STATE in INTEREST OF M.M., a juvenile. resitution hearing available

STATE in

INTEREST OF M.M., a juvenile. resitution hearing available

________________________________________________________________

	August 12, 2011

Submitted April 4, 2011 — Decided

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2446-09T2

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-2429-09.

Yvonne Smith Segars, Public Defender, attorney for appellant M.M. (Monique Moyse, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent State of New Jersey (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Marc Miller[1] appeals from a juvenile adjudication of delinquency. The Family Part determined that Miller committed a theft of jewelry valued between $500 and $75,000, contrary to N.J.S.A. 2C:20-3. On December 3, 2009, after the juvenile waived preparation of a pre-disposition report, the court sentenced Marc to one year probation, a substance abuse evaluation, mandatory fees and penalties. As a condition of probation, Marc was ordered to pay the victim's insurer $5000 in restitution. In a later order, the court set a payment schedule of $50 a month for one year, and $100 a month thereafter.

We briefly summarize the salient facts supported by the trial evidence. The stolen jewelry was the property of Marilyn Starr, the grandmother of Marc's former girlfriend, Emily Caine (Emily). The Starr household included Starr and her husband, their daughter Rochelle Caine (Caine) and her husband, and Emily and her sibling. Emily and Marc were friends as pre-teens and had dated for two years before breaking up in September 2008. Thereafter, until October 2008, Marc was still often present in the Starr home. Starr treated him as a "grandson."

During the period when the jewelry was found to be missing, Marc enjoyed unfettered access to the victim's bedroom area where she stored her jewelry, and the kitchen, where she often removed her rings and placed them in a cup while cooking. Marc had expressed curiosity about the jewelry and discussed its value with the victim. Barry Chalmers, a friend of Marc's, testified that Marc asked him to take him to a pawnshop to pawn items of jewelry. Barry admitted to Caine that he had taken Marc to the pawnshop and was able to describe some of the pieces of jewelry. Caine also testified that Marc apologized to her for claiming that Barry stole the jewelry.

Police initially presented the pawnshop owner with photographs of Marc, and no one else.[2] Without disclosing the purpose of his inquiry, the officer asked the owner if he recognized the person depicted. The shop owner identified Marc as someone who previously had been to his shop on more than one occasion to sell jewelry. In a later interview about Marc, the police officer presented the shop owner with a drawing of a bracelet decorated with a horse image, one of the distinctive items that Starr claimed was stolen. The officer asked the shop owner if he recalled seeing a bracelet like that. The shop owner recalled that Marc had sold such a bracelet.

Marc raises the following points on appeal:

POINT I

THE LOWER COURT ERRED IN ADMITTING EVIDENCE OF THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION OF DEFENDANT BY ELISHA REESE AND THE RESULTING TAINTED IN-COURT IDENTIFICATION, THEREBY DENYING DEFENDANT DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, pars. 1 and 10).

POINT II

THE LOWER COURT ERRONEOUSLY ADMITTED INTO EVIDENCE PREJUDICIAL HEARSAY STATEMENTS WHICH WERE NOT ADMISSIBLE UNDER N.J.R.E. 803(C)(3).

POINT III

THE LOWER COURT FAILED TO CONDUCT A RESTITUTION HEARING TO ASSURE THAT M.M., A JUVENILE, COULD PAY $5000.00 IN A ONE-YEAR TIME PERIOD.[3]

We have reviewed these points in light of the record and the applicable law. We find no basis to upset the adjudication of delinquency based on the court's evidentiary rulings. However, we do agree that there was insufficient evidence in the record to support the court's order of restitution. We will address Marc's arguments in turn.

I.

In determining whether an identification should be excluded, under the current standard,[4] a court must "first . . . ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). A court must consider the "totality of the circumstances" and weigh, against the corrupting effect of the suggestive procedure, five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Id. at 506-07 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). A trial court's reliability finding is entitled to great weight, and shall not be upset if supported by sufficient credible evidence. State v. Adams, 194 N.J. 186, 203 (2008).

The juvenile argues that the presentation of photographs of him alone to the pawnshop owner at the first interview was impermissibly suggestive. He also argues that it was impermissibly suggestive for police to request an opportunity to discuss "the case" involving Marc, to present the drawing of the horse bracelet, and to ask whether Marc had sold that bracelet.

Although single-photograph displays may be viewed generally with some suspicion, a court may find under particular circumstances that they are not impermissibly suggestive. Manson v. Brathwaite, supra, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155. In this case, there was sufficient evidence in the record for the trial court to conclude that, under the totality of the circumstances, presenting only Marc's photographs was not impermissibly suggestive.

The shop owner was not a victim of a crime and did not have the interest of a crime victim in securing an arrest. Although the shop owner might reasonably have suspected that a crime had been committed simply based on the police inquiries, the police did not disclose their suspicions about Marc. In a significant sense, then, the shop owner did not identify a suspect at all; he simply stated that he recognized an individual.

In United States v. Jones, 652 F. Supp. 1561, 1570 (S.D.N.Y. 1986), the court persuasively distinguished between recognition and identification. As in this case, police asked a

disinterested third-party witness if she recognized a person without disclosing the purpose of the inquiry.

Niemeyer [the investigating officer] simply showed Crouch [the third-party witness] a photograph and asked her if she recognized the subject for any reason. Crouch was free to answer "yes" or "no." The fact that she was shown only one photograph in no way "suggests," that is to say, tends to elicit, an affirmative response. We deal here with recognition in its most general sense. There is a quantum difference between that process and identification for a particular purpose, such as the identification of a perpetrator by his victim.

[Ibid.]

The court also found it inconsequential that the employee likely surmised that the person depicted was a possible suspect. "If anything, Crouch's awareness of Niemeyer's general purpose would likely cause her to be careful before saying she recognized the man in the photograph." Ibid. We agree with that reasoning.

Nor was it impermissibly suggestive for the police, at a second interview, after announcing a desire to discuss Marc's case, to present the drawing of the horse bracelet and inquire whether the shop owner recognized the item. The shop owner had already recognized Marc as someone who had sold jewelry. The identification at the second interview focused on the jewelry, not the person. However, the limitations on impermissibly suggestive identification procedures, grounded in notions of due process, generally pertain to the identification of people, not things. State v. Delgado, 188 N.J. 48, 66-67 (2006).[5]

Moreover, there was sufficient evidence in the record to support the trial court's finding that the shop owner's identification was reliable. Among other factors, he had the opportunity to view Marc face-to-face in his own business establishment, and transacted business with him recently on multiple occasions. See State v. Adams, supra, 194 N.J. at 204 (discussing factors that should be considered in determining reliability). In sum, we discern no error in the admission of the shop owner's identification of the juvenile.

II.

The juvenile also argues that the trial court erroneously admitted into evidence three hearsay statements: (1) that certain young people who visited the Starr household said they were looking for money from Marc; (2) that certain people said that Marc had committed the theft; and (3) that certain people said that Marc had accused Barry of committing the theft. The trial court's evidentiary rulings are entitled to substantial deference. State v. Morton, 155 N.J. 383, 453 (1998).

Starr testified that certain young persons came to her house stating that they were looking for Marc, they wanted money from him, and they intended to harm him. We discern no error in the trial court's ruling that these statements were admissible because they related to the declarants' "then existing state of mind," specifically their "intent, plan, motive, [or] design" in going to the Starr home in search of Marc. See N.J.R.E. 803(c)(3). The statements were relevant because they tended to establish a motive by Marc to commit the thefts. They also tended to rebut the defense suggestion that the theft may have been committed by one of the many other young people who visited the Starr household. In any event, the statements' admission into evidence was harmless, as the court did not rely on them in its detailed findings of fact. See State v. Macon, 57 N.J. 325, 340 (1971) (describing harmless error).

The court also did not err in admitting (a) Barry's testimony describing Caine's out-of-court statement that "everyone was telling her that it was [Marc Miller]" who committed the theft; and (b) Starr's testimony about Barry's out-of-court statements that he wanted to clear his name, in the face of Marc's reported allegation that Barry had committed the theft. The out-of-court statements were not admitted for the truth of the assertion that Marc was alleging that Barry had committed the theft, or that other people were alleging that Marc committed the thefts. They were admitted to explain why Barry came forward to disclose his role in pawning the jewelry.

Moreover, defense counsel did not object to Barry's testimony regarding Caine's out-of-court statement about accusations against Marc. Also, by asking Starr an open-ended question about what she said to Barry in a certain conversation, defense counsel opened the door to the out-of-court statements about Marc's reported allegations against Barry. Finally, Caine testified that Marc admitted to her directly that he had publicly accused Barry of committing the thefts, and Marc apologized for doing so. Marc's out-of-court statements were unquestionably admissible. N.J.R.E. 803(b)(1).

III.

Lastly, we agree that the record lacks sufficient support for the court's order of restitution in the amount of $5000. Marc challenges his ability to pay, and argues that a hearing was required on that issue.

The court was authorized to require the juvenile to pay restitution. N.J.S.A. 2A:4A-43b(9). Due process generally requires a court to consider a defendant's ability to pay. State ex rel. D.G.W., 70 N.J. 488, 501, 505 (1976); State v. Orji, 277 N.J. Super. 582, 589 (App. Div. 1994); see also State ex rel. R.V., 280 N.J. Super. 118, 123 (App. Div. 1995) (stating that a court must consider a juvenile's present and future anticipated ability to pay before ordering restitution); cf. N.J.S.A. 2C:44-2c(2) (stating that a court shall set the amount of restitution to be paid by an adult offender "consistent with the defendant's ability to pay").

The State bears the burden to establish the restitution amount. State v. Martinez, 392 N.J. Super. 307, 319 (App. Div. 2007) (stating that the prosecution must prove by a preponderance of the evidence the amount of restitution to be ordered, in an adult prosecution); see also Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:44-2 (2011) ("In determining the amount of restitution ordered the burden remains on the prosecution . . . ."). The Code of Juvenile Justice bars an order of restitution if the juvenile "reasonably satisfies the court" that he or she lacks the present or future ability to pay. N.J.S.A. 2A:4A-43b(9). Yet, we do not construe that provision to place the initial burden on a juvenile to disprove the appropriateness of a restitution order.

In determining a juvenile's appropriate disposition, a court must weigh, among other factors, the juvenile's "social characteristics and needs," and the juvenile's "social history as deemed appropriate." N.J.S.A. 2A:4A-43a(6), (8). The court's discretion is also informed by the rehabilitative purposes of the Code. State ex rel. D.A., 385 N.J. Super. 411, 416 (App. Div.), certif. denied, 188 N.J. 355 (2006). Depending on a juvenile's personal and family finances, a restitution order can promote rehabilitation, undermine it, or have no effect. State ex rel. D.G.W., supra, 70 N.J. at 508; see also State v. Newman, 132 N.J. 159, 173 (1993) (stating that an unaffordable restitution obligation "would frustrate the goal of rehabilitation."). Therefore, to make a reasoned restitution decision, a court must have "sufficient details as to the offender's present and probable future ability to repay the damages caused." State ex rel. D.G.W., supra, 70 N.J. at 505.

The State argues that no hearing was necessary because the juvenile did not object to the amount of the victim's damages, nor question his ability to pay. We disagree. Where a defendant did not contest the restitution amount, nor dispute his ability to pay, we have held that a restitution hearing was unnecessary, but we did so in view of ample evidence in the record of his ability to pay, including defense counsel's concession on the record that his client had the funds to pay restitution, and evidence in the presentence report regarding defendant's education, employment, and earning capacity. State v. Orji, supra, 277 N.J. Super. at 589. The record before us contains no similar evidence about Marc's ability to pay, nor did defense counsel affirmatively concede the point.

By contrast, where a restitution order was unsupported by the record, we have held that a hearing was necessary, even though the juvenile, as in this case, did not object to the restitution amount. State ex rel. R.V., supra, 280 N.J. Super. at 121, 124. The trial court in R.V. did not conduct a hearing regarding "how the payment would impact on the . . . juvenile, or his ability to pay and prospects for future employment." Id. at 121. We remanded for a hearing limited to whether the juvenile "presently or in the future will or should be able to pay the amount ordered." Id. at 124.

We do so here as well. The hearing should be summary in nature. State ex rel. D.G.W., supra, 70 N.J. at 506-07. The court shall consider Marc's present and future ability to pay, and the impact of the order on his prospects for rehabilitation.

Affirmed in part and remanded for a restitution hearing consistent with this opinion. Jurisdiction is not retained.

---

[1] For the reader's convenience, we use pseudonyms for the juvenile and other minors mentioned in the opinion. We also use pseudonyms of related family members of the juveniles, to avoid their identification.

[2] Although the pawnshop owner testified that the officer presented photographs of four individuals, the court credited the officer's testimony that at their first meeting, he presented only photographs of Marc. Sufficient credible evidence in the record supports the court's fact-finding. State v. Scott, 236 N.J. Super. 264, 267 (App. Div. 1989) (sustaining trial court's findings in hearing challenging identification).

[3] This point was not raised in the trial court, as the juvenile did not object to the amount of restitution or his ability to pay. The juvenile's brief should have so noted. See R. 2:6-2(a)(1). However, we choose to address the issue.

[4] The Supreme Court asked a Special Master to review the appropriateness of the current standard. State v. Henderson, No. A-8-08 (Feb. 26, 2009). The Special Master's report in Henderson is available at http://www.judiciary.state.nj.us/ pressrel/HENDERSON%20FINAL%20BRIEF%20.PDF%20(00621142).PDF.

[5] Nor do we perceive this to be the "rare and extreme case" where "the degree of suggestiveness of an identification procedure concerning an inanimate object . . . [is] so great as to contravene a defendant's due process rights." Id. at 68 n.13 (quoting Commonwealth v. Spann, 418 N.E.2d 328, 332 (Mass. 1981)) (quotation marks omitted).

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STATE OF NEW JERSEY IN THE INTEREST OF A.D., A MINOR A-3720-09T4; A-3721-09T4

5-9-11 The denial of the state's motion to transfer jurisdiction from the family part to the Law Division is reversed where defendants were 17 years old when they were charged with Chart 1 offenses. Both defendants were just shy of eighteen when they were charged with Chart 1 offenses, including murder. Defendants' claims of duress and renunciation do not negate the existence of probable cause to believe they committed a delinquent act and are insufficient to defeat waiver.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. A.R., J.R., W.B., AND J.H. IN THE MATTER OF N.R., I.R., AND J.H. A-3161-10T4

5-10-11 The undisputed facts revealed that defendant left his ten-

month child to sleep on a twin bed without railings, while a

ten-year old child also slept in the bed, near an operating

radiator; the ten-month old child was found the next morning on

the floor suffering severe burns from the hot radiator. The

trial court found defendant was merely negligent and the child

neither abused nor neglected within the meaning of N.J.S.A. 9:6-

8.21(c). The court granted leave to appeal and reversed,

concluding in its application of the statutory standard, as

interpreted in G.S. v. Dep't of Human Servs., 157 N.J. 161

(1991), that defendant was grossly negligent because "an

ordinary reasonable person" would understand the situation posed

dangerous risks and defendant acted without regard for the

potential serious consequences.

9:6-3. Cruelty and neglect of children; crime of fourth degree; remedies

9:6-3. Any parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree. If a fine be imposed, the court may direct the same to be paid in whole or in part to the parent, or to the guardian, custodian or trustee of such minor child or children; provided, however, that whenever in the judgment of the court it shall appear to the best interest of the child to place it in the temporary care or custody of a society or corporation, organized or incorporated under the laws of this State, having as one of its objects the prevention of cruelty to children, and the society or corporation is willing to assume such custody and control, the court may postpone sentence and place the child in the custody of such society or corporation, and may place defendant on probation, either with the county probation officers or an officer of the society or corporation to which the child is ordered, and may order the parent, guardian or person having the custody and control of such child to pay to such society or corporation a certain stated sum for the maintenance of such child. When, however, a child is so placed in the custody of such society or corporation, and defendant fails to make the payments as ordered by the court, the court shall cause the arrest and arraignment before it of such defendant, and shall impose upon the defendant the penalty provided in this section.

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Corporal punishment considered to be child abuse DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v C.H.,

Corporal punishment considered to be child abuse

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES v C.H.,

Decided

Before Judges Axelrad, Sapp-Peterson and Espinosa.

On appeal from a Final Decision of the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU 07-551.

Marianne Rebel Brown, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Clinton Page, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

SAPP-PETERSON, J.A.D.

Appellant C.H. appeals from a final administrative agency decision by the Director of the New Jersey Division of Youth and Family Services (Division) finding that on November 20, 2003, appellant had committed an act of child abuse as defined by N.J.S.A. 9:6-8.21(c)(4)(b) by failing to exercise a minimum degree of care by unreasonably inflicting excessive corporal punishment upon her daughter, T.H. We affirm.

The incident that triggered the Division's finding against C.H. resulted from a referral it received on November 21, 2003, from T.H.'s school nurse, who reported that T.H.'s teacher brought T.H. to her office where she observed red demarcations on the right side of T.H.'s face, three to four inches long, and also observed dark red scratches, two inches in length, on T.H.'s right elbow and left cheek, as well as a greenish demarcation on the middle of her back. The Division dispatched two workers to the school where they interviewed T.H., who stated that her mother had beaten her with a paddle the previous evening after learning that she had told a neighbor that they were without electricity in the home. The school nurse did not believe that T.H. required medical attention. The workers took pictures of the bruises they observed and returned to their office where they discussed the matter with their supervisor. It was agreed at that time that there was no need to involve the police or the prosecutor.

Later that day, the workers appeared at C.H.'s home and advised her of why they were there. C.H. explained that the electricity had gone out on November 19, due to a storm and was restored on November 20. She confirmed that T.H. had gone across the street to a neighbor's house and told the neighbor that there was no electricity in their home. She admitted to spanking T.H. but only on her buttocks while T.H. was still clothed. She told the workers that T.H. had no marks on her when she left for school earlier that day and offered a number of possibilities for the marks, including the sensitive nature of T.H.'s skin that may have developed into a rash from lotion, playing with the cat around her neck, as T.H. was known to do, or doing somersaults. C.H. also suggested the injuries may have been sustained at school.

Two weeks later, at the request of the Division, Dr. Patty Vitale conducted a physical examination of T.H., who was accompanied to the examination by C.H. Dr. Vitale authored a report that was admitted into evidence at the hearing without objection. In the report, Dr. Vitale noted that she found T.H. to be a "well-developed" and "well-nourished female." She was unable to confirm the injuries to the face and elbow because the injuries had since "desorbed without any residual." Although she observed some old scarring on the body, there was no indication of the source of those scars.

Dr. Vitale's report also discussed her conversation with C.H. during which C.H. told her that T.H.'s story was not true and that T.H., like all children, sometimes did not tell the truth. C.H. also explained to Dr. Vitale that she used other forms of discipline upon T.H., but spanked her when "more significant discipline [was] required." She also shared with Dr. Vitale her experience with undisciplined children in her professional capacity and that she intended to use discipline in an effort to prevent her daughter from "end[ing] up on the streets or doing drugs[.]"

Dr. Vitale, in addition to performing a physical examination of T.H., also interviewed her. T.H. told Dr. Vitale that "mom started beating me" using a paddle "[o]n my eye like two times and on my back, that's it[,]" and that her mom hit her with the paddle on her "[f]ace, eyes, [and] cheek." T.H. told Dr. Vitale that this was the only time that C.H. had ever hit her in this way. However, when Dr. Vitale asked her if her mother had ever hit her in the face, she said "No" and reported that her cheek had been red because she scraped herself at home. Further, when asked whether her mom hit her on the face or whether she fell, she said, "I fell."

Dr. Vitale concluded that C.H.'s discipline was inappropriate and that she had used excessive force when disciplining T.H. Dr. Vitale also expressed her concern that C.H. believed that the discipline she administered to T.H. was appropriate. She believed that C.H. would benefit from parenting education and recommended that the Division "assess whether mom could benefit from additional support services."

In a letter dated February 23, 2004, the Division notified C.H. that it had affirmed the finding made by its district office that child abuse was substantiated as to T.H. C.H. appealed this decision and the matter was assigned to an administrative law judge (ALJ) as a contested case and a hearing was conducted. See N.J.S.A. 52:14F-1 to -23.

Following the presentation of the evidence, the ALJ found the evidence was insufficient to sustain the allegation that C.H. committed an act of physical child abuse under N.J.S.A. 9:6-8.21(c) and that the Division "did not have 'good cause' to make a finding of substantiated child abuse."

Specifically, the ALJ concluded:

There is no evidence in the record to establish that the injuries suffered by T.H. were either life-threatening or so serious as to cause any disfigurement or loss or impairment of the function of any bodily organ. There is no indication that either the school nurse or the DYFS investigator believed these injuries were sufficiently serious so as to require medical attention. I FIND that these are not serious injuries that are likely to cause death or serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ. I also FIND that there is no evidence in the record that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired. Obviously, if there had been a series of these incidents involving respondent, my findings could differ greatly, since multiple incidents might create or allow to be created a substantial or ongoing risk of physical injury to such child.

I am convinced that C.H. is a good parent who believed she was acting in her daughter's best interest. I FIND that what occurred was an isolated incident and did not involve the infliction of excessive corporal punishment resulting in serious injuries or impairment.

The ALJ recommended the reversal of the Division's findings and that C.H.'s name should not be placed on the Central Registry of substantiated child abusers.

The Director issued a final agency decision rejecting the recommendation of the ALJ. The Director found striking T.H. "repeatedly with a paddle, multiple times and with sufficient force to cause marks could certainly qualify as abuse per N.J.S.A. 9:6-8.21(c)(4)(b)[.]" Additionally, the Director expressed the view that when consideration is given to the reason why C.H. admittedly struck her daughter, because she told the neighbor there was no electricity in their home, C.H.'s actions went "beyond any semblance of reason, and provide[d] no justification for C.H.'s decision to administer any measure of corporal punishment" to a five-year old child.

The Director also considered that there had been "a history of questionable administration of corporal punishment." She noted that C.H. testified that she had physically paddled T.H. two months earlier and told Division investigators that she physically disciplined T.H. one to two times per month. Further, during a prior Division investigation conducted in 2001, when T.H. was only three years old, C.H. admitted that she routinely disciplined T.H. by pinching the child's inner thighs. The Director concluded that the "pattern of corporal punishment on such a young child is troubling and, when considered in concert with [the] instant matter, there is ample support to uphold this substantiation." The ensuing appeal followed.

On appeal C.H. contends:

POINT I

THE FINDING BY [THE] ADMINISTRATIVE LAW JUDGE . . . THAT C.H. DID NOT ABUSE OR NEGLECT HER DAUGHTER WAS NOT REJECTED BY [THE] DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, ON A TIMELY BASIS. [THE ADMINISTRATIVE LAW JUDGE]'S FINDING SHOULD BE ADOPTED.

POINT II

THE DEPARTMENT OF FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES DID NOT MEET THE STANDARD REQUIRED TO MODIFY OR REJECT THE FINDING OF THE ADMINISTRATIVE LAW JUDGE.

POINT III

THE RECORD DOES NOT SUBSTANTIATE A FINDING OF CHILD ABUSE. THE FINAL DECISION OF THE DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION[] OF YOUTH AND FAMILY SERVICES MUST BE REVERSED.

We first dispense, as meritless, appellant's contention that the Director failed to reject the ALJ's recommended decision in a timely fashion. The Division obtained two orders extending the time in which to issue its final agency decision. See N.J.A.C. 1:1-18.8 (permitting extensions of time limits in which to file a final decision). The final decision was issued prior to the expiration of the second extension.

Turning to the remaining arguments, we begin by noting that in challenging an agency's determination, an appellant carries a substantial burden of persuasion, and the agency's determination carries a presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). Consequently, the scope of our review of the issue before us remains limited. "Reviewing courts should give considerable weight to any agency's interpretation of a statute the agency is charged with enforcing." G.S. v.Dep't of Human Servs., 157 N.J. 161, 170 (1999). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Ibid. (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). "Although we recognize that deference is generally given to an administrative agency charged with interpretation of the law, we are not bound by the agency's legal opinions." Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., supra, 157 N.J. at 170). Additionally, where an agency head rejects a recommendation of an ALJ, the basis for rejecting the recommendation must be set forth by the agency head with particularity and new or modified findings supported by sufficient, competent, and credible evidence in the record must be made. N.J.S.A. 52:14B-10(c).

Here, in rejecting the ALJ's recommendation, the Director found the ALJ's conclusion that "there is no evidence in the record that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired" was "inconsistent with the evidence in the record." We agree.

N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected child as:

a child whose 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, as herein defined, 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

[N.J.S.A. 9:6-8.21(c) (emphasis added).]

We have held that the phrase "minimum degree of care" refers to conduct that is "grossly or wantonly negligent, but not necessarily intentional." G.S. v Dep't of Human Servs., supra, 157 N.J. at 178. Child abuse ranges from situations of "slight inadvertence to malicious purpose to inflict injury." Ibid. As the Director stated, there is absolutely nothing reasonable about inflicting harm, in the form of paddling, upon a five-year-old child because the child told a neighbor that their home was without electricity, a situation which the Director appropriately characterized as "innocuous." Moreover, evidence that T.H.'s "physical, mental or emotional condition . . . is in imminent danger of becoming impaired as the result of the failure of [C.H.] to exercise a minimum degree of care" because of the unreasonable infliction of corporal punishment was established by C.H.'s admitted use of corporal punishment regularly, including the pinching of T.H. when she was three years old as a form of punishment and her belief that no one could tell her how to discipline her own child. As we have previously recognized, "[i]n child abuse and neglect cases the elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of many acts may be 'substantial.'" N.J. Div. of Youth and Family Servs. v. C.M., 181 N.J. Super. 190, 201 (App. Div. 1981). See also Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002).

In Robert M., the Division appealed the dismissal of its complaint for continuing custody of the four biological children of the defendants. Id. at 47. In addition to their own biological children, the defendants adopted three children from Russia, one of whom died less than one year later. Id. at 47-50. His death was ruled a homicide and the defendants were arrested and initially charged with child endangerment but were later indicted and charged with, among other offenses, aggravated manslaughter. Id. at 52. They entered pleas of not guilty and were awaiting trial at the time the trial court conducted its fact-finding hearing on the abuse and neglect charges. Id. at 57. At the hearing, the court excluded interviews that had been taken of the four older children in connection with a risk assessment the Division had requested because of discovery violations. Id. at 58. During these interviews, the children described the discipline to which the decedent had been exposed. Id. at 53-55. We granted leave to the Division to appeal the dismissal of its complaint and concluded the trial court committed reversible error when it excluded "relevant proof of parental abuse which could be considered on the question of past or potential abuse of the other children." Id. at 67. We observed that:

[a]lthough the absence of past physical abuse to the natural children may infer their future safety, the alleged treatment of [the decedent] could be a dangerous harbinger to one or more of the others. As we stated in J.& E. v. M.& F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)[:]

Predictions as to probable future conduct can only be based upon past performance . . . . We cannot conceive that the Legislature intended to guarantee parents at least one chance to kill or abuse each child. Evidence of parents' fitness or unfitness can be gleaned not only [from] their past treatment of the child in question but also from the quality of care given to other children in their custody.

[Id. at 68 (emphasis added).]

"[A]s a part of its burden of proof, [in abuse and neglect cases] the State must still demonstrate by a preponderance of the competent, material and relevant evidence . . . the probability of present or future harm." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). The evidence presented regarding the Division's prior experience with C.H. was relevant to meeting this burden. The ALJ permitted the Division to introduce evidence of its prior experience with C.H. in connection with an earlier referral as relevant to the issue of C.H.'s knowledge that the manner in which she was disciplining T.H. was of concern to the Division. Contrary to C.H.'s argument on appeal, this evidence was also relevant to the likelihood that she would continue to expose T.H. to the unjustifiable discipline to which she exposed T.H. on November 20, 2003.

We are persuaded that there was more than sufficient evidence in the record demonstrating that the ALJ's ultimate findings that the incident of November 20, 2003 was isolated and that abuse had not been substantiated were not supported by the record. The Director properly considered the entire record presented to the ALJ before rejecting the recommendation and clearly articulated her reasons for doing so. N.J.S.A. 52:14B-10(c).

Affirmed.