NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0010-05T30010-05T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

D.D.,

Respondent-Appellant.

____________________________________

 

Submitted May 16, 2006 - Decided June 13, 2006

Before Judges Skillman and Sabatino.

On appeal from New Jersey Department of Human Services, Division of Youth and Family Services.

D.D., appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joanne Leone, Deputy Attorney General, on the brief).

PER CURIAM

Appellant D.D. appeals from a final decision of the Division of Youth and Family Services (DYFS) that determined she had neglected her two-year old daughter A.D. by leaving her alone in a car parked outside a K-Mart store while she went inside the store to buy medicine.

In the late afternoon on February 6, 2001, appellant drove to a K-Mart store in a shopping mall in Westwood with her daughter A.D. in the back of the car in a car seat. Both appellant and A.D. were suffering from the flu at the time, and the purpose of appellant's stop at the store was to purchase Motrin. On the way to the store, A.D. fell asleep. Not wanting to wake her daughter or expose her to cold weather, appellant left her in the car when she went into the store. Appellant locked the car before leaving her daughter, but left a window open a quarter inch for ventilation. Although it was cold outside, the car was warm and A.D. was dressed in warm clothing and covered by a fleece.

After appellant went into the store, an off-duty Emerson police officer observed the child alone in the car and called the Westwood police department. Sergeant Reilly responded to the scene a minute or two later. After observing A.D. alone in the car, which was located towards the front of the parking lot close to the store, and determining by a license plate check that appellant was the owner of the car, Sergeant Reilly went into the K-Mart and had appellant paged. Appellant returned to her car a couple of minutes later and told Reilly that she had left A.D. in the car because A.D. had the flu and was sleeping. After Sergeant Reilly discussed the dangers of leaving a child alone in a car, appellant agreed that she had made a mistake and told Reilly "she would never do it again." Sergeant Reilly estimated that appellant returned to her car "within 10 minutes" of the initial call from the off-duty Emerson police officer. Sergeant Reilly also testified, on cross-examination, that there had been no kidnappings in Westwood "in a couple years."

The incident was subsequently reported to DYFS, which assigned a caseworker, Jennifer Romano-Nazzarese, to conduct an investigation. She went to D.D.'s house on February 8, 2001, where she interviewed appellant and her husband. Romano-Nazzarese subsequently concluded in a "referral response report" submitted on May 22, 2001 that the allegation of child neglect had been "substantiated" and recommended that the case "be closed."

On May 22, 2001, DYFS sent appellant a letter which informed her that its investigation had resulted in a determination that the allegation of child neglect had been "substantiated." The letter also stated:

Please be advised that under N.J.S.A. 9:6-8a, as amended August 1, 1997, the Division is required to send to local/State police certain identifying information regarding all substantiated incidents of child abuse and neglect in their jurisdiction. In addition, N.J.S.A. 9:6-8.10a authorizes the Division to identify perpetrators of child abuse or neglect to agencies, persons or entities who are mandated by statute to consider such information when conducting background screenings of employees, prospective employees, or volunteers who provide or seek to provide services to children. For certain employment, a substantiation of child abuse or neglect will result in automatic elimination from employment consideration.

Appellant was advised that she could appeal the finding of "substantiated" child neglect within twenty days.

Appellant filed a timely appeal. Nearly two years later, on February 26, 2003, an "Administrative Review Officer" issued a report of a "Regional Dispositional Conference Review" that affirmed the finding of child neglect against appellant. This determination was based solely on a paper review of the caseworker's report and contact notes and appellant's written submission to DYFS.

On March 19, 2003, appellant requested a contested case hearing before the Office of Administrative Law to challenge DYFS' finding that she had neglected her child. The hearing was conducted on March 14, 2005. Sergeant Reilly, Ms. Romano-Nazzarese and D.D. all testified at the hearing. The ALJ before whom the case was heard issued a recommended initial decision on April 28, 2005, in which he found that appellant had left A.D. unattended "for at least ten minutes," that "[t]here was no emergency that would require [appellant] to leave the child unattended" and that the child did not suffer any harm while she was in the car unattended. Based on these findings, the ALJ concluded that appellant had committed an act of child neglect within the intent of N.J.S.A. 9:6-8.21(c). In reaching this conclusion, the ALJ stated:

There is no evidence that would lead to the conclusion that the mother intended to harm the child. In fact, the evidence showed that A.D. was generally a well cared for child who was dressed warmly. [Appellant] stresses that she only left for a few minutes. She locked the car. She left the window open slightly. These actions only further illustrate that the mother was aware of dangers that could occur. Although the length of time [appellant] left the child unattended was disputed, that is of no moment. Leaving a two year old child unattended in a parked car, even for mere minutes, places the child at a risk of harm. There may be circumstances when that risk of harm is outweighed by a legitimate countervailing considerations. However, under the circumstances extant, there were none found to exist. As such, there is no basis for a reasonable prudent parent or guardian to leave the child unattended. I CONCLUDE that [appellant] failed to exercise a minimum degree of care when she left the child unattended. This failure to provide the child with proper supervision placed the child at risk of harm.

On June 12, 2005, Assistant Commissioner Cotton, the head of the Division of Youth and Family Services, issued a final decision that adopted the findings and conclusion of the ALJ's initial decision. In his decision, the Assistant Commissioner stated that "[appellant's] own verbal account of leaving A.D. unattended in a parked car, regardless of the amount of time, constitutes neglect as defined in N.J.S.A. 9:6-8.21 et seq."

Under N.J.S.A. 9:6-8.10, a person who has reason to believe that a child has been subjected to child abuse or neglect is required to report that suspicion to DYFS. The regulations adopted to implement the statute, see N.J.S.A. 9:6-8.15 and N.J.S.A. 9:6-8.72, require DYFS to evaluate the available information to determine whether that allegation is "substantiated," or "unfounded." N.J.A.C. 10:129A-3.3. Upon a determination that the allegation is "substantiated," the name of the person found to have committed child abuse or neglect and any identifying information are entered into a Central Registry maintained by DYFS. N.J.S.A. 9:6-11; N.J.A.C. 10:129A-3.4.

Although a substantiated report of child abuse or neglect is considered to be confidential, N.J.S.A. 9:6-8.10a(a), such a report may be released to any of the various entities and individuals listed in N.J.S.A. 9:6-8.10a(b), which include "[a] family day care sponsoring organization for the purpose of providing information on child abuse or neglect allegations involving prospective or current providers or household members[,]" N.J.S.A. 9:6-8.10a(b)(10); "[a]ny person or entity mandated by statute to consider child abuse or neglect information when conducting a background check or employment-related screening of an individual employed by or seeking employment with an agency or organization providing services to children," N.J.S.A. 9:6-8.10a(b)(13); and "[a]ny person or entity conducting a disciplinary, administrative or judicial proceeding to determine terms of employment or continued employment of an officer, employee, or volunteer with an agency or organization providing services for children[,]" N.J.S.A. 9:6-8.10a(b)(14). Moreover, all day care centers are required to check with DYFS to determine whether their employees have been the subject of substantiated abuse or neglect findings, N.J.S.A. 30:5B-6.4(a), and to discharge any employee who is thus identified, N.J.S.A. 30:5B-6.4(c). In addition, a substantiated finding of child abuse or neglect in the Central Registry may be considered if a person applies for adoption, N.J.S.A. 9:3-54.2b, or to be a foster parent, N.J.A.C. 10:122C-2.1(d)(5)(vii).

We have previously concluded that the "reputational loss" to a person from the dissemination of information in the Central Registry is "enormous," and that it may prevent a person from becoming employed in "a vast array of education-related jobs." In re E. Park High Sch., 314 N.J. Super. 149, 162-63 (App. Div. 1998). Consequently, the inclusion in the Central Registry of the name of a person interested in a position in an educational or child care field constitutes "a kind of Sword of Damocles poised above [that person's] head." Id. at 163; see also Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59 (App. Div. 2005); N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005); N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390 (App. Div. 1998).

Appellant's name was included in the Central Registry based on a "substantiated" finding that she committed an act of "neglect" upon A.D. by leaving her in the car unattended while appellant went into the K-Mart to purchase medicine. This finding was based on N.J.S.A. 9:6-8.21(c)(4)(b), which provides in pertinent part:

Abused or neglected child means . . . a child whose physical, mental or emotional condition . . . is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision . . . by

. . . allowing to be inflicted harm, or a substantial risk thereof[.]

In G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999), the Court held:

The phrase "minimum degree of care" [in N.J.S.A. 9:6-8.21(c)(4)(b)] denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.

The Court also stated that "the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court held that this standard had been satisfied in G.S., where a parent had given her autistic child a full bottle of medication, which was seventy-eight times the indicated dosage.

Although the ALJ took note of the standard set forth in G.S., he did not find that appellant was "grossly or wantonly negligent" in leaving A.D. unattended in the car while she went into the K-Mart to buy medicine. Rather, the ALJ found that appellant's conduct did not constitute the degree of care expected of a "reasonable prudent parent." A failure to exercise reasonable prudence constitutes simple negligence, not the gross and wanton negligence that G.S. requires to establish child neglect within the intent of N.J.S.A. 9:6-8.21(c)(4)(b). Cf. Buono v. Scalia, 179 N.J. 131, 138 (2004) (noting that for a parent's conduct to be willful or wanton, "a parent must be 'conscious . . . that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, [the parent] consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result.'" (quoting Foldi v. Jeffries, 93 N.J. 533, 549 (1983)).

Moreover, even though the ALJ's findings would suffice to support a conclusion that appellant was negligent in leaving her child unattended in the shopping mall parking lot, those findings could not support a conclusion that her conduct rose to the level of gross and wanton negligence. The undisputed facts, as found by the ALJ, were that appellant left A.D. in the car unattended for approximately ten minutes, that A.D. was asleep in a car seat when appellant got out of the car, that the car was warm and A.D. was dressed in warm clothing, and that appellant locked the car with the window cracked open for ventilation before she went into the store to purchase medicine. As appellant subsequently recognized, she exercised poor judgment in leaving her child unattended in a parked car for ten minutes. If appellant had left A.D. unattended for a longer period of time or under circumstances creating a substantial risk of harm, her conduct could be found to be gross and wanton negligence. See G.S., supra, 157 N.J. at 182. However, we conclude that appellant's conduct, as found by the ALJ, did not create a sufficiently substantial risk of harm to A.D. to justify a conclusion that appellant was grossly and wantonly negligent. We stress that this result is confined to the particular facts of this case, and we do not discourage or foreclose the Division from seeking appropriate relief under N.J.S.A. 9:6-8.21(c) where children have been left unattended by a parent in a parked car in more egregious circumstances.

Accordingly, DYFS's final decision finding that appellant committed an act of neglect upon A.D. is reversed, and DYFS is directed to remove her name from the Central Registry.

 

Despite efforts by DYFS at the hearing to suggest that A.D. could have been left home with D.D.'s mother, the Administrative Law Judge (ALJ) who heard the case made no such factual finding. Nor did the ALJ identify any other relatives, neighbors or babysitters who could have looked after A.D.

At the time appellant was being investigated for an act of child neglect, there was an additional investigative category of whether the allegation was "not substantiated." N.J.A.C. 10:129A-3.3 was amended and effective January 18, 2005, this category was eliminated. See 36 N.J.R. 4617(a) (October 18, 2004) and 37 N.J.R. 282(a) (January 18, 2005). The ALJ did not apply the repealed "not substantiated" category in his June 12, 2005 final decision, but noted that the applicability of that category would have no bearing on the decision anyway.

Appellant was not the subject of any prior or subsequent reports to DYFS of abuse or neglect.

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11

A-0010-05T3

RECORD IMPOUNDED

June 13, 2006