DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES - v. T.B.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4519-08T14519-08T1

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF

YOUTH AND FAMILY SERVICES,

Petitioner-Respondent,

v.

T.B.,

Respondent-Appellant.

_______________________________________

 

Argued April 19, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Division of Youth and Family Services, Department of Children and Families, Agency Docket No. AHU 07-716.

Lynn E. Staufenberg argued the cause for appellant (Law Office of Lynn E. Staufenberg, attorneys; Ms. Staufenberg and Jessica S. Strugibenetti, on the brief).

Rebecca A. Glick, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Glick, on the brief).

PER CURIAM

T.B. appeals from a final determination of the Director of the Division of Youth and Family Services (Division), dated March 30, 2009, which affirmed the Division's finding that T.B. had neglected her child and ordered that her name remain upon the Division's Central Registry pursuant to N.J.S.A. 9:6-8-11. We affirm.

The following procedural history and facts are pertinent to our decision. On April 27, 2007, the Division informed T.B. that it had substantiated a finding that, as a result of T.B.'s actions, T.B.'s child was an "[a]bused or neglected child[,]" as that term is defined by N.J.S.A. 9:6-8.21(c)(4)(b). T.B. filed an appeal challenging the Division's finding, and the Division referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).

The evidence presented at the OAL hearing established that in March 2007, T.B. and her son were residing in a home with her mother and stepfather. T.B. and H.B. lived downstairs in the house, and H.B. was able to move freely between his room and the space in the house occupied by his grandparents. The grandparents assisted T.B. with child care three or four nights a week and, at times, on weekends. T.B.'s mother worked during the day and T.B.'s stepfather worked at night.

On Sunday, March 25, 2007, T.B. and H.B. spent the day with her sister at her sister's house. Between 7:00 and 7:30 p.m., T.B. returned home with H.B. The child had fallen asleep in the car. T.B. observed her mother's car in the driveway. T.B. assumed her stepfather had gone to work. T.B.'s mother had been ill and T.B. thought her mother was upstairs sleeping. T.B. did not know, however, that her mother had gone with her stepfather to New York City. T.B. put H.B. to bed and she received a phone call from a male friend, who told her he was outside. T.B. left the house to have dinner with her friend.

H.B. woke up and found himself alone in the dark house. He walked across the street to a neighbor's house. T.B.'s residence is located on a corner intersection, where the speed limit is twenty-five miles per hour. The police were called and H.B. told the officers that he went to the neighbor's house because he could not find his mother. The police left the child in the neighbor's home and went to T.B.'s residence. No one was there.

Around 9:30 or 10:00 p.m., T.B. returned home with her friend. She was alarmed when she saw the police, believing that something had happened to her mother or stepfather. When T.B. learned that H.B. had walked across the street to the neighbor's house, she became very upset and began to cry. T.B. informed the officer that she had assumed that her mother was home, and admitted that she did not speak with her before she went out. H.B. was reunited with his mother. He was happy to see her, and stated, "[w]here were you? I thought you went to heaven."

The police reported the incident to the Division, which investigated the matter. The caseworker prepared an in-home case plan, which addressed the incident in order to ensure that it did not recur. T.B. and the grandparents signed the care plan. The Division's caseworker found that neglect had been substantiated on the basis of inadequate supervision. The caseworker also found that H.B. was at low risk for abuse or neglect, and determined that safety interventions were not warranted.

The ALJ filed an initial decision in the matter dated January 2, 2009. The ALJ concluded that the Division failed to establish that H.B. was an "[a]bused or neglected child[,]" as that term is defined in N.J.S.A. 9:6-9.21(c)(4)(b). The ALJ stated that the Division failed to meet its burden of proving that T.B. had committed gross and wanton negligence by acting in reckless disregard for H.B.'s safety. The ALJ wrote that gross or wanton neglect

requires a finding that a parent's conduct was reckless and in disregard [of] the safety of her child and not just an inadvertent mistake. Here, T.B. made an unfortunate mistake in not checking [with] her mother before leaving, which the police and [the Division] concluded is not likely to happen again. Neither [the police officer nor the caseworker] ever doubted that T.B.'s explanation that she was sure that her mother was in the house when she left. The facts that T.B.'s mother's car was in the driveway and the stepfather always goes to work in New York alone further support T.B.'s explanation. According to [the Division's] own documents, there were no safety issues and no risk factors associated with the T.B. household. Rather, they were a loving family that showed genuine concern for each other and tried to help each other by sharing the care for H.B.

The Director reversed the ALJ's initial decision. In her final decision dated March 30, 2009, the Director stated that the evidence presented at the hearing clearly established that T.B. had neglected H.B. during this incident. The Director stated that T.B. failed to take precautionary actions to ensure H.B.'s care and safety.

According to the Director, T.B. "made the false assumption that her parents were in the house, and would look after H.B., even though she did not communicate with them to advise that she was leaving H.B. in their care." The Director observed that it was "by mere fortunate happenstance that no actual harm befell this young child." The Director found that T.B.'s omission "placed H.B. at significant risk of harm."

The Director accordingly affirmed the Division's finding that child neglect had been substantiated, and ordered that T.B.'s name remain on the Central Registry, pursuant to N.J.S.A. 9:6-8.11. This appeal followed.

T.B. raises the following arguments for our consideration:

POINT I

THE APPELLATE DIVISION MUST OVERTURN THE AGENCY'S DECISION UPON THE BASIS THAT IT WAS UNSUPPORTED AND UNREASONABLE.

POINT II

[THE DIVISION] DID NOT MEET ITS BURDEN TO PROVE THAT NEGLECT OCCURRED BY A PREPONDERANCE OF THE EVIDENCE AND ACCORDINGLY, [THE DIVISION] IMPROPERLY REJECTED THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE.

POINT III

PLACING T.B. ON THE CENTRAL REGISTRY MAINTAINED BY [THE DIVISION] HAS SERIOUS, HARMFUL CONSEQUENCES.

POINT IV

IN REJECTING THE DECISION OF THE ADMINISTRATIVE LAW JUDGE, [THE DIVISION] IMPROPERLY RELIED UPON THE [DIVISION] MANUAL, WHICH WAS NOT ADMITTED AS PART OF THE RECORD AND WAS THE IMPROPER STANDARD.

We have carefully considered the record and conclude that these contentions are without merit. We accordingly affirm substantially for the reasons stated by the Director in her decision dated March 30, 2009. We add the following comments.

The standard of review that applies in an appeal from a final determination of an administrative agency is well established. The agency's decision must not be disturbed unless it has been shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We can only intervene "in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Therefore, our scope of review is limited to the following inquiries:

(1) whether the agency's decision offends the State or Federal Constitution;

(2) whether the agency's action violates express or implied legislative policies;

(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Id. at 211 (quoting George Harms, supra, 137 N.J. at 27)].

Moreover, when reviewing a decision of an administrative agency, we must give "'due regard . . . to the agency's expertise where such expertise is a pertinent factor.'" Mayflower Securities v. Bd. of Securities, 64 N.J. 85, 93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

Here, the Division found that, due to T.B.'s actions, H.B. was an "[a]bused or neglected child[,]" as that term is defined in N.J.S.A. 9:6-8.21(c)(4)(b). The statute provides that a child, who is less than eighteen years of age, is an "[a]bused or neglected child" if he or she is

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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; . . .

[N.J.S.A. 9:6-8.21(c)(4).]

In G.S. v. Dept. of Human Servs., 157 N.J. 161 (1999), the Court explained the phrase "minimum degree of care" in N.J.S.A. 9:6-8.21(c)(4)(b) "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. The Court also explained that "[c]onduct 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)). Furthermore, the "difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision." Ibid. (citing McLaughlin, supra, 56 N.J. at 305). Moreover, willful misconduct "'takes its meaning from the context and purpose of its use.'" Ibid. (quoting Fielder v. Stonack, 141 N.J. 101, 124 (1995)).

In G.S., the Court further explained that the phrase "willful and wanton" in N.J.S.A. 9:6-8.21(c)(4)(b) "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Ibid. (quoting McLaughlin, supra, 56 N.J. at 305). The Court 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 (citing Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305).

The Court added that, "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes." Ibid. (citing Fielder, supra, 141 N.J. at 123). Consequently, "under a wanton and willful negligence standard, a person is liable for the foreseeable consequences of her actions, regardless of whether [the individual] actually intended to cause injury." Ibid.

We are satisfied that there is sufficient credible evidence to support the Director's finding that T.B. failed to exercise the "minimum degree of care" for H.B. when she left the four-year-old child alone in the house, while she went out to dinner with her friend. The record supports the Director's finding that T.B.'s actions met the "willful and wanton" standard under G.S. As the Director determined, T.B. actions were more than an "unfortunate mistake[,]" as the ALJ had found. Rather, T.B. had placed the child at substantial risk of harm, by failing to ensure that her mother or stepfather was at home and available to care for the child when she left the house for several hours.

T.B. argues that the Director's decision should be reversed because, as a result of the Director's finding, T.B. will be placed on the Division's Central Registry for persons who are found to have abused or neglected children. T.B. asserts that her placement on the Central Registry will have serious and harmful consequences. T.B. maintains that this incident was an isolated event and notes that the Division had no ongoing concerns about child's safety. She also says that her placement on the Central Registry will cause a substantial detriment to her career as an elementary school teacher and preclude her from future career opportunities in the field of education.

However, in this case, the Director was required to determine whether H.B. was an "[a]bused or neglected child" under N.J.S.A. 9:6-8.21(c)(4)(b). The consequences of that determination, including the placement of T.B.'s name on the Central Registry, as required by N.J.S.A. 9:6-8.11, do not bear upon whether T.B.'s actions constitute abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b), as interpreted in G.S.

Moreover, we note that there is no evidence that T.B. has suffered any adverse consequences as a result of the placement of her name on the Central Registry. The parties disagree as to whether a school may have access to information in the Central Registry, since that information is confidential and may be released only under certain limited circumstances. N.J.S.A. 9:6-8.10. T.B.'s concerns that her placement on the Central Registry will have an adverse impact upon her prospects for future employment are, at this point, speculation.

T.B. also argues that, in making her final decision, the Director erred by relying upon sections of the Division's Policy Manual pertaining to adequate supervision of children. T.B. contends that the Director should not have considered the Division's Policy Manual because it was not admitted into evidence at the hearing, but mentioned by the Deputy Attorney General in the exceptions to the ALJ's initial decision.

In our view, the contention is without merit. There was sufficient credible evidence in the record presented before the ALJ to support the Director's finding that H.B. was an "[a]bused or neglected child[.]" Even if we agreed with T.B. that the Director erred by referring to the Division's Policy Manual in her final decision, the error was harmless.

Affirmed.

 

(continued)

(continued)

12

A-4519-08T1

RECORD IMPOUNDED

May 17, 2010