DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v. K.H.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6299-07T26299-07T2

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

K.H. (S.),

Respondent-Appellant.

________________________________________________________________

 

Argued April 27, 2009 - Decided

Before Judges Carchman, Sabatino

and Simonelli.

On appeal from a Final Decision of the

Department of Children And Families,

Division of Youth And Family Services,

Agency Docket No. AHU 07-398.

Diana Dunker argued the cause for

appellant (Legal Services of New

Jersey, attorneys; Ms. Dunker, on the

brief).

Jarrod M. Miller, Deputy Attorney

General, argued the cause for

respondent (Anne Milgram, Attorney

General, attorney; Lewis Scheindlin,

Assistant Attorney General, of

counsel; Mr. Miller, on the brief).

PER CURIAM

Defendant K.H.(S.) appeals from a final decision of the Director of the Division of Youth and Family Services (DYFS) concluding that defendant neglected her children, M.H. and I.H. N.J.S.A. 9:6-8.21(c). The consequence of this finding is that defendant, a child-care professional, will be included in the New Jersey Child Abuse Registry, N.J.S.A. 9:6-8.11 (the Registry). According to defendant, this will destroy her ability to work and "deprive her children of a means of financial support." We reject defendant's challenges and affirm the factual findings of neglect, and further conclude that by action of law, she is properly included in the Registry.

These are the facts adduced from the record. On September 15, 2004, a guidance counselor at the school attended by fourteen-year-old M.H. contacted DYFS to report that M.H. had informed her that: (1) M.H. and her ten-year-old brother, I.H., are often left unsupervised, as defendant "is never home and goes out all night"; (2) a few weeks before, I.H. "lit his pants and leg on fire while playing with gasoline," while defendant was not home; (3) the family's home was a "filthy mess" and lacked food; (4) about a month earlier, the father, R.H., was incarcerated for attempting to assault defendant with a motor vehicle upon finding out that she was having an affair; and (5) things are better at home when R.H. is around because "he is the 'sane one.'" The guidance counselor also reported that M.H. "appears dirty and has an odor," and has mental health issues for which she had been hospitalized.

Both M.H. and I.H. confirmed the fire-setting incident and reported that their adult sister, who does not get along with defendant, went to the house to take care of the burn; I.H. had not received medical attention. They also reported that defendant goes out at night with friends and leaves the children unattended. M.H. reported that she had been hospitalized two years before for hearing voices, and she was prescribed medication. M.H. also stated that she had not seen a psychiatrist since then and was no longer taking her medication.

DYFS worker Toshia Gresham visited the home and found I.H. home alone. He reportedly woke up late and, without defendant's knowledge, decided not to go to school. Defendant denied knowing that I.H. had stayed home. DYFS' investigation revealed that the home had "a really bad odor," the carpet was filthy with stains and animal feces, there were also animal feces in the kitchen, such that the worker was unable to enter it. There were flies, dishes and food in various locations and clutter covering most surfaces, including the floor, to a level that prevented the worker from accessing certain areas of the house. The bathroom was filthy, including the toilet and the floor. In addition, defendant reported that cats occasionally urinate on I.H.'s bed, and I.H. also occasionally urinates on his bed as well; the only clean and organized area was defendant's own bedroom. Ms. Gresham informed defendant that it is the parent's responsibility to maintain appropriate living conditions for the children. However, defendant stated that she refused to clean up after the children and the animals.

According to defendant, she leaves for work before the children leave for school and returns around 6:00 p.m. She admitted leaving the children home alone when she goes out at night, although she denied being out late. She denied knowledge of the fire incident and stated that she took M.H. off her prescribed medication "because she did not need it anymore."

On September 15, 2004, defendant executed a fifteen-day consent for the placement of the children by the Division because of the unsafe condition of the home. Defendant then cleaned the house, and the children were returned to her care on October 6, 2004. Subsequently, by letter dated October 15, 2004, DYFS informed defendant that neglect was substantiated. Defendant appealed DYFS' finding of child neglect, and the matter was transmitted to the Office of Administrative Law (OAL), N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13.

The Administrative Law Judge (ALJ) held a hearing and thereafter prepared her decision for review by the Director. After considering defendant's and Ms. Gresham's testimony, the ALJ "conclude[d] that without any intent to do so, [defendant] placed her children at a level of potential risk that fell within the gross-negligence standard." She noted that "the ultimate responsibility for sanitation and physical safety rested with [defendant]." She further observed that "[g]round-in cat feces and urine and the problems associated with bed-wetting create sanitation issues. Moreover, blocked stairwells and doors are a fire hazard both to the inhabitants of the household and to a firefighter trying to locate those inhabitants in a smoky blaze."

The ALJ found no evidence that defendant knew about I.H.'s "failure to attend school or the fact that he had been playing with matches." She concluded defendant was not negligent in regard to those two factors, and further concluded that the Division's concerns regarding M.H.'s mental health were not substantiated.

In dicta, the ALJ addressed the impact of her finding of neglect. She offered that the inclusion of defendant's name in the Registry was "contrary to the legislative intent of the statute" because defendant was employed in the childcare field and destroying her ability to work will "deprive her children of a means of financial support." At the same time, it will do nothing to protect other children, "since the letter from her employer makes abundantly clear that she handles infants extremely well."

The ALJ noted that DYFS contended that it is charged with administering the statute and has no discretion under the statute to exclude someone from the list based on how the family will be affected. She stated that "[r]ecognizing the deference given to agencies in interpreting their own statutes, I conclude that DYFS met its burden in this case." Accordingly, she dismissed the appeal and ordered that defendant's name be placed in the Registry.

On July 2, 2008, the Director of the Division issued a final decision (1) accepting the conclusion of the AJL, "which affirmed the finding of neglect"; (2) ordering that appellant's name remain on the Registry; and (3) modifying the AJL's decision so as to exclude "dicta on the issue of the Central Registry," which "was not the issue which was transmitted to the ALJ for decision." The Director stated that "[defendant] failed to take sufficient cautionary action to maintain adequate shelter for the children." Specifically, "[defendant] allowed the home conditions associated with bed wetting, ground-in cat feces and urine, and clutter to deteriorate over a period of time which lead to unsanitary and hazardous conditions. As such, [defendant] acted with reckless disregard for the health and safety of her children." The Director noted that "at the same time, [defendant] maintained and cleaned her own bedroom."

This appeal followed.

Although as we have noted that the appeal focuses on the Registry, we first address the merits of the allegations of neglect, recognizing that if the allegations are not sustained, the issue of the Registry is moot. Defendant contends that the Division's "final decision concluding that the conditions in [defendant's] home constituted child neglect does not meet the statutory standard nor the Division's internal administrative standards." She further asserts that "the final decision is not supported by a preponderance of substantial and credible evidence." In sum, defendant contends that she did not commit neglect because (1) she cleaned the house after DYFS became involved; (2) the conditions of the home were a symptom of her marital problems and her husband's efforts to be released from jail; (3) the "'ground-in cat feces and urine' was the result of the three cats and four kittens in the H.(S.) home"; (4) the pets were M.H.'s responsibility; (5) I.H.'s bed-wetting was difficult to manage; and (6) unsanitary living conditions alone do not meet the statutory standard.

Abuse or neglect is "substantiated" when "the available information, as evaluated by the child protective investigator, indicates by a preponderance of the evidence that a child is an abused or neglected child as defined in N.J.A.C. 10:133-1.3, because the alleged child victim has been harmed or placed at risk of harm by a parent or guardian." N.J.A.C. 10:129-1.3 (emphasis added). The definition of an abused or neglected child includes

a child less than 18 years of age . . . whose physical, mental, or emotional condition . . . 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 (a) in supplying the child with adequate . . . shelter . . . though financially able to do so.

[N.J.S.A. 9:6-8.21(c).]

The law does not impose an insurmountable standard of conduct as it defines abuse and neglect. A parent or "guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999) (citing In the Matter of Sellnow v. Perales, 551 N.Y.S.2d 428, 429 (N.Y. App. Div. 1990) (finding that the stepmother "failed to exercise a minimum degree of care by recklessly creating a risk of serious injury," since "[t]he danger that a child may be seriously injured when struck in the face by a person with long protruding fingernails is readily apparent")).

It is well established that "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Fam. Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005). "For 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." G.S., supra, 157 N.J. at 181 (citation omitted). What the Division must prove by a preponderance of the evidence is "the probability of present or future harm." S.S., supra, 372 N.J. Super. at 24.

Notably, it is not necessary that the parent intended to cause harm. G.S., supra, 157 N.J. at 183 ("Even though [the guardian] did not intend harm to befall [the child], she utterly disregarded the substantial probability that harm would result from her actions."). Title 9 is concerned with the protection of children "'from acts or conditions which threaten their welfare,'" and not with the mental state of the accused. Id. at 177 (quoting State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). "So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. Knowledge will be imputed to the actor." Id. at 178, 182 (noting that although the guardian did not intend to cause an overdose, she "intentionally gave [the child] the entire bottle of medicine").

"[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent," that is, conduct "done with the knowledge that injury is likely to, or probably will, result." Id. at 178 (citations omitted). Gross negligence is the point where "'parental neglect properly becomes a matter of public concern.'" Id. at 179 (citing Foldi v. Jeffries, 93 N.J. 533, 545-46 (1983)). "A wanton and willful negligence standard allows the State to intervene to protect children without unduly infringing on parents rights to raise and discipline their children." Id. at 180.

A determination that a parent or guardian failed to exercise a minimum degree of care is to be made "in light of the dangers and risks associated with the situation." Id. at 181-82. Because "a variety of factual scenarios can give rise to the finding that a guardian has failed to exercise a minimum degree of care," it is up 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 182.

Substandard, dirty and inadequate sleeping conditions that are "unfortunate incidents of poverty," do not in and of themselves establish child abuse or neglect. Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976) (noting that a different conclusion could result in "mass transfers of children from ghettos and disadvantaged areas into more luxurious living accommodations but with resultant destruction of the natural parental bond"), aff'd, 74 N.J. 196 (1977). The conduct here went well-beyond "unfortunate incidents of poverty."

Here the ALJ concluded that defendant "placed her children at a level of potential risk that fell within the gross-negligence standard" because "[g]round-in cat feces and urine and the problems associated with bed-wetting create sanitation issues. Moreover, blocked stairwells and doors are a fire hazard both to the inhabitants of the household and to a firefighter trying to locate those inhabitants in a smoky blaze." There was also a problem with flies in the home, which appellant acknowledged.

The Director concurred with the ALJ and issued a final decision concluding that defendant "failed to take sufficient cautionary action to maintain adequate shelter for the children." She found that defendant "allowed the home conditions associated with bed wetting, ground-in cat feces and urine, and clutter to deteriorate over a period of time which lead to unsanitary and hazardous conditions. As such, [defendant] acted with reckless disregard for the health and safety of her children."

Our review of these findings is limited. "[A]n ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, 158 N.J. 644, 655 (1999) (citing N.J.S.A. 52:14B-10(c)) (additional citations omitted). The agency may then "adopt, reject or modify the ALJ's findings." Ibid. "Once the agency has issued its final decision, 'the Appellate Division's initial review of that decision is a limited one.'" Id. at 656 (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981)).

"The scope of review of an administrative decision 'is the same as that [for] an appeal in any nonjury case,'" that is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). While we do not "simply 'rubber stamp the agency's decision[,]' [a]n administrative decision will be reversed only when it is found to be 'arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" N.J. Dep't of Children & Families' Institutional Abuse Invest. Unit v. S.P., 402 N.J. Super. 255, 268 (App. Div. 2008) (internal citations and quotations omitted). "[T]he court will accord a strong presumption of reasonableness" to administrative decisions. Ibid. (citing Smith v. Ricci, 89 N.J. 514, 525 (1982)).

The decision of the ALJ later adopted by the Director is supported by substantial, credible evidence that defendant neglected M.H. and I.H. by causing them to live in unsanitary and hazardous conditions. The imminent dangers of disease and entrapment in a fire were readily apparent and are within the parameters of the standard set forth in G.S. We note that defendant executed a consent for the out-of-home placement of the children "on the basis that the home was unsafe for the children."

Neither financial factors nor the father's request that the adult daughter contact the DYFS impeded defendant from cleaning the house. Her attempt to place the blame on the cats and on the children, or to impute to the children the ability to avoid the existing hazards, is equally misplaced. As the ALJ stated, "the ultimate responsibility for sanitation and physical safety rested with [defendant]." Similarly, that she cleaned the house after DYFS became involved does not change the fact that she had "allowed the home conditions . . . to deteriorate over a period of time" to "a level of potential risk that fell within the gross-negligence standard."

Although defendant raises marital and child-rearing strategies to explain some of her conduct, neglect cannot be used as an object lesson for addressing other issues. The Legislature has made clearly enunciated policy decisions regarding the care and welfare of children and one's personal issues cannot compromise the primary objective of attending to the needs of children. In sum, we are satisfied that DYFS established the elements of neglect and the Director's findings are well supported by the record.

We now address the consequences of these findings and the inclusion of defendant in the Registry.

Defendant contends that her "placement on the Registry is contrary to the statute's purpose and intent of child protection." In support of such contention, she relies on dicta by the ALJ suggesting that the finding of neglect "has the perverse effect of acting contrary to the stated legislative intent of the statute[:] . . . protection of the children." As the ALJ noted "[s]ince [defendant's] employment is in the childcare field," placing her on the Registry will destroy her ability to work and "will do nothing to prevent adverse effects to any other children," but "[i]t will, however, deprive her children of a means of financial support." The ALJ then observed that DYFS' interpretation of the statute is that a single incident leads to placement on the Registry, and the Division has no discretion.

Critically, the ALJ concluded, without equivocation, that "[defendant] placed her children at a level of potential risk that fell within the gross-negligence standard," because "[g]round-in cat feces and urine and the problems associated with bed-wetting create sanitation issues," and "blocked stairwells and doors are a fire hazard." Notably, defendant concedes that DYFS lacks discretion as to whether to withhold or remove an offender's name from the Registry. The only exception is a finding that the child was neither harmed nor likely to be harmed.

"Statutory authority for DYFS to investigate and monitor child abuse allegations appear in N.J.S.A. 9:6-8.8 to -8.20 and N.J.S.A. 9:6-8.21 to -8.82 . . . . The regulations adopted to implement the statute . . . require DYFS to evaluate the available information to determine whether that allegation is 'substantiated,' 'not substantiated' or 'unfounded.'" N.J. Div. of Youth and Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998). "The division or other entity shall also, within [seventy-two] hours, forward a report of such matter to the child abuse registry operated by the [d]ivision in Trenton." N.J.S.A. 9:6-8.11. In other words, "DYFS is required to forward any report of child abuse or neglect to the Central Registry." N.J. Div. of Youth and Family Servs. v. D.F., 377 N.J. Super. 59, 64 (App. Div. 2005).

The impact of the Registry is substantial. Although Registry reports are confidential, they "may be disclosed as authorized in N.J.S.A. 9:6-8.10a, subject to certain restrictions." M.R., supra, 314 N.J. Super. at 400. For instance, disclosure is allowed to "[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). Indeed, licensing of a child care center is conditioned upon a determination that no "incident of child abuse or neglect has been substantiated . . . against any staff member of a child care center." N.J.S.A. 30:5B-6.2(a).

A person whose name is added to the Registry is entitled to challenge the Division's finding, in a "trial-type hearing," before the OAL. D.F., supra, 377 N.J. Super. at 64-65. A hearing is then held before the ALJ, and "[i]f the finding of child abuse or neglect is upheld, the person's name remains in the Central Registry. But if the administrative hearing results in a determination that the child abuse or neglect charge has not been substantiated, the person's name must be immediately removed from the Central Registry." Id. at 65-66 (citations omitted). If the Director sustains the Division's findings, the person can appeal to this court.

Here, the Division substantiated neglect against defendant, the ALJ upheld DYFS' findings, and the Director issued a final decision accepting the conclusion of the AJL. Defendant remained listed in the Registry pursuant to statutory mandate. Neither defendant's work at a day care center nor a recommendation letter from her employer are factors that DYFS is permitted statutorily to consider.

While we have recognized that authorized and mandatory disclosure of Registry information "significantly limits that person's 'capacity to obtain employment in a vast array of education-related jobs,'" id. at 66 (citations omitted), no authority supports the position that a caretaker, found to have abused or neglected a child, should be excluded from the Registry. Finally, as the Division observes, "agencies who provide services to children should be made aware, where so authorized, that [defendant] exercised such poor judgment in permitting her children to reside in these deplorable and hazardous living conditions."

We reject defendant's argument that the children were neither harmed nor likely to be harmed. The identified household conditions subjected the children to an environment that would foster harm.

While the result here is harsh to defendant, we recognize that the Registry serves an important public function to assure that employers, day care centers, adoption agencies and other organizations that deal with children are apprised of the harmful conduct that led a particular individual to be listed on the Registry. M.R., supra, 314 N.J. Super. at 399-402. We acknowledge this, mindful that the adverse reputational consequences for an individual listed in the Registry can be devastating, S.S., supra, 372 N.J. Super. at 27, but on balance, the legislative mandate to protect potential harm to children must be respected.

Affirmed.

 

A third, adult child is not involved in this appeal.

Defendant refers to letters from her husband to her estranged, adult daughter asking the daughter to contact DYFS in hopes that such intervention would assist him in being released from jail.

N.J.A.C. 10:133-1.3 mirrors the definition of an abused or neglected child as set forth in N.J.S.A. 9:6-8.21.

(continued)

(continued)

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A-6299-07T2

RECORD IMPOUNDED

June 23, 2009