On appeal from the Division of Youth & Family Services, Department of Children and Families.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2011
Before Judges Parrillo and Grall.
A.S. appeals from a final decision of the Division of Youth and Family Service (DYFS) that determined she had neglected her three-year-old child, S.S., by leaving her alone for thirteen minutes in a car parked outside a B.J.'s store while she went inside to buy groceries. For the following reasons, we reverse.
The essential facts are not in dispute. On July 28, 2007, A.S. drove with S.S. in the family minivan to a nearby B.J.'s Wholesale Warehouse in Ocean Township to purchase a few last-minute items for a barbeque her family was hosting. B.J.'s is a large warehouse store with windows only on the front entrance doors and is located in a safe area. It was daylight and the temperature was around eighty-six degrees.
When A.S. arrived, she parked her car in the front row of parking spots, about fifty feet from the store entrance. While it was her intention to bring S.S. into the store with her, A.S. relented after S.S. repeatedly begged her to stay in the car and continue watching the movie on the car's DVD player. Reasoning that she would be in the store for only a brief time, A.S. took the keys out of the ignition of the 2007 Honda Odyssey, used the vehicle's automatic start feature to start the car so that the air conditioning remained on, and then locked the door with the windows closed.*fn1 A.S. left S.S. fastened into her car seat, watching her DVD, and proceeded into the store.
Soon after she entered, a customer reported to a store employee that a child was alone in a vehicle in the parking lot. At around 11:15 a.m., the employee made an announcement over the store's P.A. system giving the license plate and type of vehicle and asking the owner of the vehicle to come to the service desk. The employee then called her manager, who went outside to inspect the vehicle. When there was no response, the store employee made another announcement three minutes later and, once again, no one responded. The police were then contacted at 11:20 a.m.
Officer Jason Lester of the Ocean Township Police Department responded to the call, arriving at the B.J.'s parking lot at 11:24 a.m., where he observed S.S. in the minivan secured in her car seat, with the windows up and doors locked. Lester immediately tried to open the door using a "lock out tool" consisting of a four-foot iron rod as well as a plastic wedge but was unsuccessful. Approximately four to five minutes after the officer's arrival - around 11:28 a.m. - A.S. returned to the vehicle, surprised to see Lester and the store employees there. After Lester explained their presence, A.S. opened the vehicle and Lester pulled S.S. out of her car seat and handed her to the store manager. S.S. appeared calm, "wasn't in danger," and the air conditioning was running in the car. When Lester asked S.S. what she was doing, she responded that "she was just waiting for her mother to come out." Then, Lester placed A.S. in handcuffs and in the back of his squad car for a short time. Afterwards, he removed the cuffs from A.S., assisted her out of the patrol car, warned her of the dangers of leaving a child alone in the car, and allowed her to take S.S. home. Lester estimated a total of thirteen minutes were unaccounted for.
Lester subsequently referred the matter to DYFS and an agency worker, who interviewed A.S. the next day, issued a report assessing risk to S.S. as low, but recommending that DYFS substantiate the neglect finding against A.S. based on a number of factors including A.S.'s admission of guilt and the dangers involved with leaving an unattended child in a car in warm weather. Ultimately, DYFS substantiated neglect against A.S. under N.J.S.A. 9:6-8.21c(4)(b), but no criminal charges were filed.
A.S. appealed the finding of substantiated neglect and the matter was transferred to the Office of Administrative Law (OAL), where a contested hearing was held on June 15, 2010. On August 30, 2010, the Administrative Law Judge (ALJ) issued an initial decision concluding that, while A.S. was an "excellent mother" and an "otherwise fit and responsible parent," nevertheless in this "isolated incident," A.S. failed to exercise a minimum degree of care by being aware of the dangers of leaving her child in the minivan and that A.S.'s actions rose to the level of willful or wanton misconduct that constituted gross negligence. Consequently, the ALJ recommended upholding the Division's finding of substantiated neglect. On November 29, 2010, DYFS issued its final decision, affirming the ALJ's initial decision, which substantiated child neglect, and consequently, placed A.S.'s name on the Child Abuse Central Registry pursuant to N.J.S.A. 9:6-8.11.
On appeal, A.S. argues DYFS erred in its application of the law to the facts and its determination of substantiated child neglect was therefore unsupportable. We agree.
Our review of a final determination of an administrative agency is limited. We "defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Thus, we are bound to uphold an agency's decision "unless there is a clear showing that it is arbitrary, capricious or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). However, we are "in no way bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer Affairs of Dep't of Law & Public Safety, 64 N.J. 85, 93 (1973). "[I]f an agency's statutory interpretation is contrary to the statutory language, or if the agency's interpretation undermines the Legislature's intent, no deference is required." Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008) (quoting In re N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997) (internal quotation marks omitted)). ...