On appeal from a Final Decision of the Department of Children and Families, Institutional Abuse Investigation Unit, AHU #07-421.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 18, 2009
Before Judges Cuff, C.L. Miniman and Waugh.
E.V., a caregiver at a licensed day care facility, appeals from a final decision of the Department of Children and Families, Institutional Abuse Investigation Unit substantiating neglect of an eighteen-month old child in her care. E.V. contends that her admittedly negligent conduct did not rise to the level of conduct required to substantiate this finding. We disagree and affirm.
The facts are not in dispute; the legal significance of those facts is sharply contested. We quote the facts found by the Administrative Law Judge (ALJ) and adopted by the agency in their entirety:
E.V., who had been working at the YMCA Daycare Center since 1999, was, on the day of the incident, November 17, 2006, working as a teacher. She usually worked a split shift, spending the morning at a Grand Street location filling in for other teachers during their breaks, then would do a mid-day bus run, and return to Grand Street at approximately 3:00 p.m. and work with infants until about 6:00p.m.
On the day of the incident, E.V. was assigned to the eighteen-month-old class (a group [older] than the infants she usually worked with) as a result of the last-minute absence of the teacher normally assigned to that group. E.V. requested not to be given the assignment of the eighteen-month-old class on that day because she was somewhat distressed by the failing health of two of her family members. Nonetheless, she was given the assignment by Ms. Taylor.
Assisting E.V. with the eighteen-month-old group was A.S., a fifteen-year-old teacher's aide who had only recently started working for the YMCA after school.
A.S., during the month that she worked for the YMCA prior to the incident, usually worked with Nicole, the absent teacher, whom she assisted with changing the diapers of the children along with feeding them a snack and bringing them outside to play.
On the day of the incident, A.S. indicated that she and E.V. dressed the children with their coats and hats and took them to the small playground adjacent to the gymnasium of the YMCA. A.S. indicated that she did not do a head count of the children when they took them outside because that was usually done by Nicole. A.S. did not know whether E.V. had done a head count.
According to records submitted by DCF/DYFS (P-9) there were seven children in the eighteen-month-old group. According to A.S. it was "quite a process to get them dressed and diapered and changed, etc." before taking them out to the playground. The children were in the playground for approximately forty-five minutes when they were brought back inside. A.S. did not do a head count and was unsure if E.V. had done one. It was not until approximately twenty to twenty-five minutes after the children were brought in from the playground that A.S. was told that "Sarah" had been left on the playground.
Matthew Sheehy arrived home from work somewhere around 4:30 p.m. and saw one of the neighborhood children who lived in the residential area go into the fenced in playground to guide Sarah, who ...