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New Jersey Dep't of Children and Families v. Z.P.

December 7, 2009

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, PETITIONER-RESPONDENT,
v.
Z.P., RESPONDENT-APPELLANT.



On appeal from the Division of Youth and Family Services, Department of Children and Families, Docket No. AHU 07-583.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2009

Before Judges Parrillo and Lihotz.

Appellant Z.P. appeals from the final decision of the Director of the New Jersey Division of Youth and Family Services (DYFS), substantiating the charge of child neglect against her, and including her name in the DYFS Central Registry. We affirm.

The essential facts are not in dispute. On June 21, 2005, appellant left her two minor children, two-year-old son and five-year-old nephew, unattended in her automobile in a large outside parking lot at the Pathmark on Shank Road in Freehold, adjacent to Route 9. An observer telephoned the Freehold Township Police at 5:29 p.m., and the police arrived at the scene approximately five minutes later. It is unknown how long the children were in the vehicle prior to being noticed, but the observer watched the unattended children for five minutes prior to calling the police.

At that time of day, it was about eighty-five degrees Fahrenheit, and the parking lot was "very busy." The officer who arrived at the scene, Detective John Catron, observed that the doors were unlocked and the rear windows were completely open, such that he could have "reached in and pulled the child out of it[.]" Appellant's vehicle was in the third spot from the Pathmark, however, the view from the interior of the store was blocked by other vehicles parked between appellant's vehicle and the store, as well as by signs, banners, and stocked-up store items in front of the store windows. The children were asleep at the time Catron arrived at the scene.

Roughly five minutes after Catron arrived, appellant returned to her vehicle. She told Catron that she went inside "to get some quarters[,]" although she exited the store with at least three Pathmark shopping bags, and in a later interview, claimed she went into Pathmark to purchase diapers for her son.*fn1

Just before arriving at the store, appellant dropped off her grandmother, who had been in the vehicle with the children. Both children were uninjured in the incident, in no distress, and in good health.

When asked why she left the children in the car, appellant replied that her son had fallen asleep and she told her five-year-old nephew to watch him while she was in the store. In a subsequent interview with a DYFS caseworker, however, appellant explained that she had undergone a hemorrhoidectomy only five days before the incident, and was in too much pain to carry the children into the store. Appellant was allowed to take the children home following the incident.

Catron contacted DYFS and the agency assigned a Special Response Unit (SPRU) caseworker, who investigated the matter and created a safety plan for appellant to ensure ongoing supervision of her children. In an interview with the SPRU caseworker, appellant admitted that she left the children unattended in the vehicle.*fn2

Based on its investigation, DYFS determined that child neglect had been substantiated and informed appellant that her name would be listed in the DYFS Central Registry, N.J.S.A. 9:6-8.11. Appellant filed a timely appeal, and the matter was transmitted to the Office of Administrative Law (OAL), where it was heard before an Administrative Law Judge (ALJ). At the October 1, 2008 hearing, appellant stipulated to the following facts: she left the children in her unattended vehicle in front of the Pathmark on June 21, 2005; both children were sleeping; it is unknown how long the children were in the vehicle prior to the observer noticing them; the view of appellant's vehicle from the store was partially obstructed; the doors to appellant's car were unlocked; and it was eighty-five degrees Fahrenheit at the time of the incident.

On November 17, 2008, the ALJ issued a decision recommending reversal of the finding of neglect and the listing of appellant's name in the Registry. The ALJ concluded that although "Z.P. was negligent in leaving the children unattended in the vehicle[,] . . . this negligence does not rise to the level of gross or wanton ...


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