On appeal from the Department of Children and Families, Docket No. AHU 07-1397.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
M.D. appeals from the June 3, 2011, final decision of the Director of the Division of Youth and Family Services, Department of Children and Families, finding that she had neglected her five year old daughter, Amy, and eight year old son, Bill,*fn1 pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), when on July 13, 2007, she "allowed" her 12 year-old son, Chris, to be alone with them "on multiple occasions when she was aware of a history of sexual behaviors between them[.]" We reverse.
We derive the following facts from the record developed before the Administrative Law Judge (ALJ). M.D. and her husband have seven children. The oldest is Chris, who was born in 1994. On November 14, 2006, M.D. was out of the house and the children were being cared for by her mother and father. M.D.'s husband was away on a business trip at the time. When M.D. returned home that day, Amy, then four years old, told her that Chris had touched her and Daniel, then seven years old, in a sexually inappropriate manner. M.D. called a local psychologist for advice who referred her to the Center for Protection of Children at a local hospital. M.D. was told to contact the county Prosecutor's Office and did so.
That evening, local police came to the house and representatives from the Division of Youth and Family Services
(DYFS or Division) arrived to interview family members. No charges were brought against Chris at that time, and M.D. and her parents executed a "case plan" two days later in which they agreed not to allow any unsupervised contact between Chris and his siblings.
M.D. and her family were "very cooperative" with DYFS and sent Chris for therapy and instituted a number of "rules" to insure the safety of the children. For example, Chris was not permitted to use the bathroom near the girls' bedrooms, but had to use the bathroom in the master bedroom; he was not permitted in anyone's bedroom, nor was he permitted to have the other children in his bedroom, without an adult present; and he could not shut the door to his own bedroom unless he were changing.
M.D. spoke with Chris's therapists and DYFS case workers from time to time and observed that Chris was depressed and feeling isolated from the family. Chris's principal therapist told M.D. that because it was impossible to supervise Chris at all times, given the size of the household, it was important to instill in Chris an obligation to "follow the rules" which had been developed over the course of family therapy sessions. He also advised M.D. that she had to "build . . . trust and to increase his responsibilities a little bit at a time[.]"
Accordingly, in May 2007, M.D. on a few occasions would leave Chris and the older siblings, including Bill, then eight years of age, Robert, twelve years of age, and Meg, nine years of age, in the house while she would run a brief errand. She did not leave Amy and the younger children in the house, however. During these few occasions, nothing improper occurred, according to M.D.
On July 13, 2007, M.D. took all the children, except Meg, who was in day camp, to the local pool and returned home with them in ...