                                      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                                NOT FOR PUBLICATION WITHOUT THE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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                                        2
      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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                                        3
      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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                                        4
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

                                                                         A-3995-17T2
                                       5
                  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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                                        6
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).


                                                                          A-3995-17T2
                                        7
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.




                                                                          A-3995-17T2
                                       8
      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


                                                                         A-3995-17T2
                                       9
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


                                                                           A-3995-17T2
                                       10
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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                                       11
             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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