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                      APPROVAL OF THE APPELLATE DIVISION
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         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).

                                    2                           A-4838-14T4
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,

                                    3                               A-4838-14T4
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

                                       4                                   A-4838-14T4
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

                                    5                                A-4838-14T4
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).]

                                  7                          A-4838-14T4
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

                                     8                                 A-4838-14T4
            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


                                     9                                   A-4838-14T4
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.

                                         10                                 A-4838-14T4
      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

                                      11                             A-4838-14T4
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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