NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1337-11T1
NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES,
and THE NEW JERSEY CIVIL
January 23, 2013
Argued October 2, 2012 Decided
Before Judges Yannotti and Hoffman.
On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 10-1407, and the New Jersey Civil Service Commission, Docket No. 2011-2510.
Dwaine Williamson argued the cause for appellant (The Williamson Law Firm, L.L.C., attorneys; Mr. Williamson, on the brief).
Jennifer V. Hoff, Deputy Attorney General, argued the cause for respondents (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Hoff and Brandon Hawkins, Deputy Attorney General, on the brief).
T.K. appeals from a final decision of the Civil Service Commission (Commission), which upheld his removal as a senior youth worker at the Ewing Residential Treatment Center (the Center) in the Department of Children and Families (Department), and a final decision of the Acting Director of the Division of Youth and Family Services (Division)1, finding that T.K. abused a fourteen-year-old resident of the Center, contrary to N.J.S.A. 9:6-8.21(c). We affirm.
On August 18, 2010, the Department received a report that T.K. had engaged in a physical altercation with J.S., one of the Center's residents, and J.S. had sustained a four-inch scratch to his neck during the incident. The Division's Conflict Investigations Unit (DCIU) conducted an investigation and issued a report concluding that the allegations of abuse were substantiated.
Among other things, the DCIU found that T.K.'s use of force was unjustified, inappropriate and excessive and placed J.S. at substantial risk of injury. T.K. challenged the DCIU's findings and requested an administrative hearing. The matter was referred to the Office of Administrative Law (OAL) for a hearing.
On September 14, 2010, the Department issued a preliminary notice of disciplinary action, charging T.K. with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause for discipline, N.J.A.C. 4A:2-2.3(a)(11). After a departmental hearing, a final notice of disciplinary action was issued, removing T.K. from employment as of September 10, 2010. T.K. appealed to the Commission from the disciplinary action and requested an administrative hearing. The Commission referred the matter to the OAL for a hearing.
The cases were consolidated and an Administrative Law Judge (ALJ) conducted a hearing on the appeals. At the hearing, J.S. testified that on August 18, 2010, he was residing in Cottage 1 at the Center with approximately seven other residents. J.S. said that he had a problem with bed-wetting. At approximately 5:30 a.m., T.K. woke J.S. and told him to use the restroom. Staff members typically checked with J.S. at regular intervals during the night to determine if he needed to use the restroom. J.S. told T.K. he did not have to relieve himself. T.K. insisted that J.S. go to the restroom. He removed J.S.'s blanket and shook his leg.
J.S. stood up and told T.K. to get out of his room. He started to put on his sneakers and tried to leave the room. According to J.S., T.K. grabbed his shirt and pushed him onto the bed. J.S. felt T.K.'s nails digging into his neck. He attempted to get T.K. off of him. J.S. said that it felt as if T.K. was holding him down by the neck. J.S. repeatedly told T.K. to "get off" of him.
Another worker, Jerome Neal (Neal), testified that he was working the 11:30 p.m. to 8:00 a.m. shift at the Center. He was in the control room between Cottages 1 and 2 and heard T.K. performing a routine check of the rooms. Neal heard T.K. tell J.S. to use the restroom. T.K. repeatedly asked J.S. whether he had to use the restroom. According to Neal, J.S. cursed at T.K. and told him to get out of his room.
Neal testified that T.K. asked J.S. where he was going, and J.S. replied that T.K should not worry about it. Thereafter, Neal heard J.S. ask T.K., "Why are you choking me?" Neal ran to the room and upon his arrival there, he observed T.S. sitting on J.S. Neal said that J.S. appeared to be pushing T.K. up, and T.K. appeared to be grabbing J.S.'s shirt.
Neal said that T.K.'s actions were inconsistent with the Division's crisis management protocol, and T.K. should have waited for assistance before trying to restrain J.S. Neal tried to separate J.S. from T.K. He said he observed what appeared to be fresh, open wounds on J.S.'s neck.
On August 18, 2010, Jannie Franicevich (Franicevich) was working the overnight shift as a senior youth worker in Cottage 2. Franicevich testified that at about 5:00 a.m., she heard T.K. tell J.S. to get up. J.S. cursed at T.K. and told him he did not need to use the restroom. T.K. remained in the doorway to J.S.'s room, and he cursed at J.S. Franicevich said that the Center's protocol was to have workers wake J.S. at times during the night and ask him whether he had to use the restroom. She stated that it was part of J.S.'s "treatment plan."
Franicevich further testified that she observed T.K. enter J.S.'s room and close the door. She heard yelling and tussling. Franicevich remained in the control room, while Neal went to J.S.'s room. Later, Neal told Franicevich to bring a first-aid kit to J.S.'s room. She had been trained in emergency care and observed long scratches on J.S.'s neck, collarbone and knuckles. Franicevich believed the scratches were fresh. She administered first-aid to J.S. She also observed a nick on the side of his cheek.
T.K. testified that on August 18, 2010, at about 5:00 a.m., he attempted to wake J.S., as part of the treatment plan to deal with J.S.'s bed-wetting. T.K. stood at the door and told J.S. to go to the restroom but J.S. refused. According to T.K., J.S. started to put on his sneakers. T.K. said that J.S. grabbed him by the shirt, and pushed him on the bed. T.K. struggled to break loose but J.S. held him tightly. T.K. further testified that, as a result of a prior injury, he has an iron rod on his left side from his hip down to his ankle. T.K. stated that he was caught off-balance in the struggle.
T.K. acknowledged that a youth worker is not permitted to touch a resident's neck but he denied choking J.S. He recalled touching J.S.'s chest and stomach area, while trying to push J.S. off of him. T.K. did not recall causing any injury to J.S. but said he was not sure whether he had injured J.S. during the incident.
The ALJ subsequently issued an initial decision in which she found that J.S.'s version of the incident was more credible than the version that T.K. had provided. The ALJ stated that J.S.'s demeanor was calm and he had been able to relate the facts of the incident in detail. The ALJ also stated that J.S.'s version of the events was corroborated by Neal and Franicevich, as well as J.S.'s statement to the DCIU investigator.
The ALJ explained why she did not find T.K.'s testimony to be credible. The ALJ wrote that she did not credit T.K.'s assertion that J.S. grabbed him and threw him on the bed. The ALJ noted that Neal, the only eyewitness to part of the altercation, testified that he entered J.S.'s room and observed T.K. on top of J.S. The ALJ found that Neal's testimony was "truthful, forthright, detailed and consistent." The ALJ stated, "T.K. has a clear motive to deny the allegations and his claim that J.S. was the aggressor does not hang together."
The ALJ concluded that the Division had established J.S. was an abused or neglected child, as defined in N.J.S.A. 9:6-8.21(c)(4), and T.K. was responsible for the abuse. The ALJ wrote:
Based on the credible testimony, I am convinced that J.S. was the aggressor in the physical contact in the bedroom. T.K.'s response to J.S.'s attempt to leave the room was excessive. J.S. was not in danger of physically harming himself by walking into the hallway and T.K. could have called for assistance if J.S. began to try to harm himself, [or] someone else . . . . Otherwise, any physical restraint of J.S. was premature. Moreover, while T.K. does not recall intentionally choking or scratching J.S.'s neck, the wounds speak for themselves. J.S. credibly testified that he felt pressure around his neck area and felt something scratch him during the struggle, while he was down on his back. T.K. was the only person in physical contact with J.S. during that time. It is undisputed that at that point, both individuals had a tight grip on one another and were struggling. However, T.K. should not have been physically handling J.S. in that manner and his conduct created an unreasonable risk of harm to J.S. J.S.'s injuries demonstrate that T.K.'s hands were in the area around his neck. In short, J.S. was injured because T.K. failed to exercise a minimum degree of care.
The ALJ also determined that the Department met its burden and established that T.K.'s actions constituted conduct unbecoming a public employee. The ALJ wrote:
T.K.'s actions of throwing J.S. on the bed, mounting him, placing his hands in and around J.S.'s neck area and physically struggling with him were excessive and subjected J.S., a minor, to an unreasonable risk of harm. Further, J.S. was actually harmed as a result of T.K.'s willful and wanton actions. Inappropriate contact with a minor [who] T.K. was supposed to protect captures the [essence] of conduct unbecoming of a public employee.
Accordingly, the ALJ upheld the Division's finding of abuse and directed that T.K.'s name be placed on the central registry for substantiated abuse findings. In addition, the ALJ affirmed the Department's final disciplinary action and T.K.'s removal from his position as senior youth worker at the Center. Thereafter, T.K. filed exceptions to the ALJ's decision with the Commission and the Acting Director of the Division.
On October 5, 2011, the Acting Director of the Division issued her final decision accepting and adopting the ALJ's decision in the abuse proceeding. In addition, on November 2, 2011, the Commission issued its final decision in the disciplinary matter. The Commission accepted and adopted the ALJ's findings of fact and conclusions of law. This appeal followed.
T.K. raises the following arguments for our consideration:
THE [ALJ] MISAPPLIED THE LAW BY CLAIMING CERTAIN CASE LAW GIVES HER THE POWER TO FIND FACTS TO BE EVIDENCE TO FILL IN THE BLANKS WHERE PETITIONER DID NOT OR COULD NOT PROVIDE SUFFICIENT EVIDENCE AT TRIAL.
THE [ALJ] ABUSED HER DISCRETION BY ARBITRARILY ADDING EVIDENCE AS FACT TO FILL IN THE BLANKS WHERE PETITIONER DID NOT OR COULD NOT PROVIDE EVIDENCE, INSTEAD OF BEING AN IMPARTIAL ARBITER, WHICH OUGHT TO HAVE LED THE JUDGE TO FIND THAT PETITIONER DID NOT PROVIDE EVIDENCE SUFFICIENT TO MEET ITS BURDEN OF PROOF OF RESPONDENT'S LIABILITY FOR ALLEGATIONS OF ABUSE BY [A] PREPONDERANCE OF EVIDENCE.
[THE ALJ] MISAPPLIED THE LAW IN HOW SHE APPLIED CERTAIN FACTS TO THE LAW.
[A]. MISAPPLICATION OF MINIMUM DEGREE OF CARE STANDARD.
[B]. THE CIRCUMSTANCES SURROUNDING THE INCIDENT ARE SUCH THAT [THE ALJ] SHOULD HAVE FOUND THAT T.K. USED REASONABLE FORCE UNDER THE CIRCUMSTANCES.
[C]. THE [ALJ] MISAPPLIED THE LAW BY DECIDING THAT J.S. WAS AN ABUSED CHILD PURSUANT TO N.J.S.A. 9:6-8.21(c) WHEN THE RESULTS OF THE INCIDENT [DO] NOT MEET THE STATUTORY DEFINITION.
THE [ALJ] SHOULD NOT HAVE MADE HER JUDGMENT AGAINST RESPONDENT, T.K., WITHOUT THE STATE PRESENTING AN EXPERT ON [THE] NEW JERSEY ADMINISTRATIVE CODE TO TESTIFY WHAT THE PERTINENT ADMINISTRATIVE CODES ARE AT THE TRIAL, SINCE THE [ALJ] FOUND THAT T.K. VIOLATED THESE UNPRESENTED CODES.
THE PUNISHMENT FOR THE ALLEGED OFFENSES WAS EXCESSIVE. EVEN IF THE ALLEGATIONS AGAINST T.K. WERE TRUE, THE FINDING THAT TERMINATION IS JUSTIFIED IS UNREASONABLE AND SHOCKING TO ANY SENSE OF FAIRNESS CONSIDERING THE ALLEGATIONS.
[A]. EXAMPLE OF WHEN TERMINATION APPROPRIATE.
[B]. EXAMPLE OF WHEN A LESS SEVERE DISCIPLINE IS APPROPRIATE.
[C]. T.K. WAS ENTITLED TO PROGRESSIVE DISCIPLINE [AND THE ALJ] MISAPPLIED THE LAW BY NOT GRANTING [SUCH RELIEF].
"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). When reviewing a decision of an administrative agency, we consider: 1) whether the agency's decision offends the State or Federal Constitution; 2) whether the action violated express or implied legislative policies; 3) whether there is substantial credible evidence in the record to support the agency's factual findings; and 4) whether the agency clearly erred in reaching a conclusion based on its consideration of the relevant factors. Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In our review of administrative agency decisions, we give due regard to the agency's expertise and superior knowledge in its regulatory field, where appropriate. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1988)).
Furthermore, we defer to the agency's findings of fact when they have been influenced by the judge's ability to hear the testimony and assess the credibility of the witnesses. Clowes, supra, 109 N.J. at 587 (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1981)). We will not reverse an agency's factual findings unless the findings are clearly mistaken "'and so plainly unwarranted that the interests of justice demand intervention and correction[.]'" Id. at 588 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
We are satisfied from our thorough review of the record that the decisions reached by the Commission and the Acting Director are supported by substantial credible evidence and fully comport with the applicable law. R. 2:11-3(e)(1)(D). We are additionally satisfied that T.K.'s arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following.
N.J.S.A. 9:6-8.21(c) provides in pertinent part that a child is "abused or neglected" if his
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 . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .
"Parent or guardian" is defined as "any natural parent, adoptive parent, . . . or any person, who has assumed responsibility for the care, custody or control of a child[.]" N.J.S.A. 9:6-8.21(a).
A failure to provide a minimum degree of care involves conduct that is "grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dept. of Human Servs., 157 N.J. 161, 178 (1999). Under N.J.S.A. 9:6-8.21, a person is responsible for the injuries he causes, if "an ordinary reasonable person would understand that a situation poses dangerous risks [and the person] acts without regard for the potentially serious consequences." Id. at 179.
Here, there is sufficient credible evidence in the record to support the ALJ's finding that T.K. failed to exercise the minimum degree of care when supervising J.S. and unreasonably subjected him to harm or the substantial risk of harm. T.K. contends, however, that the incident was relatively quick and the injuries that J.S. sustained were superficial. He maintains that he used reasonable force to protect himself. The ALJ found otherwise, and did so based on her assessment of the credibility of the witnesses who testified at the hearing. We have no reason to second-guess the ALJ's credibility determinations or the conclusion that J.S. was an abused child under N.J.S.A. 9:6-8.21(c).
T.K. also argues that he was "entitled" to progressive discipline and his removal was excessive. We do not agree. "A reviewing court should alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority[.]'" In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk, 90 N.J. 550, 578 (1982)). We may not set aside an agency's disciplinary decision unless, when viewed in light of all of the relevant circumstances, the discipline imposed is so disproportionate to the infraction that it shock's "'one's sense of fairness.'" Id. at 28-29 (quoting Polk, supra, 90 N.J. at 578).
Although progressive discipline "is a recognized and accepted principle" to be employed by an agency disciplining its classified employees in the public sector, that principle need not "be applied in every disciplinary setting." Id. at 33.
To the contrary, judicial decisions have recognized that progressive discipline is not a necessary consideration when reviewing an agency head's choice of penalty when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest.
We are satisfied that the Commission reasonably determined that T.K.'s misconduct was sufficiently severe as to warrant his removal from his position as a senior youth worker at the Center.
1 The Division is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.