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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A-4245-08T1

    Decided: May 26, 2010

Before Judges Carchman and Parrillo.B. Eugene Fulghum, Jr., attorney for appellant. Paula T. Dow, Attorney General, attorney for respondent New Jersey Department of Children and Families (Melissa H. Raksa, Assistant Attorney General, of counsel;  Kelly L. Johnston, Deputy Attorney General, on the brief). Arthur R. Sypek, Jr., Mercer County Counsel, attorney for respondent County of Mercer (Joseph P. Blaney, Assistant County Counsel, on the brief).

In these consolidated matters, appellant M.R. appeals from:  (1) a March 6, 2009 final decision of the Department of Children and Families (Department or DCF) finding M.R. physically abused T.H., a sixteen-year old resident of the Mercer County Youth Detention Center (MCYDC);  and (2) an April 17, 2009 Civil Service Commission (CSC) decision upholding M.R.'s removal from employment with the County of Mercer (County).   We affirm.

Both decisions adopted the findings of fact and conclusions of law of the administrative law judge (ALJ), to whom the cases had been transmitted and consolidated for hearing following:  (1) a determination by the Department's Office of Child Services Institutional Abuse Investigation Unit (IAIU) 1 substantiating M.R.'s physical abuse of T.H.;   and (2) a departmental disciplinary hearing resulting in M.R.'s removal from employment with the County.   The following evidence was adduced at the Office of Administrative Law (OAL) hearings on July 8 and August 19, 2008.

Supervising youth worker Brian Dolobacs, who was employed at the MCYDC for sixteen years, testified that he was the supervisor on duty on July 28, 2002.   While working in Central Control, he observed on the security monitor youth worker R.W. holding T.H.'s arms above his head and another youth worker, M.R., hitting T.H. in the midsection.   Thirty-five minutes after witnessing on the camera what he first thought was “horseplay,” Dolobacs found T.H. crying in his room, with blood on his pillow, which appeared to be fresh.

The incident was reported to IAIU the next day, July 29, 2002, and Investigator Elisa Billups interviewed T.H. as well as other residents and staff.   According to Billups, T.H. said he was given permission by M.R. to use the bathroom, but that he was taking a long time and began to get mouthy with M.R. In response, M.R. grabbed T.H. by a wrist, put his arms behind his back, and M.R. and R.W. together took T.H. to a table in the center of the pod while T.H. was wearing only a towel.   M.R. and R.W. bent T.H. over the table and began to smack him on the buttocks.   When T.H. responded with verbal insults toward the staff, R.W. held him in a “full nelson,” while M.R. punched him in the chest and side.   M.R. laughed and mocked T.H. as he did this.   T.H. then went to the bathroom, where M.R. approached and accused him of being disrespectful, pushed his head into a mirror, and smacked T.H. in the face with his hand.   T.H. went to his room, where he was assaulted by R.W. Thereafter, T.H. went back to his bed, covered up, and rolled into a ball.   Staff came back to check on him, and the nurse was called.

As part of her investigation, Billups interviewed other residents, whose statements generally corroborated T.H.'s version.   Specifically, L.W., M.Y., and D.B. reported witnessing M.R. punch T.H. while he was being restrained by R.W. At the conclusion of her investigation, Billups found that T.H.'s allegation of physical abuse was substantiated.

T.H. repeated essentially the same account to Detective Brian Parker of the Ewing Police Department, who was conducting a parallel investigation of the July 28, 2002 incident.   Parker testified that T.H.'s statement to him was consistent with the statement T.H. had provided earlier to Billups, while, on the other hand, M.R. denied striking T.H., explaining that he became involved because of T.H.'s threats to staff.   Parker took photographs of T.H., which demonstrated some discoloration and bruising to T.H.'s left rib cage and back in three locations.   As a result of Parker's investigation, criminal charges were filed against both R.W. and M.R. for child endangerment, assault, and official misconduct, but were later dismissed.

Lionel Henderson, superintendent of the MCYDC, testified as to the policies and procedures of the facility, including a “use of force” policy that forbids abuse or neglect by staff against residents and requires any violation to be reported immediately.   In that vein, Henderson said that R.W. and M.R. failed to properly file incident reports and that the circumstances did not warrant their physical intervention, but only a verbal reprimand to T.H. According to Henderson, a “Full Nelson” is never an appropriate restraint technique for a juvenile, even when physical force is otherwise authorized.   Consequently, Henderson reported that after M.R. was served with a preliminary notice of disciplinary action, a departmental hearing was held and thereafter a final notice of disciplinary action was issued, removing M.R. from his employment based upon sustained findings of physical abuse of a resident, inappropriate physical conduct with a resident, violation of standard operating procedures, and conduct unbecoming a County employee.

M.R. testified and denied physically striking or abusing T.H. According to M.R., T.H. went into the bathroom against R.W.'s instructions and R.W. pulled T.H. out by the hand before placing him in a “Full Nelson.”   While in the “Full Nelson,” T.H. attempted to kick M.R. in the genitals, and M.R. claimed that the video referenced by Dolobacs showed only horseplay which occurred after T.H. attempted to kick M.R.

At the completion of the testimony, M.R.'s counsel produced a certification of T.H., who was now an incarcerated adult.   T.H.'s certification stated that the incident he reported six years earlier did not occur, that he lied to Investigator Billups, and that M.R. did not harm him.   The ALJ admitted the certification in evidence.

Following submission of legal arguments, the ALJ issued a comprehensive initial decision on December 8, 2008.   Finding M.R.'s denial not credible, the ALJ concluded that M.R.'s violation of MCYDC policy together with IAIU's substantiation of abuse supported removal from public employment and inclusion of his name in the Central Registry pursuant to N.J.S.A. 9:6-8.10a (e).   The ALJ reasoned:

One of the most potentially damning pieces of evidence against [M.]R. is the group of statements given shortly after the event by co-residents that each contain affirmation that [M.]R. and [R.]W. held [T.]H. down on the table and smacked him.   Since none of these individuals were themselves involved in any confrontation with either worker at that time, and, given the physical setup each had a potential for a reasonable view of the events occurring in the central, open area of the Pod, their statements, although unsworn, are seemingly damaging to [M.]R.'s denial that he ever struck, or even might have appeared to strike, [T.]H. while the resident was over the table.   Yet according to [T.]H.'s Certification, he procured his fellows to go along with a story that implicated [M.]R. in the table incident, an event he said never happened, or at least never involved his being struck at that time by either [M.]R. or [R.]W. Frankly, while he tries to explain why the others might have gone along with him in lying about such an event, and while I do not deny that the feelings of residents about staff might induce some to lie about the conduct of staff, it seems highly unlikely that this occurred here.  [T.]H. was definitely assaulted on that day and he was definitely injured.   While in the end the primary actor in this may very well have been [R.]W., there is enough evidence to support that [M.]R. also participated so as to lead to the conclusion that any claim that the several residents who supported that fact were lying at [T.]H.'s behest is not credible.   Indeed, I am convinced that Dolobac's observation of what he claimed to be horseplay was in fact an observation of [M.]R. actually striking [T.]H., as [T.]H. originally said, and, as he struck [T.]H. when [R.]W. had [T.]H. in a Full Nelson, there is ample reason to accept the original assertion that he, and [R.]W., also struck [T.]H. when he was over the table, as [T.]H. and the other residents said six long years ago.   While some here have characterized the striking as “horseplay,” I reject that characterization and FIND that whatever the initial attitudes of the participants were, the event escalated to a serious nature and the striking, punching and pushing were not “play,” but were acts of abuse that constituted misconduct and violations of announced policy.   Further, the statements provided to Investigator Billups themselves provide some indicia of reliability.   The observation by R.H. [a resident witness] that he saw [M.]R. and [R.]W. laughing and then, when they held [T.]H. down, [T.]H. got “real serious” and that “you could see on his face he was upset,” does not sound as if it was part of a rehearsed “story” made up to get [M.]R. for something he had not done.   Neither does the fact that while R.H. never mentions that he also went over and smacked T.[H.]'s buttocks, L.W. does mention this, and M.Y. also notes that a resident went over and hit him, but does not identify that resident.   Again, if the story was put together by T.H., as he asserts in his Certification, I doubt very much that this aspect would have been included at all, or that the stories of the residents would diverge as they do.   While none of these by themselves is conclusive, given the whole picture as presented by the several statements and observations of residents and staff, I FIND that the Certification of T.H. dated August 29, 2008 is not credible and should be given no weight in this case.

DCF issued a final agency decision on March 6, 2009, adopting the ALJ's initial decision and, in responding to M.R.'s exceptions, specifically held that the “testimony of [ ] Dolobacs, namely that he witnessed on the monitor what appeared to be [M.R.] striking T.H. in the midsection while R.W. held his hands above his head, provides ample corroboration to allow the hearsay statements of staff and resident witnesses to be considered.  N.J.S.A. 9:6-8.46(a);  N.J.A.C. 1:1-15.5.”

On appeal, M.R. argues that the ALJ decision was based on hearsay unsupported by competent corroborative evidence and therefore is arbitrary, capricious, and unreasonable.   We disagree.

Our scope of review of an agency decision is limited.  Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).   We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy.  Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985);  Gloucester County Welfare Bd. v. State of N.J. Civil Serv. Comm'n, 93 N.J. 384, 391 (1983);  Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980);  N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).   In this regard, we consider the “ ‘proofs as a whole,’ ” giving due regard to the “ ‘agency's expertise where such expertise is a pertinent factor.’ ”  Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

To avoid the fact or appearance of arbitrariness, “some legally competent evidence must exist to support” agency findings of fact to “an extent sufficient to provide assurances of reliability․”  N.J.A.C. 1:1-15.5(b).  Thus, while hearsay is generally admissible in administrative proceedings, N.J.A.C. 1:1-15.5(a), there must be “a residuum of legal and competent evidence in the record to support” factfinding.  Weston v. State, 60 N.J. 36, 51 (1972).   Significantly,

[i]t is not possible to state a hard and fast rule as to the extent hearsay may be utilized in evaluating the sufficiency of the evidentiary basis of a particular administrative determination.   Suffice it to say that much may be left to the discretion of the administrative official who should be aware of the principle which warrants reception of hearsay, as well as the qualification thereon that the decision should not be predicated on hearsay alone.

[Id. at 52.]

Thus, the weight to be given to hearsay evidence is to be determined by the ALJ after taking into consideration the “nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability.”  N.J.A.C. 1:1-15.5(a).

Analogously, in cases of child abuse, the Legislature has allowed into evidence hearsay statements of a child relating to allegations of abuse or neglect, but requires corroboration to support a factfinding of abuse or neglect.   Thus, N.J.S.A. 9:6-8.46a(4) provides that a

previous statement 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.

As noted, hearsay is permitted so long as it is corroborated.   See N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J.Super. 155, 166 (App.Div.2003).  “ ‘[T]he corroboration requirement must reasonably be held to include indirect evidence of abuse.’ ”  N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.Super. 427, 436 (App.Div.2002) (quoting State v. Swan, 790 P.2d 610, 615-16 (Wash.1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L. Ed.2d 772 (1991)).

Here, the ALJ found that the hearsay statements of T.H. and the other MCYDC residents were corroborated not only by one another, but, more significantly, the legally competent, credible testimony of Dolobacs, who personally witnessed M.R. strike T.H., and who observed first-hand T.H.'s condition immediately after the incident as well as blood on his pillow.   In addition, Investigator Billups personally observed bruises on T.H.'s side and rib area one day after the assault, and several days later, Detective Parker photographed T.H.'s injuries.   Thus, although the ALJ admitted the hearsay statements of T.H. and other MCYDC residents, there was sufficient legally competent corroborating evidence of M.R.'s physical abuse of T.H. to meet the requirements of the residuum rule, N.J.A.C. 1:1-15.5, as well as N.J.S.A. 9:6-8.46a(4).   Accordingly, the dual agency determinations adopting the ALJ's initial decision were neither arbitrary, capricious, nor unreasonable.

We have considered appellant's remaining arguments and deem them to be without merit.  R. 2:11-3(e)(1)(D) and (E).



FN1. At the inception of the matter, the IAIU was within the Department of Human Services and has since been transferred to the DCF. L. 2006, c. 47, § 46;  N.J.S.A. 9:6-8.11..  FN1. At the inception of the matter, the IAIU was within the Department of Human Services and has since been transferred to the DCF. L. 2006, c. 47, § 46;  N.J.S.A. 9:6-8.11.


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