New jersey department of children and families division of youth and family services - v. Z.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2733-08T2

New jersey department of

children and families,

division of youth and family

services,

Petitioner-Respondent,

v.

 

Z.p.,

 

Respondent-Appellant.

______________________________

December 7, 2009

 

Argued November 10, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Division of Youth and Family Services, Department of Children and Families,

Docket No. AHU 07-583.

Sara K. Walsh, Senior Staff Attorney, argued the cause for appellant (Central Jersey Legal Services, Inc., Mercer County Division, attorneys; Ms. Walsh, of counsel and on the brief).

Jennifer V. Hoff, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Hoff, on the brief).

PER CURIAM

Appellant Z.P. appeals from the final decision of the Director of the New Jersey Division of Youth and Family Services (DYFS), substantiating the charge of child neglect against her, and including her name in the DYFS Central Registry. We affirm.

The essential facts are not in dispute. On June 21, 2005, appellant left her two minor children, two-year-old son and five-year-old nephew, unattended in her automobile in a large outside parking lot at the Pathmark on Shank Road in Freehold, adjacent to Route 9. An observer telephoned the Freehold Township Police at 5:29 p.m., and the police arrived at the scene approximately five minutes later. It is unknown how long the children were in the vehicle prior to being noticed, but the observer watched the unattended children for five minutes prior to calling the police.

At that time of day, it was about eighty-five degrees Fahrenheit, and the parking lot was "very busy." The officer who arrived at the scene, Detective John Catron, observed that the doors were unlocked and the rear windows were completely open, such that he could have "reached in and pulled the child out of it[.]" Appellant's vehicle was in the third spot from the Pathmark, however, the view from the interior of the store was blocked by other vehicles parked between appellant's vehicle and the store, as well as by signs, banners, and stocked-up store items in front of the store windows. The children were asleep at the time Catron arrived at the scene.

Roughly five minutes after Catron arrived, appellant returned to her vehicle. She told Catron that she went inside "to get some quarters[,]" although she exited the store with at least three Pathmark shopping bags, and in a later interview, claimed she went into Pathmark to purchase diapers for her son.1 Just before arriving at the store, appellant dropped off her grandmother, who had been in the vehicle with the children. Both children were uninjured in the incident, in no distress, and in good health.

When asked why she left the children in the car, appellant replied that her son had fallen asleep and she told her five-year-old nephew to watch him while she was in the store. In a subsequent interview with a DYFS caseworker, however, appellant explained that she had undergone a hemorrhoidectomy only five days before the incident, and was in too much pain to carry the children into the store. Appellant was allowed to take the children home following the incident.

Catron contacted DYFS and the agency assigned a Special Response Unit (SPRU) caseworker, who investigated the matter and created a safety plan for appellant to ensure ongoing supervision of her children. In an interview with the SPRU

caseworker, appellant admitted that she left the children unattended in the vehicle.2

Based on its investigation, DYFS determined that child neglect had been substantiated and informed appellant that her name would be listed in the DYFS Central Registry, N.J.S.A. 9:6-8.11. Appellant filed a timely appeal, and the matter was transmitted to the Office of Administrative Law (OAL), where it was heard before an Administrative Law Judge (ALJ). At the October 1, 2008 hearing, appellant stipulated to the following facts: she left the children in her unattended vehicle in front of the Pathmark on June 21, 2005; both children were sleeping; it is unknown how long the children were in the vehicle prior to the observer noticing them; the view of appellant's vehicle from the store was partially obstructed; the doors to appellant's car were unlocked; and it was eighty-five degrees Fahrenheit at the time of the incident.

On November 17, 2008, the ALJ issued a decision recommending reversal of the finding of neglect and the listing of appellant's name in the Registry. The ALJ concluded that although "Z.P. was negligent in leaving the children unattended in the vehicle[,] . . . this negligence does not rise to the level of gross or wanton negligence sufficient to meet the statutory intent necessary to affirm the neglect finding."

On December 22, 2008, the Director issued a final decision, rejecting the ALJ's initial decision and affirming the agency finding, which substantiated child neglect. In her ruling, the Director enumerated the number of substantial risks of harm to which appellant exposed the children:

the car could have been stolen; the children could have gotten out of the car and into the parking lot or street; they could have been subjected to some emergency that a five and two year-old are not equipped to handle, such as a car accident or medical problem; the children could have been a abducted; and so forth. Having an older child in the car could even pose greater risks, in some respects, than a younger child left alone; the older child has the ability but not the judgment required to leave the car seat, set the car into gear, or cause some harm to the younger one. The doors were unlocked and the windows were almost completely opened; this enhances the risks of someone coming in the car or of the children getting out of the car.

The Director also detailed the simple cautionary acts appellant could have taken to prevent the children's exposure to such risks, including awakening and bringing them indoors "as they could have walked or ridden in a shopping cart," or alternatively, bringing them home and returning to shop at another time. Based thereon, the Director concluded:

Z.P. failed to [provide] the level of supervision that is expected under N.J.S.A. 9:6-8.21(c)(4)(b) and the gross negligence standard, even though she was fully capable and not restricted from doing so, thereby exposing these children to many potential risks. She neglected the children by failing to provide them "with proper supervision or guardianship, by unreasonably" creating a "substantial risk" of harm . . . .

 

On appeal, the following issues are raised for our consideration:

I. The appellate division should reverse DYFS' rejection of the ALJ decision and reinstate the ALJ decision because the ALJ properly applied the legal standard to the facts.

 

II. The Appellate division should reverse DYFS' rejection of the ALJ decision and reinstate the ALJ decision because DYFS relied on speculation rather than fact and incorrectly applied a potential risk standard instead of a substantial risk standard required by the statute.

 

III. DYFS' WRONGFUL INCLUSION OF APPELLANT'S NAME FOR SUBSTANTIATED NEGLECT IN THE DYFS CENTRAL REGISTRY CAUSED APPELLANT SIGNIFICANT INJURY.

Considering the issues raised in light of the record and arguments of counsel, we affirm.

We "will not upset [an agency] determination . . . in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the [governing] act." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); see also In re Herrmann, 192 N.J. 19, 27-28 (2007). In this regard, we "give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999). Although we are "not bound by an agency interpretation of a strictly legal issue, when that interpretation is inaccurate or contrary to legislative objectives." Ibid (citations omitted).

In challenging the Director's finding of substantiated child neglect, appellant contends, as the ALJ found, that her conduct amounted only to "simple negligence" rather than gross and wanton negligence, that any potential harm to which the children were exposed was neither "imminent" nor "actual," and the fact that the children were not injured belies the agency's final decision. We disagree.

N.J.S.A. 9:6-8.21(c)(4) provides, in pertinent part, that a "neglected child" is defined as

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 . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . or by . . . acts of a . . . serious nature requiring the aid of the court[.]

 

[(emphasis added).]

 

"[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 178. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). Wanton and willful behavior is "an 'intermediary position between simple negligence and the intentional infliction of harm[,]'" id. at 179 (quoting Foldi v. Jeffries, 93 N.J. 533, 549 (1983)), and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305).

The Court in G.S., supra, elaborated on the gross negli-gence standard as applied to child neglect cases substantiated pursuant to N.J.S.A. 9:6-8.21(c)(4)(b):

Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation. . . . 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. Ultimately, we leave it to DYFS and the courts to determine, on a case-by-case basis, whether a caregiver has failed to exercise a minimum degree of care in protecting a child.

 

[Id. at 181-82.]

Governed by this standard, there is substantial credible evidence to support the Director's finding of substantiated child neglect, which also comports with applicable law. See, e.g., G.S., supra, 157 N.J. at 181 (providing, by way of example, "if a parent left a two-year old child alone in a house and went shopping, the child would be considered a neglected child within the meaning of Title 9 regardless of whether the parent intended to impair the child's well-being or harm the child") (citations omitted). In our view, leaving a five-year-old and a two-year-old child sleeping, unsupervised and unattended, out of view of their guardian, in an unlocked vehicle, openly accessible to the public in a busy parking lot for at least ten minutes exposes them to more than a mere potential for harm. Such parental inattention creates an actual and imminent risk of serious harm, as well-documented by the Director in her final decision. That the children did not suffer any harm, physical or otherwise, is immaterial. See In re D.M.H., 161 N.J. 365, 383 (1999) (noting that "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect"). Moreover, nothing in the circumstances surrounding this incident necessitated appellant's actions. The situation was clearly non-emergent. By taking simple precautionary acts, such as having the children accompany her inside the store, taking them home first, or going shopping before dropping off the grandmother, appellant could have prevented exposing the children to these risks altogether. The omission of any such preventative measures evidences, in our view, the failure to exercise a minimum degree of care in protecting the children. Under the circumstances, we are satisfied appellant's conduct constitutes grossly or wantonly negligent behavior.

Contrary to appellant's last contention, having substantiated neglect, DYFS properly included appellant's name in the Central Registry.3 DYFS is statutorily mandated to forward all substantiated charges of abuse or neglect to the Registry. See N.J.S.A. 9:6-8.11; N.J.A.C. 10:129-5.4.

Affirmed.

1 The day after this incident, a DYFS caseworker went to appellant's residence and learned from her grandmother, N.R., that appellant was not currently at home because she was out purchasing diapers for her son.

2 In the course of investigating the incident, another DYFS caseworker learned that appellant had been previously warned about leaving her son unattended in the car.

3 Information received by the Registry is not part of the public record, and it may be released only in limited circumstances. See N.J.S.A. 9:6-8.11; N.J.S.A. 9:6-8.10a.