March 8, 2010
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, PETITIONER-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 worker who received the report and investigated it. L.E. testified, as did two character witnesses, one of whom was the mother of one of the children left in the car.
Following the hearing, the administrative law judge issued a written decision, setting forth his reasons for concluding that DYFS had "failed to meet its burden of proving by a preponderance of the credible evidence that L.E. committed an act of negligence to the degree required to substantiate a finding of neglect."
The Director, however, rejected this decision. She concluded that "L.E. failed to take the cautionary actions of supervision that are expected" and created a "substantial risk of harm" to R.*fn1 This appeal followed.
The term "neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4) as a child under the age of eighteen whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent... to exercise a minimum degree of care... (b) in providing the child with proper supervision or guardianship, [or] by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof....
The Supreme Court has interpreted this statute and enunciated the standard encapsulated within the phrase "minimum degree of care."
[T]he phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result....
[A]ctions taken with reckless disregard for the consequences also may be wanton or willful....
[T]he difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision....
Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. [G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 178-79 (1999) (citations omitted).]
The administrative law judge concluded his opinion in the following manner:
Mrs. E. was guilty of some degree of negligence, but there is no evidence that could support a finding that her lapse in judgment was done in any sense of consciousness of any likelihood of injury or any reckless indifference to the likely or even probable consequences.
The Director rejected this conclusion and found that L.E.'s action created a substantial risk of harm to R. and thus constituted neglect.
Within her opinion, the Director criticized the administrative law judge for relying on an unpublished opinion of this court, New Jersey Div. of Youth & Family Servs. v. D.D., No. A-0010-05 (App. Div. June 13, 2006), certif. denied, 188 N.J. 490 (2006). We do not find it necessary to parse the opinion of the administrative law judge to determine whether his opinion constituted an analysis of the various factors we pointed out in D.D. or whether it relied upon D.D. In the interim, we have had occasion, in a published opinion, to address whether a parent's conduct constituted neglect. New Jersey Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159 (App. Div. 2009), the facts of which are, in many ways, closely analogous to the present matter.
The defendant in J.L. was married, with two sons, the oldest five, the younger, three. Id. at 161. The family lived in a condominium complex that had a recreation area. Ibid. On the day in question, after engaging in a water fight, the older boy needed a dry shirt, and his younger brother needed to use the bathroom. Ibid. J.L. let them return to the family's condominium alone. Ibid. The boys did not have to cross a street to do so, and J.L. could see their entire journey. Ibid. She remained at the recreation area, chatting with a friend. Ibid. When the boys entered their apartment, however, the door closed behind them and since the knob was equipped with a child-proof cover, they could not open the door to get out. Id. at 161-62. Distressed at this development, the older boy called 9-1-1 at 5:38 p.m., and the police arrived at 5:48 p.m. Id. at 162. J.L. eventually gathered up the boys' belongings from the pool area and returned to the apartment, arriving at 6:11 p.m. to find the police there. Ibid. The police notified DYFS that evening; it investigated the incident and determined that abuse had been substantiated. Id. at 162-63. J.L. appealed that determination; the administrative law judge concluded that J.L.'s conduct did not meet the threshold set forth in G.S., supra, 157 N.J. 161, but the Division reversed, finding that the children's "physical, mental, and emotional condition was in imminent danger of being impaired as a result of J.L.'s actions[.] Further, leaving 5- and 3-year-old children alone unsupervised for 30 minutes or more is so serious that it rises to the level of risk of harm defined by the statute...."
Id. at 166.
J.L. appealed to this court, and we reversed. We rejected the argument put forth by DYFS that if an emergency had occurred, the children would not have been able to escape or seek help. Id. at 168-69. We noted that "the standard is not whether some potential for harm exists. A parent fails to exercise a minimum degree of care when she is 'aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to the child.'" Id. at 168-69. (quoting G.S., supra, 157 N.J. at 181.
We noted in our opinion that "the investigating officer found the matter to be sufficiently inconsequential that she delayed notification to DYFS by six hours...." Id. at 168.
Here, the investigating officer apparently did not consider the matter sufficiently serious to require notification the same day; he did not contact DYFS until the following day. Further, the investigation which DYFS undertook in J.L. far exceeded what DYFS perceived to be warranted here. In J.L., the DYFS worker contacted the boys' school and day care center and their pediatrician. Id. at 162. She conducted three different assessments, on safety, risk and the strengths and needs of the children. Id. at 162-63. Here, the DYFS worker only interviewed L.E., evidently seeing no need to proceed any further. There is no indication in the record that she even contacted the mothers of the other two children who were in the car. Clearly DYFS perceived no risk of harm to the children; it waited silently for three years after L.E. said she wished to challenge the finding of neglect and a hearing was not held until more than five years had passed from the incident.
Here, L.E. made sure that the children were securely buckled into their seats and that they were warmly dressed. The interior of the car was warm. She locked the car and took the keys with her. She placed herself at a vantage point from which she could observe the car without any obstruction or hindrance. There is nothing in the record which would support the Director's conjecture that one of the children might have been able to get out of a buckled seat and release one of the younger children or open a car door. We are unable to conclude that L.E. acted "with reckless disregard" for the children's safety. G.S., supra, 157 N.J. at 179. Her actions may have been careless and heedless, but there is a vast gulf between carelessness and recklessness.
We note that the notification to L.E. contained the same pre-hearing notification that her name had been placed on the Central Registry which we questioned in J.L., supra. L.E. does not raise a similar challenge, and thus we have no occasion to comment upon its propriety.
The determination under review is reversed.