DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY VS. A.I.(DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILDPROTECTION AND PERMANENCY)(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NOT FOR PUBLICATION WITHOUT THE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-4838-14T4
DEPARTMENT OF CHILDREN AND
FAMILIES, DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Petitioner-Respondent,
v.
A.I.,
Respondent-Appellant.
___________________________
Submitted April 25, 2017 – Decided May 11, 2017
Before Judges Yannotti and Gilson.
On appeal from the Department of Children and
Families, Division of Child Protection and
Permanency, Docket No. AHU 10-1080.
Caruso Smith Picini, P.C., attorneys for
appellant (Steven J. Kaflowitz, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Salima
E. Burke, Deputy Attorney General, on the
brief).
PER CURIAM
A father appeals from a final administrative determination
by the Assistant Commissioner of the Division of Child Protection
and Permanency (the Division) that he abused his seven-year-old
son by striking the child on his buttocks with an electrical cord.
We reverse because there was insufficient evidence in the record
to support the factual findings made by the Assistant Commissioner.
I.
A.I. lived with his wife and five sons, including his youngest
son, C.I. 1 On May 18, 2010, the Division received a referral from
a school nurse. C.I. had informed the nurse that his father struck
him on his buttocks and it was painful for him to sit. A Division
investigator interviewed C.I. at his school. The child explained
that earlier in the morning, he was drinking juice from a box in
the kitchen. His father struck him on his buttocks with a strap
because he was concerned that the child might spill juice on his
schoolbooks. C.I. also explained that the striking hurt. He did
not, however, complain of the injury to his father that morning.
The Division investigator photographed C.I.'s bruise.
During a subsequent interview with a detective from the Bergen
County Prosecutor's Office (BCPO), C.I. elaborated that his father
struck him with a gray electrical cord. The child also told the
1 We use initials to protect privacy interests. See R. 1:38-3(e);
see also R. 5:12-4(b).
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detective that his father had hit him five or ten times over his
clothes. He explained that his father had used corporal punishment
in the past. C.I. did not receive any medical treatment for his
bruise.
A.I. admitted to the detective that he had hit C.I. that
morning because the child was going to spill juice over his
schoolbooks. Initially, A.I. told the detective that he had used
a wooden spoon, but later he stated that it was a gray electrical
cord. A.I. was not criminally charged.
The Division subsequently substantiated A.I. for physical
abuse. A.I. requested an administrative hearing to contest the
investigation finding. Initially, the Division entered a final
order upholding the substantiation of abuse on a summary
disposition. A.I. filed an appeal to our court. The parties then
agreed to submit the matter to a contested hearing and the appeal
was withdrawn.
The matter was referred to the Office of Administrative Law
(OAL) and a one-day hearing was conducted on January 8, 2015. At
the hearing, a detective from BCPO and a Division caseworker
testified on behalf of the Division. A.I. and one of his other
sons testified on A.I.'s behalf. The Division also submitted
documents into evidence, including a photograph of C.I.'s bruise,
reports prepared by the Division investigator and the detective,
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and video recordings of the detective's interview with C.I. and
A.I.
At the hearing, the detective testified that he did not recall
how many times A.I. struck the child and whether similar incidents
have occurred in the past. The detective further testified that
the bruise on C.I.'s buttocks was not a deep wound and "it [was
not] anything [he] was overly concerned with."
The Division caseworker testified that she oversaw the
investigation regarding A.I., but did not have any direct
interactions with A.I. and his family. Consequently, all of her
testimony was based on the documents and reports she had reviewed.
She acknowledged that she did not personally observe the bruise
on C.I.'s buttocks. Instead, she reviewed the photograph that was
taken by the Division investigator. Based on that picture, she
believed that the bruise was severe.
A.I. testified that he had "whacked" the child with his hand
over the child's clothes. He stated that he admitted to using a
gray electrical cord because he wanted to be consistent with his
son's statement. A.I. further denied hitting C.I. in the past.
A.I.'s other son testified that his father never hit him or any
of his brothers.
After hearing the testimony, an Administrative Law Judge
(ALJ) found that the Division had not carried its burden to
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establish that A.I. had abused C.I. Although the ALJ found that
A.I. struck the child with a gray electrical cord on the buttocks
over his clothes, he also found that the child's injury did not
cause swelling or welts and did not require medical attention.
After reviewing the photograph of the bruise, the ALJ concluded
that the bruise was minor and did not appear to be particularly
serious. The ALJ also found that this incident was singular in
occurrence and there were no prior instances of corporal
punishment. Thus, the ALJ concluded that the Division did not
prove by a preponderance of the credible evidence that A.I. used
excessive corporal punishment.
The Division administratively appealed and the Assistant
Commissioner of the Division, acting as the agency head, rejected
the ALJ's findings and conclusions. The Assistant Commissioner
made several factual findings that differed from the ALJ.
Specifically, the Assistant Commissioner found that "A.I. severely
beat his young son and the evidence in the record establishe[d]
the impairment of C.I.'s physical condition." Thus, the Assistant
Commissioner found that A.I. hit the child with excessive force
and A.I.'s act of striking C.I. multiple times with an electrical
cord was not a reasonable reaction to the child's conduct. The
Assistant Commissioner also found that there had been a pattern
of corporal punishment and A.I.'s use of corporal punishment
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against C.I. was not an isolated incident. The Assistant
Commissioner then affirmed the substantiation of abuse and
directed that A.I.'s name be placed in the child abuse registry,
pursuant to N.J.S.A. 9:6-8.11.
II.
A.I. now appeals the final agency determination and makes
three arguments: (1) the Assistant Commissioner erred in finding
abuse; (2) the Assistant Commissioner erred in modifying the
factual findings of the ALJ; and (3) the Assistant Commissioner
erred in considering prior instances of corporal punishment.
Our role in reviewing the final decision of an administrative
agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). "Absent
arbitrary, unreasonable or capricious action, the agency's
determination must be affirmed." N.J. Div. of Youth & Family
Servs. v. C.H., 414 N.J. Super. 472, 480 (App. Div. 2010) (quoting
G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999)), certif.
denied, 207 N.J. 188 (2011).
"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,
340 (App. Div. 2007)). If "there is a clear showing that [the
agency's decision] is arbitrary, capricious, or unreasonable, or
6 A-4838-14T4
that it lacks fair support in the record" we are obliged to provide
a remedy. N.J. Div. of Youth & Families Servs. v. K.A., 413 N.J.
Super. 504, 509 (App. Div. 2010) (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 Division's regulations allow for four
types of findings. See N.J.A.C. 3A:10-7.3(c)(1) to (4). Two of
these, "substantiated" and "established," require finding of child
abuse or neglect under N.J.S.A. 9:6-8.21(c). N.J.A.C. 3A:10-
7.3(c)(1) and (2). The other two findings, "not substantiated"
and "unfounded," are made when the investigation does not indicate
child abuse or neglect under the statute. N.J.A.C. 3A:10-7.3(c)(3)
and (4).
The "substantiated" finding requires that
the preponderance of the evidence indicates
that a child is an 'abused or neglected child'
as defined in N.J.S.A. 9:6-8.21 and either the
investigation indicates the existence of any
of the circumstances in N.J.A.C. 3A:10-7.4 or
substantiation is warranted based on
consideration of the aggravating and
mitigating factors listed in N.J.A.C. 3A:10-
7.5.
[N.J.A.C. 3A:10-7.3(c)(1).]
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Where the 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)). "The 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).
Corporal punishment constitutes "abuse" under N.J.S.A. 9:6-
8.21(c)(4)(b) if it is excessive. The statute provides that a
child is "abused or neglected" when his
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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 . . . 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[.]
[N.J.S.A. 9:6-8.21(c)(4).]
What constitutes excessive corporal punishment is "fact-
sensitive." N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 33 (2011). 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).
Here, the Assistant Commissioner's finding of excessive
corporal punishment was based on two factual findings. First,
that C.I.'s injury was severe, and, second, that A.I. had engaged
in a pattern of excessive corporal punishment. There was, however,
insufficient evidence in the record to support either of those
findings.
During the hearing, neither the detective nor the Division
caseworker testified as to how many times C.I. had been struck and
whether similar incidents have occurred in the past. Specifically,
the detective stated that he could not recall the details of the
investigation and the Division worker did not directly interact
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with A.I. and his family. Instead, the Division relied on
documents submitted into evidence, including a video recording of
C.I.'s interview with the detective.
During that interview, C.I. told the detective his father hit
him five or ten times and he had used corporal punishment in the
past. "[P]revious statements made by the child relating to any
allegations of abuse or neglect shall be admissible in evidence;
provided, however, that no such statement, if uncorroborated,
shall be sufficient to make a fact finding of abuse or neglect."
N.J.S.A. 9:6-8.46(a)(4). Here, there was no corroborating
evidence to support C.I.'s statement to the detective.
During the hearing, the detective testified that C.I.'s
bruise was not a deep wound and he was not overly concerned about
the bruise. Indeed, A.I. was not criminally charged. The Division
caseworker who testified at the hearing did not observe C.I.'s
bruise. Instead, she based her testimony on a photograph taken
by another investigator. While the Division caseworker who
testified opined that C.I.'s injury was severe, that testimony was
not supported by first-hand knowledge or independent evidence.
Moreover, the Division did not submit any medical record because
C.I. did not receive any medical care for his bruise. As such,
there was no credible evidence in the record establishing that
C.I.'s injury was severe.
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In addition, the detective did not testify to whether there
were previous instances of corporal punishment because he could
not recall the details of the investigation. The Division
caseworker testified that based on a report prepared by a Division
investigator, A.I.'s other children said that A.I. had struck them
with the same electrical cord in the past. In an administrative
proceeding, hearsay evidence is generally admissible. N.J.R.E.
101(a)(3); N.J.A.C. 1:1-15.5(a). "Notwithstanding the
admissibility of hearsay evidence, some legally competent evidence
must exist to support each ultimate finding of fact to an extent
sufficient to provide assurance of reliability and to avoid the
fact or appearance of arbitrariness." N.J.A.C. 1:1-15.5(b).
Here, besides the hearsay statements made by A.I.'s other
children, there is no other evidence supporting the finding that
A.I. had used corporal punishment in the past. Further, at the
hearing, one of A.I.'s other sons testified that there were no
prior instances of corporal punishment. A.I. also denied that he
had hit any of his children in the past. As such, there was
insufficient evidence supporting the finding that there had been
a pattern of corporal punishment.
In summary, we have a record where the ALJ made factual
findings and concluded that the Division had not carried its burden
to substantiate abuse. The Assistant Commissioner rejected the
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ALJ's factual findings, but found facts that were not supported
by credible evidence in the record. Thus, a preponderance of the
evidence in the record does not support a finding of abuse.
Reversed.
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