On appeal from a Final Agency Decision of the Division of Youth and Family Services, AHU #06-131.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2010
Before Judges Wefing and Grall.
L.E. appeals from a Final Decision of the New Jersey Division of Youth and Family Services ("DYFS") that she committed an act of neglect with respect to her son R., then eighteen months of age. After reviewing the record in light of the contentions advanced on appeal, we reverse.
L.E. was thirty-one years of age at the time of the incident. She is a licensed clinical social worker, with a master's degree in social work, and works with transplant patients at Our Lady of Lourdes Hospital in Camden. Her husband, R.E., has a masters degree in business administration and is an assistant vice-president at Cooper University Hospital. Together, they have two children, R. and E., who is thirteen months older than R. R.E. has two other children, L. and D., both of whom reside with L.E. and R.E.
On December 17, 2002, L. and D. came home from school for lunch, and L.E. drove them back to school. R. and E. were also in the car, as were N. and J., two other children for whom L.E. was baby-sitting. After dropping L. and D. at school, L.E. drove to the Garden State Pavilion shopping complex to go to the Rack Room shoe store to purchase a pair of sneakers for herself. By the time she arrived at the store, all of the children with the exception of E. were sound asleep. She parked her car in front of the store. She made sure all of the sleeping children (who were all warmly dressed for winter) were securely buckled into their car seats, locked the doors to her car and, with E., went into the store.
The front of the store is made entirely of glass and there is a bench next to those front windows. L.E. got several pairs of sneakers and sat on the bench to try them on. She had a full view of the car, and the children in it, from that bench. They were out of her sight only once, for a brief moment, when she went to the rear of the store to get another pair. L.E. testified that she asked one of the clerks in the store to watch her car while she did so.
While sitting on the bench and trying on a pair of sneakers, she saw a police car pull up near her car and an officer get out of his patrol car. He approached her car and tried its handles. L.E. ran out of the store to find out what was happening.
She then learned that another woman who had been shopping in a nearby store returned to her car, which was parked next to L.E.'s, and observed R. alone, sleeping in the car. She called the police. While the woman testified she waited fifteen to twenty minutes for the police to arrive, other evidence in the record did not support that assertion. Her receipt for her purchase, for instance, was stamped 1:25 p.m. and the records of the police department showed the officer arrived at 1:38 p.m. The children in the car remained asleep for the entire time the police were at the scene.
The following day, the officer notified DYFS that R. had been neglected. A DYFS case worker went to the E.'s home on December 18 and spoke to L.E. The worker testified that L.E. was "very cooperative[,]... very upset, very remorseful." The record discloses no further investigation on the part of DYFS. On February 11, 2003, the DYFS case worker wrote to L.E., informing her that DYFS had received this report, investigated it, and "determined that child neglect had been substantiated." The letter informed her that DYFS was required to notify certain police departments of its conclusions and that information would be released in certain circumstances to parties conducting background screenings. The letter stated that if she wanted to appeal that decision, she should request a dispositional conference within twenty days. L.E. retained counsel who, on February 26, 2003, advised DYFS in writing that L.E. did wish to appeal and requested that a conference be scheduled. A DYFS representative responded on February 28, 2003, acknowledging receipt of his request and informing him that discovery would be sent to him.
Neither L.E. nor her attorney heard anything further for more than three years. On March 14, 2006, a DYFS representative wrote to L.E.'s attorney, inquiring whether L.E. still wished to pursue the matter. He responded that she did and requested her appeal be processed expeditiously. A hearing was not held until March 12, 2008, more than five years after the incident occurred.
By the time of this hearing, the officer who had first responded to the scene had retired and could not be located. Although his report was received into evidence, he could not be cross-examined with respect to its contents, portions of which L.E. insisted were inaccurate. In his absence, DYFS presented Police Officer John Moyer, who responded to the scene as a backup officer. He was not present when L.E. came out of the store and did not interview her. He did not prepare his own report and did not review and sign the report prepared by the initial officer. DYFS also presented the woman who summoned the police and the DYFS case ...