On appeal from the New Jersey Department of Children and Families, Division of Youth and Family Services, Docket No. AHU#07-722.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
X.H. appeals from the May 4, 2009 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 X.H. The Director's decision rejected the contrary determination made by the Administrative Law Judge (ALJ). X.H. argues that the ALJ had correctly applied the controlling legal standard to the facts, and the Director did not. More particularly, she argues that the Director applied a simple negligence rather than the required gross negligence standard, that the record did not contain substantial evidence to support the Director's decision, and that the Director clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. We reject these arguments and affirm.
The facts are undisputed. No witnesses testified before the ALJ, who decided the case based upon a documentary record, which included the police report, the Division's screening summary, the Division's contact sheet, the Division's findings letter, the hospital records, and X.H.'s responses to the Division's request for admissions.
On February 28, 2007, X.H. was bathing her ten-month-old son, N.L. She placed N.L. in a baby tub, which in turn, was placed in the regular bathtub. She began to drain the water from the bathtub, but left the faucet running, apparently to rinse off her son. She left the bathroom to check on the water heating in the kitchen for N.L.'s bottle. She left N.L. unattended for at least thirty seconds, and probably not more than a minute.*fn1 During that time, X.H.'s husband was in an adjacent room watching television. X.H. did not ask her husband to watch N.L. while she went to the kitchen, nor did she ask him to check on the water for the baby bottle so she could stay with N.L. When X.H. returned to the bathroom, she found N.L. turned over, face down in the water. He was not breathing and appeared to be bluish. X.H. alerted her husband. While he administered CPR, X.H. called 911. After about thirty to sixty seconds of CPR, N.L. vomited and began breathing. Emergency personnel arrived, and N.L. was transported to a hospital by ambulance. He was kept there overnight. The diagnosis was "near drowning." N.L. was discharged the next day, and he has suffered no residual effects from the incident.
Although the Division caseworker who investigated the matter did not make a finding of neglect, upon further review by a supervisor, the Division issued a letter to X.H. on April 9, 2007 determining that neglect was substantiated. X.H. filed an administrative appeal. The matter was referred to the Office of Administrative Law. By consent of the parties, the ALJ determined the matter on the documentary record as we have previously discussed.
The ALJ determined that the Division failed to meet its burden of proof. Analyzing the circumstances that led to the injury, the ALJ noted that X.H. "took the reasonable precaution of placing her ten month old child, whom had never exhibited the ability to flip over in his baby tub, in a baby tub designed to prevent accidental drowning. She commenced to drain the water from the tub." The ALJ therefore reasoned that X.H. "could not foresee that N.L. would in that brief time she left him overturn in his baby tub completely upside down into the draining water." The ALJ qualified her findings by noting that the precautions X.H. took "should not be misinterpreted as my acquiescence to a concept that it is permissible to leave a child unattended in a bathtub or a baby tub."
The Division took exception to the ALJ's initial decision. After considering the submissions of both parties and the entire record, the Director rejected the ALJ's initial decision and affirmed the Division's substantiation of neglect.
The Director found that X.H. failed to take the cautionary actions of supervision that were available to her, and she did not leave the child unattended due to any exigent circumstances.
X.H. could have taken N.L. with her into the kitchen, she could have requested her husband's assistance, or she could have waited until the bath was complete and all of the water was gone before going to prepare the bottle. Instead, she intentionally left the child unattended for no justifiable reason. She rejected the notion that X.H. could not have foreseen that N.L. would turn over because he had never done it before. An objective standard applies. The medical records reflect that N.L. had normally developed motor skills for a ten-month-old child. He was capable of turning over in both directions. A reasonable person would have known this and would have foreseen the potential for exactly what happened.
The Director noted that the risk to a young child left alone in a bathtub is extreme. A baby can drown very quickly in a relatively small amount of water. She noted that N.L. "was injured to the point that he stopped breathing as a result of being submerged in the water." The Director further found that "X.H.'s actions of utilizing a baby bathtub and draining the tub are the acts of someone who is aware of the inherent dangers of her choice; this fact ...