NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.K

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1952-07T21952-07T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

S.K.,

Respondent-Appellant.

___________________________________

 

Submitted February 11, 2009 - Decided

Before Judges Waugh and Newman.

On appeal from a Final Decision of the Department of Human Services, Division of Youth and Family Services, Docket No. AHU 06-196.

Legal Services of Northwest Jersey, attorneys for appellant (Andrea L. Strack, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Rebecca A. Glick, Deputy Attorney General, on the brief).

PER CURIAM

Following a hearing, an Administrative Law Judge (ALJ) found that the Division of Youth and Family Services (DYFS) had not sustained its burden of proof that appellant S.K. had committed child neglect of B.S., Jr. and replaced the finding of substantiated child neglect with a finding of unfounded. The Director of DYFS did not accept the ALJ's recommendation and determined that S.K.'s neglect of B.S., Jr. was substantiated. S.K. appeals. We now reverse.

The events surrounding the report of neglect involving S.K. and her care and supervision of B.S., Jr. took place on September 8, 2003. DYFS accepts the factual discussion as set forth by the ALJ, but comes to a different legal conclusion. We, therefore, quote extensively from the ALJ's recitation of the pertinent facts in connection with the charge of child neglect.

On September 8, 2003, S.K. operated a child care program from her Cokesbury Road home in Clinton Township with three small children entrusted to her care on that date.

Thomas DeRosa, a ten-year member of the Clinton Township police department, was dispatched to Cokesbury Road involving a call of a "small child wandering the street." Upon arriving in the area of 450 Cokesbury Road within "approximately ten minutes," DeRosa testified that he found the small child in the care of a Ms. Kimple and "the child seemed fine." DeRosa described Cokesbury Road as "a narrow two lane roadway" that "never" has "much traffic on this road." He affirmed in his testimony that traffic at the time was "minimal."

Mildred Alvarez was employed as a DYFS family service specialist at the time of the alleged incident. She conducted the investigation which substantiated neglect because a "child was found on the streets." Alvarez notes that the "time S.K. called police [was] not a factor" in her determination. During the course of her investigation when she inspected S.K.'s yard, Alvarez found the "latch still on the door" and the "fencing adequate." She described the fence as a "white picket fence without openings" and between "four to five feet high." She testified further that she could give "no explanation as to how the child came out." She found "no scratches, no bruises on the child."

Lynda Kimple testified that when she came upon the child "standing in the middle of the road" outside her house, she found the child "soiled" through his diaper. The child was "not crying" at the time. Kimple described the area as a "dangerous spot" with the south branch of the Raritan River running "behind her house." She estimated the distance from S.K.'s house to her house as approximately one quarter mile.

S.K. testified that on September 8, 2003, she had been providing children's day care services at her house and had been providing these services for twelve years. S.K. readily admits that she is not a licensed day care operation because she never has "more than five children" in her care at any one time. DCF did not take a position on the licensing issue at this hearing. S.K. proffered the name of [A.J.] as a high school senior who assisted her on September 8, 2003. However, the name of [A.J.] is not provided to any investigator or indicated in any report prior to this hearing. When asked during cross-examination why [A.J.'s] name was never mentioned to Ms. Alvarez, S.K. indicated that this was the first time such an incident occurred and that [A.J.] was "traumatized" and "shaking" and later sent home.

S.K. affirmed that her two acres of property is "almost entirely fenced in." Entrance to the children's play area is accessible through two doors/gates, each having double locks. S.K. testified that [A.J.] arrived to the house between 9:30 a.m. and 10:00 a.m. S.K. further testified that she and [A.J.] were outside with the children at the time S.K. went inside the hallway of her house to answer a telephone call. S.K. indicated that the telephone call, which involved the "pick up of another child," "took approximately one to two minutes" but "less than five minutes." She insisted that "she could see the children from an adjoining bathroom window." She also insisted that prior to the telephone call, S.K. saw eighteen month old B.S., Jr. go into a "log cabin structure" in the yard. After the telephone call, S.K. "called all the children" in order "to do diaper change." All responded except B.S., Jr. S.K. testified that she conducted a complete search of her "yard, back porch and her house." During her search, S.K. testified that her next door neighbor, Karen Donahue, told her that a neighbor "has the child, police already called and the boy already safe." S.K. estimated that approximately "fifteen to twenty minutes" elapsed from the time the child was seen entering the log cabin to Mrs. Donahue notifying S.K. that the child was safe and the police notified.

In the analysis of the facts, the ALJ quoted N.J.S.A. 9:6-8.21(c) which provides in relevant part:

"Abused or neglected child" means a child less than 18 years of age whose parent or guardian . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss of impairment of the function of any bodily organ . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof

. . . .

The ALJ pointed out that there is "a wide range of harmful conduct that all reasonable persons would characterize as abuse or neglect, regardless of the caregiver's intent." G.S. v. Dep't. of Human Servs., 157 N.J. 161, 180 (1990). This statute is applicable whenever a parent or guardian is aware of the dangers inherent in the situation and "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181.

It is noted that S.K. took necessary precaution to provide secure fencing around her yard and put double latches on both doors accessing the children's enclosed outside area in order to provide a safe play area for the children in her care. While acknowledging that it could not rely on any testimony that

A.J. was present at the time of the incident, the ALJ concluded that DYFS failed to show that S.K.'s conduct, neither when she entered the house to answer the phone nor during the search for B.S., Jr. after his disappearance, rose to the level of gross and wanton negligence, which was the standard to be applied under G.S. While S.K. made a decision to leave the children outside when she answered the phone call in her hallway, she maintained that she could see the children from the location of her phone inside the house for the short time period that she was inside. No one could explain how B.S., Jr. left the yard. On these facts and applying the gross and wanton negligence standard, the ALJ found that DYFS had not sustained its burden of proof by a preponderance of the credible evidence that S.K. committed neglect within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).

The Director of DYFS disagreed with the ALJ's recommendation that the finding of neglect be overturned. In doing so, she indicated that DYFS was not "necessarily required to either prove that S.K. could not see the children from inside the house or explain how the child got out of the fenced in yard." The crux of her decision was that S.K. chose to leave the children in the yard unattended. She rejected the conclusion of the ALJ that there was no showing that a cautionary act by S.K. would have prevented the probability of B.S., Jr. leaving S.K.'s yard. S.K., as the caretaker on the premises at the time of the incident, was the only person in a position to have done something to prevent B.S., Jr. from escaping or otherwise being placed at the risk of harm. She pointed out that S.K. could have either taken the children inside the house with her when she answered the phone or she could have chosen not to answer the phone at all. The Director recognized that "the court in G.S. indicated that the phrase 'minimum degree of care' refers to conduct which is grossly or wantonly negligent." Nonetheless, the Director relied on the following language from the Court's opinion which reads:

We simply remind DYFS and the courts that the inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger. When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law.

[Id. at 182.]

The crux of the Director's conclusion of substantiation of child neglect is based on S.K. leaving the children in the yard unsupervised which resulted in B.S., Jr.'s escape, although how it was accomplished was unexplained.

On appeal, appellant raises the following issues for our consideration:

POINT I: DYFS FAILED TO ISSUE A FINAL DECISION IN ACCORDANCE WITH THE TIME AND NOTICE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT, N.J.S.A. 52:14B-10 AND N.J.A.C. 1:1-18.8.

POINT II: DYFS' FINAL DECISION IS ARBITRARY, CAPRICIOUS AND UNREASONABLE; IT IS NOT SUPPORTED BY THE SUBSTANTIVE EVIDENCE; AND FAILS TO MEET THE EXPRESS PROVISIONS AND LEGISLATIVE INTENT OF N.J.S.A. 9:6-8.21 AND N.J.A.C. 10:129a-3.0.

PART A: ISSUES AND STANDARD OF REVIEW ON APPEAL.

PART B: LEGAL STANDARD - N.J.S.A. 9:6-8.21 AND N.J.A.C. 10:129a-3.0 REQUIRE A SHOWING OF BREACH OF MINIMUM DEGREE OF CARE USING A GROSS NEGLIGENCE STANDARD.

PART C: THE FINAL DECISION IS ARBITRARY, CAPRICIOUS AND NOT SUPPORTED BY CREDIBLE EVIDENCE.

PART D: PURSUANT TO N.J.S.A. 9:6-8.21 AND N.J.A.C. 10:129a-3.3 THE CREDIBLE EVIDENCE WARRANTS A FINDING OF "UNFOUNDED."

We address the decision on the merits that S.K. has raised in Point II.

In G.S. v. Dept. of Human Services, supra, 157 N.J. at 178, 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 the 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 in G.S. 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.

It is clear that the Director has not applied the correct standard in assessing the incident that occurred on September 8, 2003. Rather, the Director makes reference only to that portion of the G.S. decision referencing whether the harm "could have been prevented had the guardian performed some act to remedy the situation or remove the danger." Id. at 182. The cautionary act that the Director focuses on is that B.S., Jr. was unsupervised when S.K. decided to answer the phone located in the house's hallway.

However, the danger that S.K. had recognized was that the child should not be allowed to leave the outside play area. To that end, she had a four to five foot white picket fence with no openings and the gates on the fences were double latched. There was no testimony that the locks had been dislodged or that there were any openings or damage to the fence that would allow a child to exit the yard. Furthermore, there was no testimony that any child had ever been found wandering outside of the yard. Thus, a child who wanders from the yard was protected from danger by the type of enclosure that S.K. had installed.

We do not suggest that a child who once escapes from the yard is not exposed to a substantial risk of harm. Indeed, an eighteen-month-old child would be exposed to traffic, no matter how minimal, or any other environmental hazards, such as a nearby river, bridge or creek as described in the testimony. The point remains, however, that S.K. recognized the danger and provided for it. How B.S., Jr. performed some type of Houdini escape remains a mystery.

DYFS' contention that it could have been prevented had the child not been left in the yard unsupervised by either taking all the children into the house to answer the phone or not answering the phone at all does not translate into willful or wanton conduct or a reckless disregard for the safety of others. In any event, the Director's decision is nothing more than viewing the incident from the perspective of hindsight. As the Court in Foldi v. Jeffries, 93 N.J. 533, 547 (1983), commented,

In addition, we can conceive of few accidental injuries a child might sustain that could not have been prevented by closer supervision by his or her parents. Hindsight invariably will expose some slight oversight, some failure to take yet another precaution that somehow contributed to the child's mishap. No parent can do everything. If such claims were allowed, it would be the rare parent who conceivably could not be called to account in the courts for his or her conduct.

[Id. at 547.]

In Jeffries, the mother had her child in an area that was safe and secure. The child, nevertheless, wandered onto a neighbor's property and was bitten by the neighbor's dog. Id. at 535. In reviewing the standard that applied, the Court articulated the concept of willful and wanton misconduct in the following terms:

It must appear that the defendant with knowledge of existing conditions, and conscious from such knowledge that injury will likely result or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result.

[Id. at 549 (quoting from McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).]

The conduct here bears a striking resemblance to that of the mother in Foldi v. Jeffries. S.K. had children contained in an area that was safe and secure. There was no security breach that any investigator could identify. We fail to discern how S.K.'s answering the phone while the children remained in the yard from which vantage point she could still view the yard could amount to the willful and wanton misconduct that is the applicable standard in determining whether child neglect has taken place. Concluding that neglect was substantiated under the circumstances here was, in effect, applying a standard of strict liability.

We are satisfied that the Director has not applied the correct standard to the facts of this case and, therefore, the finding of substantiated neglect is reversed and replaced by a finding of "unfounded."

In view of our determination requiring a reversal, we need not address Point I that DYFS failed to issue a final decision in accordance with the requirements of the Administrative Procedure Act so that the ALJ's decision should be deemed adopted as the final decision of the agency.

Reversed.

 

Ironically, during the hearing, S.K.'s cell phone rang and the ALJ admonished her to turn it off. Obviously, the use of a cell phone could also have been a means to remain in the yard while speaking on the phone if at the time S.K. primarily used a cell phone.

(continued)

(continued)

12

A-1952-07T2

RECORD IMPOUNDED

February 25, 2009