On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU #06-275.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Lisa and Baxter.
T.M. appeals from the September 29, 2008 final decision of the Director of the Department of Children and Families, Division of Youth and Family Services (Division) affirming the Division's finding of substantiated child neglect by T.M. A native of Israel, T.M. argues that her background and relevant cultural differences should have been taken into account in evaluating whether her actions constituted neglect. She further argues that, even by American standards, her actions did not rise to the level of gross or wanton negligence necessary for a finding of neglect. Because the underlying incident occurred in New York and the authorities in that state did not substantiate neglect, T.M. also argues that the Director erred in failing to give proper consideration and weight to the determinations made by the New York authorities. Finally, she argues that her inclusion in the Division's Central Registry for perpetrators of child abuse or neglect is unwarranted and will have a disproportionate adverse impact on her. We reject these arguments and affirm.
On February 13, 2005, T.M. traveled to Nyack, New York with her two-and-one-half-year old daughter, A.M. They were enroute to a birthday party, and T.M. decided to stop at a shopping mall to purchase a present for the occasion. A.M. was in her child seat in the rear seat of the car. Shortly before arriving at the mall, A.M. fell asleep. T.M. determined that it would be preferable to allow her daughter to have her nap, which usually lasted about one hour, rather than waking her and taking her into the mall.
T.M. had never previously been to this mall. She turned off the engine of her car, locked the doors and left the windows completely closed. A.M. was capable of speech and could walk. T.M. believes she may have unbuckled the child seat upon leaving the car to provide greater comfort for A.M.
The parking lot was busy. The temperature was about forty degrees. T.M. intended shop in the Target store in the mall. She parked the car about ten spaces from the Target entrance, which was about 200 yards away, and entered that store directly. There are no windows on that side of the store, and, upon entering the store, T.M.'s car was completely out of her view.
T.M. hurried in her shopping activities because she wanted to return as quickly as possible to her car and unattended child. A passerby observed A.M. alone in the locked car and reported it to Target security personnel. A Target security person went into the parking lot and, coordinating with mall security personnel, located T.M.'s car. According to the mall security patrol's report, the call time was 1:33 p.m. The local police were called at 1:39 p.m. and arrived at 1:43 p.m. A store cash register receipt revealed that T.M. completed her purchase at 1:51 p.m. Therefore, A.M. was left unattended for at least twenty minutes, which T.M. later acknowledged.
T.M. gave several explanations for her conduct. As previously stated, she believed it would be preferable to allow her daughter to have her nap. She thought her shopping activity would take only five or ten minutes, and she was hurrying. Because of the short time she expected to be away, she did not believe there would be any issue of suffocation in a completely closed car. The outside temperature was not extremely cold, and she left a blanket on A.M. Most significantly, T.M. explained that in the small town in which she grew up in Israel, there was little or no concern for child abduction or similar child safety issues, that people often left their doors unlocked, and it was not uncommon to leave children unattended. This background gave her a different sense of danger than would be appropriate in the United States.
When T.M. returned to her car, she was arrested for endangering the welfare of a child, and the New York Office of Children and Family Services was notified. The criminal charges were subsequently dismissed and the New York Office of Children and Family Services, after conducting an administrative review, determined that the allegations regarding T.M. were unfounded. Nevertheless, that agency referred the matter to the Division for its consideration in light of the fact that T.M. and A.M. live in New Jersey.
The Division commenced its investigation on February 15, 2005. On May 22, 2005, the Division made a determination substantiating neglect based on inadequate supervision. The case worker determined that A.M. was left unattended for at least twenty minutes, and more likely for about forty minutes. Even giving T.M. the benefit of the doubt, and assuming the twenty minute duration, neglect was substantiated.
T.M. requested a Regional Dispositional Review. That review was conducted and, on October 2, 2006, the Division affirmed the finding of substantiated neglect. T.M. sought further administrative review and requested a hearing before the Office of Administrative Law (OAL). The hearing was delayed for a significant time for reasons not relevant here, and was finally conducted on May 6, 2008. On July 7, 2008, the Administrative Law Judge (ALJ) issued an initial decision ...