C.A. VS. DEPARTMENT OF HUMAN SERVICES (OFFICE OF PROGRAM INTEGRITY AND ACCOUNTABILITY) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3995-17T2
C.A.,
Petitioner-Appellant,
v.
DEPARTMENT OF
HUMAN SERVICES,
Respondent-Respondent.
_____________________________
Argued November 7, 2019 – Decided January 7, 2020
Before Judges Koblitz, Whipple and Gooden Brown.
On appeal from the New Jersey Department of Human
Services, Office of Program Integrity and
Accountability.
Barbara E. Ungar telephonically argued the cause for
appellant.
Marie Linette Soueid, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Marie Linette Soueid, on
the brief).
PER CURIAM
C.A. appeals from a Final Agency Decision of the Department of Human
Services (DHS) ordering the placement of his name on the Central Registry of
Offenders against Individuals with Developmental Disabilities (Central
Registry). We affirm.
We discern the following facts from the record, which includes video
footage of the incident. C.A. worked for Benchmark Human Services (BHS) in
Branchburg, a group home for developmentally disabled persons. R.F. was a
developmentally disabled man, diagnosed with impulse control disorder and
seizures, who resided in the BHS group home and received services from the
New Jersey Division of Developmental Disabilities (DDD). R.F. suffered from
dysphagia, meaning he had difficulty swallowing and was at a high risk for
choking.
R.F. had an individual habilitation plan (IHP) which called for a "chopped
diet" and required he be given reminders to slow down when eating. R.F. also
had to have one-on-one supervision when he was out in the community and
could not be left alone in a vehicle. Additionally, R.F. was required to be within
arm's length of his supervisor where food was present. R.F.'s IHP also required
his supervisor to call 911 in an emergency.
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On February 5, 2014, C.A. and another staff member, V.E., took R.F. and
two other residents to ShopRite to purchase toiletries for the group home. Once
at ShopRite, V.E. suggested C.A. remain in the car with R.F. and another
resident. However, C.A. decided they would all have to go into the store
together, since V.E. had not yet completed enough training to be left alone with
the residents. While inside, R.F. tried to grab a cake in the bakery section, and
C.A. stopped him. However, when C.A. was out of arm's reach of R.F., R.F.
was able to access the cake, shoved it in his mouth, and began pacing and
walking in circles before collapsing on the floor. V.E. then ran to get water,
which he and C.A. tried to give R.F. to no avail. C.A. did not render first aid to
R.F., nor did he call 911. Another individual in the grocery store called 911,
and according to a responding police officer, C.A. was evasive and lied to them
numerous times about his connection to R.F. While the responding officer and
others administered CPR, C.A. spoke to his supervisor on the phone, who
instructed him to accompany R.F. to the hospital. R.F. later died. Following
the incident, C.A. was questioned by police and gave written statements to the
DDD and BHS. He was subsequently fired from BHS. C.A. was charged with
endangering the welfare of an incompetent person, N.J.S.A. 2C:24-7, a
disorderly person's offense, but was acquitted.
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After an investigation, DHS determined that C.A. had neglected R.F. by
failing to provide one-on-one supervision, as well as by failing to render any aid
or call 911, which resulted in "major injuries from choking." DHS advised C.A.
by letter that his name would be placed on the Central Registry, authorized by
N.J.S.A. 30:6D-77, and advised him of his right to appeal.
C.A. appealed, and the matter was transmitted to the Office of
Administrative Law. A closed hearing was held before an Administrative Law
Judge (ALJ) to determine whether DHS acted reasonably in placing C.A. on the
Central Registry. DHS presented testimony from its investigator, Robert
Brozon, and the two responding Branchburg Police Officers. C.A. did not testify
and offered no witnesses.
The ALJ issued a decision on October 30, 2017, finding that C.A.
"exhibited seriously poor judgment which created a substantial and unjustifiable
risk of harm to R.F." C.A. filed exceptions to this determination with the DHS,
and DHS filed responses.
DHS upheld the ALJ's finding of neglect. DHS determined the ALJ
reasonably found that C.A. had neglected R.F., and that C.A., through his actions
on February 5, 2014, "was grossly negligent and reckless in his conscious
disregard of the danger in his failure to provide sufficient care" to R.F. Due to
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C.A.'s grossly negligent and reckless neglect of R.F., DHS concluded C.A.
belonged on the Central Registry, and issued its final agency decision on March
28, 2018. This appeal followed.
"[We] have 'a limited role' in the review of [administrative agency]
decisions." In re Stallworth, 208 N.J. 182, 194 (2011). (quoting Henry v.
Rahway State Prison, 81 N.J. 571, 579 (1980)). "[A] 'strong presumption of
reasonableness attaches to [an agency decision].'" In re Carroll, 339 N.J. Super.
429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App.
Div. 1993)). "In order to reverse an agency's judgment, [we] must find the
agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not
supported by substantial credible evidence in the record as a whole.'"
Stallworth, 208 N.J. at 194 (quoting Henry, 81 N.J. at 579); In re Proposed Quest
Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013).
In determining whether agency action is arbitrary,
capricious, or unreasonable, [we] must examine:
(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
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reasonably have been made on a showing
of the relevant factors.
[Stallworth, 208 N.J. at 194 (quoting In re Carter, 191
N.J. 474, 482-83 (2007)).]
C.A. asserts his actions did not constitute gross negligence or
recklessness, and that he thus should be removed from the Central Registry. He
argues the incident was not his fault, and that his employer, BHS, bears
responsibility. C.A. also argues the video shows he acted properly in dealing
with R.F., noting he stayed with R.F., attempted to sit him up, gave him water,
and deferred to the treatment of trained medical staff when they arrived. For
these reasons, C.A. asserts the ALJ's determination of substantial acts of neglect
was not based on substantial evidence in the record. Additionally, C.A. contends
that hospital records and a DHS incident report suggest R.F. died from seizure-
related complications, which should have precluded the ALJ from considering
R.F.'s death as a factor in rendering her decision finding substantial acts of
neglect on the part of C.A. Further, C.A. argues he took the proper steps, and
remaining with R.F. was the appropriate response given his basic level of
training when dealing with a complicated medical scenario.
C.A. also argues the ALJ did not view the video evidence in its entirety
and allowed Investigator Brozon to give improper lay opinion testimony.
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Additionally, C.A. suggests the ALJ did not give proper consideration to C.A.'s
statements. We reject all of C.A.'s arguments.
Under the Central Registry Act, DHS conducts investigations into
reported allegations of abuse, neglect, and exploitation of developmentally
disabled individuals. N.J.S.A. 30:6D-76. Neglect is defined as "willfully failing
to provide proper and sufficient food, clothing, maintenance, medical care, or a
clean and proper home; or failing to do or permit to be done any act necessary
for the well-being of an individual with a developmental disability." N.J.S.A.
30:6D-74; see also N.J.A.C. 10:44D-1.2. Neglect can occur where a caretaker
"place[s] [an] individual [with a developmental disability] in harm's way."
N.J.A.C. 10:44D-4.1(c).
A caregiver is placed on the Central Registry when he or she "acted with
gross negligence, recklessness, or in a pattern of behavior that causes or
potentially causes harm to an individual with a developmental disability."
N.J.S.A. 30:6D-77(b)(2). A caregiver acts with "gross negligence" by acting
with a "conscious, voluntary act or omission in reckless disregard of a duty and
of the consequences to another party." N.J.A.C. 10:44D-4.1(c)(1). Acting with
"recklessness" is the "creation of a substantial and unjustifiable risk of harm to
others by a conscious disregard for that risk." N.J.A.C. 10:44D-4.1(c)(2).
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Whether particular conduct constitutes gross negligence or reckless behavior
under N.J.S.A. 30:6D-77(b)(2) and N.J.A.C. 10:44D-4.1 is a question of law.
N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App.
Div. 2011).
The focus of the law is on the conduct of the caregiver, not the effect on
the victim. N.J.S.A. 30:6D-74; N.J.S.A. 30:6D-77(b)(2); N.J.A.C. 10:44D-1.2.
Therefore, the issue here is whether C.A. failed to provide adequate care to R.F.
or ensure his well-being. See N.J.S.A. 30:6D-74; N.J.A.C. 10:44D-1.2;
N.J.A.C. 10:44D-4.1(c)(1); and N.J.A.C. 10:44D-4.1(c)(2). Our review of the
record demonstrates there is adequate support for the conclusion he did not.
R.F.'s IHP stated he could not be left alone in a vehicle, required one-on-
one supervision in the community, and arms-length supervision where food was
present. Staff were required to call 911 in the event of a life-threatening
emergency. BHS defines a life threatening emergency as one where a prudent
person could reasonably believe immediate intervention was necessary; these
circumstances include unresponsiveness to pain or stimuli, loss of
consciousness, confusion, or difficulty breathing. C.A. was familiar with R.F.'s
IHP and other policies of BHS, and he was trained in CPR and first aid.
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C.A. went with R.F. to the grocery store with a coworker and three BHS
residents and left the van with R.F. and another resident, which was in violation
of R.F.'s one-on-one supervision requirement. C.A. was not supervising R.F.
when he ate the cake, nor was he within arm's reach of R.F. as required by R.F.'s
IHP. C.A. did not give CPR, remove anything from R.F.'s mouth, or notify
anyone about R.F.'s disabilities. Rather, C.A. stood watching, failed to give
responding officers information about R.F.'s disabilities, and was evasive when
responding officers asked him questions about R.F. C.A. was not the person
who called 911, although he did call the group home to notify them. It is
undisputed that C.A. was aware of R.F.'s condition and need for supervision
around food.
The findings of fact made by the ALJ were amply supported by the
evidence presented at the hearing, including the video, testimony, accompanying
investigative reports, and police reports. Additionally, the ALJ heard testimony
from Investigator Brozon and two responding officers from the Branchburg
Police Department.
C.A. does not dispute any of these facts specifically, but rather generally
registers dissatisfaction with the decision of the ALJ and DHS. He contends the
ALJ may not have viewed the ShopRite surveillance video in its entirety but
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relied instead on the portions shown during Investigator Brozon's testimony.
C.A. also argues the ALJ should not have considered Investigator Brozon's
testimony because he was not present at the incident.
Our Rules of Evidence for court proceedings do not strictly apply to
administrative hearings. See N.J.S.A. 52:14B-10; N.J.A.C. 1:1-15.1 to -15.12;
see also Delguidice v. New Jersey Racing Comm'n, 100 N.J. 79, 84 (1985).
Nonetheless, evidence rulings in administrative matters "shall be made to
promote fundamental principles of fairness and justice and to aid in the
ascertainment of truth." N.J.A.C. 1:1-15.1(b). The administrative tribunal is
thus empowered to "exclude any evidence if its probative value is substantially
outweighed by the risk that its admission will . . . [c]reate substantial danger of
undue prejudice or confusion." N.J.A.C. 1:1-15.1(c)(2).
In his testimony, Investigator Brozon described the surveillance video in
his capacity as a DHS investigator who substantiated the claim of neglect. The
video evidence was presented as evidence on which his investigation relied.
We reject C.A.'s attempt to shift blame to BHS for inadequate training.
The ALJ's finding of gross negligence was not predicated upon C.A.'s failure to
provide specialized care or treatment to R.F., but was based on C.A.'s failure to
provide adequate supervision in line with R.F.'s IHP, as well as failure to render
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aid after R.F. collapsed to the ground. For these reasons, the decision of DHS
to list C.A. on the Central Registry was supported by clear evidence on the
record.
Placement on the Central Registry gives rise to a significant liberty
interest, and we agree C.A. was entitled to effective assistance of counsel
consistent with our decision in New Jersey Division of Youth & Family Services
v. V.M., 408 N.J. Super 222, 237-238 (App. Div. 2009). However, C.A.'s
attorney's alleged deficiencies, including failure to call witnesses, including
C.A., not engaging an expert to testify, and stipulating or failing to object to
evidence submitted at the hearing, do not demonstrate C.A. was actually
prejudiced in his case. C.A. did not explain what precise exculpatory evidence
was not presented.
The Strickland v. Washington Court announced a simple, two-part test for
evaluating claims of "actual ineffectiveness" of counsel:
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the
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conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
[466 U.S. 668, 687 (1984).]
C.A. has failed to demonstrate his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed" him by the Sixth Amendment.
Ibid.
Affirmed.
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