflict
them." S.H., supra, 439 N.J. Super. at 146 (finding that corporal
20 A-1139-15T4
punishment was excessive where a mother used a golf club and her
teeth on her teenager, causing a contusion and bite marks). Unlike
K.A., D.M. used a broom as well as her hand to discipline D., and
the force she used lacerated D.'s skin, prompting the police to
send him to the hospital for medical intervention.
Further, we have stated that
[w]e do not read K.A. to suggest that the test
for determining excessive corporal punishment
should be any different when the child has a
disability. While these children may be more
difficult to control, present additional
challenges to a family, and be unresponsive
to traditional forms of discipline, they are
entitled to the same protection under Title
Nine as non-disabled children. We read K.A.
to hold only that the underlying behavior of
a child, with or without a disability, can be
a relevant factor among the totality of
circumstances in assessing the reasonableness
of the parent's response to the child's
outburst.
[S.H., supra, 439 N.J. Super. at 149-50.]
We recognize and, indeed, commend D.M. for her exemplary
career in child care and the fact that no incidents were reported
subsequent to the abusive conduct in question. Even so, a parent'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
N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166,
189 (2015). Although we are very mindful of the negative
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consequences to D.M. 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.
Affirmed.
22 A-1139-15T4