On appeal from a Final Decision of the Department of Human Services, Division of Youth and Family Services, Docket No. AHU 06-196.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Waugh and Newman.
Following a hearing, an Administrative Law Judge (ALJ) found that the Division of Youth and Family Services (DYFS) had not sustained its burden of proof that appellant S.K. had committed child neglect of B.S., Jr. and replaced the finding of substantiated child neglect with a finding of unfounded. The Director of DYFS did not accept the ALJ's recommendation and determined that S.K.'s neglect of B.S., Jr. was substantiated. S.K. appeals. We now reverse.
The events surrounding the report of neglect involving S.K. and her care and supervision of B.S., Jr. took place on September 8, 2003. DYFS accepts the factual discussion as set forth by the ALJ, but comes to a different legal conclusion. We, therefore, quote extensively from the ALJ's recitation of the pertinent facts in connection with the charge of child neglect.
On September 8, 2003, S.K. operated a child care program from her Cokesbury Road home in Clinton Township with three small children entrusted to her care on that date.
Thomas DeRosa, a ten-year member of the Clinton Township police department, was dispatched to Cokesbury Road involving a call of a "small child wandering the street." Upon arriving in the area of 450 Cokesbury Road within "approximately ten minutes," DeRosa testified that he found the small child in the care of a Ms. Kimple and "the child seemed fine." DeRosa described Cokesbury Road as "a narrow two lane roadway" that "never" has "much traffic on this road." He affirmed in his testimony that traffic at the time was "minimal."
Mildred Alvarez was employed as a DYFS family service specialist at the time of the alleged incident. She conducted the investigation which substantiated neglect because a "child was found on the streets." Alvarez notes that the "time S.K. called police [was] not a factor" in her determination. During the course of her investigation when she inspected S.K.'s yard, Alvarez found the "latch still on the door" and the "fencing adequate." She described the fence as a "white picket fence without openings" and between "four to five feet high." She testified further that she could give "no explanation as to how the child came out." She found "no scratches, no bruises on the child."
Lynda Kimple testified that when she came upon the child "standing in the middle of the road" outside her house, she found the child "soiled" through his diaper. The child was "not crying" at the time. Kimple described the area as a "dangerous spot" with the south branch of the Raritan River running "behind her house." She estimated the distance from S.K.'s house to her house as approximately one quarter mile.
S.K. testified that on September 8, 2003, she had been providing children's day care services at her house and had been providing these services for twelve years. S.K. readily admits that she is not a licensed day care operation because she never has "more than five children" in her care at any one time. DCF did not take a position on the licensing issue at this hearing. S.K. proffered the name of [A.J.] as a high school senior who assisted her on September 8, 2003. However, the name of [A.J.] is not provided to any investigator or indicated in any report prior to this hearing. When asked during cross-examination why [A.J.'s] name was never mentioned to Ms. Alvarez, S.K. indicated that this was the first time such an incident occurred and that [A.J.] was "traumatized" and "shaking" and later sent home.
S.K. affirmed that her two acres of property is "almost entirely fenced in." Entrance to the children's play area is accessible through two doors/gates, each having double locks. S.K. testified that [A.J.] arrived to the house between 9:30 a.m. and 10:00 a.m. S.K. further testified that she and [A.J.] were outside with the children at the time S.K. went inside the hallway of her house to answer a telephone call. S.K. indicated that the telephone call, which involved the "pick up of another child," "took approximately one to two minutes" but "less than five minutes." She insisted that "she could see the children from an adjoining bathroom window." She also insisted that prior to the telephone call, S.K. saw eighteen month old B.S., Jr. go into a "log cabin structure" in the yard. After the telephone call, S.K. "called all the children" in order "to do diaper change." All responded except B.S., Jr.
S.K. testified that she conducted a complete search of her "yard, back porch and her house." During her search, S.K. testified that her next door neighbor, Karen Donahue, told her that a neighbor "has the child, police already called and the boy already safe." S.K. estimated that approximately "fifteen to twenty minutes" elapsed from the time the child was seen ...