On appeal from the Division of Youth & Family Services, Department of Children and Families, Docket No. AHU # 07-310.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
M.A., a special education teacher, appeals from the May 19, 2010 final decision of the Acting Commissioner of the Department of Children and Families (DCF), finding that she had neglected D.G., a student in her class, within the definition of N.J.S.A. 9:6-8.21(c)(4)(b). We reverse.
We derive the following facts from the record developed before the Administrative Law Judge (ALJ). On November 27, 2006, sixteen students and thirteen staff members left a school for children with developmental disabilities in Bergen County on a class trip to see a play in New Brunswick. They traveled by bus. M.A. and her two teacher assistants were in charge of their class of six students, which included D.G., a six-year-old child who was autistic and functionally non-verbal. Students were not assigned seats on the bus, and M.A. sat in the back with the teacher assistants and the students in their class.
At approximately 11:00 a.m., the bus stopped for lunch at a fast-food restaurant in New Brunswick. There, M.A. sat with three of her students and a child from another class. Her two assistants sat at a nearby table with the three remaining students, including D.G. When the group started to get ready to board the bus, two children at M.A.'s table began fighting over a toy, which led to a "major tantrum" by another student, S., making it difficult to get him on the bus. Finally, M.A. and the four children at her table got on the bus, the last of the group to board. Because all the seats in the back were taken, M.A. took an empty seat up front. The bus driver asked if all children were on the bus. The head teacher asked her teachers the same question. M.A., assuming that her two assistants had brought the three children who had eaten with them onto the bus, answered "yes" without performing a head count. School policy required that the teacher and the teacher assistants perform a head count during such a transition, but neither M.A. nor her teacher assistants conducted one at this time.
When the bus arrived at the theater, which was less than two miles from the fast-food restaurant, M.A. realized that D.G. was missing. She immediately called the restaurant and discovered that D.G. was safe and being cared for by the staff. The bus driver and M.A. hurried back to the restaurant and found D.G. calmly eating fries. They took him to the theater where he was reunited with the group and watched the play.
After the school reported the matter to the Division of Youth and Family Services on the day of the incident, the Institutional Abuse Investigation Unit (IAIU) of DCF began an immediate investigation. D.G. was examined and showed no signs of injury, and his mother reported that he had not seemed at all distressed when he returned from school that day. Both of M.A.'s teacher assistants, when interviewed, acknowledged that they were required to do a head count but failed to do so, and both accepted some responsibility for the child being left at the restaurant. M.A. received a written reprimand for violation of school policy and was switched from D.G.'s class to another class for about two weeks.
The IAIU investigator also interviewed the manager of the fast-food restaurant, who reported that shortly after the school group left, she had noticed a young boy alone playing with a toy. When the manager spoke to the child, he did not reply but did not seem afraid. Since she did not know the name of the school group, the manager had her staff call the police to report the lost child, then she gave the child some fries and sat with him to keep him company. Within ten or fifteen minutes from the time the group left, a teacher called looking for the boy, and subsequently retrieved the child before the police arrived.
After interviewing all involved, the IAIU investigator found that D.G., by being left unsupervised at the fast-food restaurant, had been placed at substantial risk of harm. The IAIU concluded that, pursuant to N.J.S.A. 9:6-8.21(c), M.A. had been negligent due to her failure to provide adequate supervision to her student.
M.A. appealed the Division's substantiation of neglect to the Office of Administrative Law, where the matter was tried on stipulated facts and some limited testimony. M.A. took responsibility for the incident, acknowledging that she should have done a head count when she got to the bus, rather than assume that her two teacher assistants had brought the three children they had sat with at lunch to the bus. The Division argued that M.A.'s failure to follow the proper procedure of taking a head count amounted to neglect due to inadequate supervision. In her legal analysis, the Administrative Law Judge (ALJ) determined that M.A. was not "reckless or wanton but . . . she was neglectful." Consequently, the ALJ concluded that M.A. placed the child at substantial risk of harm "by failing to exercise ordinary care" and affirmed the agency's finding of neglect.
The Acting Commissioner adopted the ALJ's conclusion that M.A. was negligent under N.J.S.A. 9:6-8.21(c)(4) but rejected her analysis that M.A. was not wanton ...