On appeal from the Division of Youth and Family Services, Department of Children and Families, Agency Docket No. AHU 07-716.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Yannotti.
T.B. appeals from a final determination of the Director of the Division of Youth and Family Services (Division), dated March 30, 2009, which affirmed the Division's finding that T.B. had neglected her child and ordered that her name remain upon the Division's Central Registry pursuant to N.J.S.A. 9:6-8-11. We affirm.
The following procedural history and facts are pertinent to our decision. On April 27, 2007, the Division informed T.B. that it had substantiated a finding that, as a result of T.B.'s actions, T.B.'s child was an "[a]bused or neglected child[,]" as that term is defined by N.J.S.A. 9:6-8.21(c)(4)(b). T.B. filed an appeal challenging the Division's finding, and the Division referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).
The evidence presented at the OAL hearing established that in March 2007, T.B. and her son were residing in a home with her mother and stepfather. T.B. and H.B. lived downstairs in the house, and H.B. was able to move freely between his room and the space in the house occupied by his grandparents. The grandparents assisted T.B. with child care three or four nights a week and, at times, on weekends. T.B.'s mother worked during the day and T.B.'s stepfather worked at night.
On Sunday, March 25, 2007, T.B. and H.B. spent the day with her sister at her sister's house. Between 7:00 and 7:30 p.m., T.B. returned home with H.B. The child had fallen asleep in the car. T.B. observed her mother's car in the driveway. T.B. assumed her stepfather had gone to work. T.B.'s mother had been ill and T.B. thought her mother was upstairs sleeping. T.B. did not know, however, that her mother had gone with her stepfather to New York City. T.B. put H.B. to bed and she received a phone call from a male friend, who told her he was outside. T.B. left the house to have dinner with her friend.
H.B. woke up and found himself alone in the dark house. He walked across the street to a neighbor's house. T.B.'s residence is located on a corner intersection, where the speed limit is twenty-five miles per hour. The police were called and H.B. told the officers that he went to the neighbor's house because he could not find his mother. The police left the child in the neighbor's home and went to T.B.'s residence. No one was there.
Around 9:30 or 10:00 p.m., T.B. returned home with her friend. She was alarmed when she saw the police, believing that something had happened to her mother or stepfather. When T.B. learned that H.B. had walked across the street to the neighbor's house, she became very upset and began to cry. T.B. informed the officer that she had assumed that her mother was home, and admitted that she did not speak with her before she went out. H.B. was reunited with his mother. He was happy to see her, and stated, "[w]here were you? I thought you went to heaven."
The police reported the incident to the Division, which investigated the matter. The caseworker prepared an in-home case plan, which addressed the incident in order to ensure that it did not recur. T.B. and the grandparents signed the care plan. The Division's caseworker found that neglect had been substantiated on the basis of inadequate supervision. The caseworker also found that H.B. was at low risk for abuse or neglect, and determined that safety interventions were not warranted.
The ALJ filed an initial decision in the matter dated January 2, 2009. The ALJ concluded that the Division failed to establish that H.B. was an "[a]bused or neglected child[,]" as that term is defined in N.J.S.A. 9:6-9.21(c)(4)(b). The ALJ stated that the Division failed to meet its burden of proving that T.B. had committed gross and wanton negligence by acting in reckless disregard for H.B.'s safety. The ALJ wrote that gross or wanton neglect requires a finding that a parent's conduct was reckless and in disregard [of] the safety of her child and not just an inadvertent mistake. Here, T.B. made an unfortunate mistake in not checking [with] her mother before leaving, which the police and [the Division] concluded is not likely to happen again. Neither [the police officer nor the caseworker] ever doubted that T.B.'s explanation that she was sure that her mother was in the house when she left. The facts that T.B.'s mother's car was in the driveway and the stepfather always goes to work in New York alone further support T.B.'s explanation. According to [the Division's] own documents, there were no safety issues and no risk factors associated with the T.B. household. Rather, they were a loving family that showed genuine concern for each other and tried to help each other by sharing the care for H.B.
The Director reversed the ALJ's initial decision. In her final decision dated March 30, 2009, the Director stated that the evidence presented at the hearing clearly established that T.B. had neglected H.B. during this incident. The Director stated that T.B. ...