On appeal from a Final Decision of the New Jersey Division of Youth and Family Services, Docket No. AHU 07-002.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2009
Before Judges Cuff, Payne and Waugh.
Defendant, J.L., appeals from an August 25, 2008 final determination by the Director of the New Jersey Division of Youth and Family Services (DYFS) that, on April 18, 2005, defendant had committed an act of child neglect as defined by N.J.S.A. 9:6-8.21c(4)(b) by failing to adequately supervise her two young sons. On appeal, defendant raises the following issues:
I. THE DYFS AGENCY DETERMINATION OF SUBSTANTIATED CHILD NEGLECT IS ARBITRARY, CAPRICIOUS AND/OR UNREASONABLE OR VIOLATED LEGISLATIVE POLICY.
II. DYFS FAILED TO PROVIDE DUE PROCESS IN INITIAL PROCEDURE.
III. DYFS VIOLATED LETTER AND SPIRIT OF EXTENSION STATUTE FOR FILING OF FINAL DECISION SO INITIAL DECISION SHOULD BE FINAL.
Following a review of the record in this matter in light of applicable precedent and the arguments of counsel, we reverse.
J.L., a thirty-nine-year-old former schoolteacher, is married to M.L. a physician. The couple have two sons. At the time of the incident in question, one was almost six years of age, having been born in August 1999, and the other was almost four years of age, having been born in August 2001. The family lived in a condominium complex that had a recreational area comprised, successively, of an all-purpose court, then three tennis courts, and, finally, a children's play space. Prior to the incident, the older boy had been engaged in a water fight, with J.L.'s assent. Having become wet as a result, the child asked J.L.'s permission to return home and change. At the same time, the younger boy told J.L. that he needed to use the bathroom. J.L. permitted the boys to return home alone, watching them as they proceeded through the recreational area and into the condominium, which could be viewed clearly from where J.L. was standing. The boys did not have to cross any streets to reach their home. J.L. remained in the play area, chatting with a friend whose daughter was playing nearby while she awaited her sons' return.
J.L. had left her front door unlocked, and had trained the boys to leave it ajar if they entered without her. However, on this occasion, the door closed. Because the front inside door knob was equipped with a child-proof cover, the boys were unable to open the door. Believing it to be locked, at 5:38 p.m. the older boy called 9-1-1. At 5:48, the police arrived at the house, knocked, and then opened the door. The older boy, who apparently made a second 9-1-1 call at 5:52 p.m., was on the telephone. According to the police report,
[E.L., the older boy] appeared to have been crying. I asked him why he called us and he replied, "Because [S.L.] locked me in, mommy only knows how to open the door and she wasn't here so I was scared." Both [E.L.] and [S.L.] appeared to be o.k. I checked the residence to see if there was anyone else in the residence or back porch with negative results.
In the meantime, J.L., realizing that the children had not returned and that dinnertime was approaching, picked up the boys' bikes, helmets, a pail of chalk, and a ball and commenced to walk home. As she approached her residence, she noticed the police at her door. The police report indicates that J.L. returned at 6:11 p.m., approximately one-half hour after her son's first 9-1-1 call. Upon her return, J.L. was informed that the incident would be documented and that DYFS would be contacted.
The police waited approximately six hours to inform DYFS of the incident, calling it at 11:20 p.m. The DYFS worker, regarding the matter as non-emergent, assigned it a twenty-four hour response time. Between April 19 and 27, 2005, DYFS conducted an investigation of the matter, pursuant to N.J.S.A. 9:6-8.11, which included inquiries to the older child's school and the younger child's day care center and to their pediatrician. The school's guidance counselor said she was "very surprised" by the Division's call, reporting no problems with the older boy and adding that J.L. volunteered at the school. Similarly, the day care facility reported no difficulties and stated that J.L. was "very involved with the children." The pediatrician's office indicated that the boys were current on their immunizations and had been seen within the year.
Additionally, DYFS conducted interviews of J.L. and her husband and interviews of the boys outside of their parents' presence. The DYFS worker described her conversation with the older boy regarding the incident as follows:
He said he was at the park and his shirt was wet and he came to get another shirt and he put on his rainbow shirt. Worker asked where the playground was. [E.L.] said it was right outside and then pointed to it. Worker looked out the window and could see it from there. He said that when they were in the house that his brother locked the door. Worker asked when he called 911. He said when his brother locked the door that is when he called 911. Worker asked him is he normally home alone. [E.L.] stated he was not and that his mom is usually home and that his dad is sometimes home. ...