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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4831-08T24831-08T2

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

X.H.,

Respondent-Appellant.

________________________________________________________________

 

Argued January 4, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the New Jersey Department of Children and Families, Division of Youth and Family Services, Docket No. AHU#07-722.

Sara K. Walsh, Senior Staff Attorney, argued the cause for appellant (Central Jersey Legal Services, Inc., 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; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Hoff, on the brief).

PER CURIAM

X.H. appeals from the May 4, 2009 final decision of the Director of the Department of Children and Families, Division of Youth and Family Services (Division) affirming the Division's finding of substantiated child neglect by X.H. The Director's decision rejected the contrary determination made by the Administrative Law Judge (ALJ). X.H. argues that the ALJ had correctly applied the controlling legal standard to the facts, and the Director did not. More particularly, she argues that the Director applied a simple negligence rather than the required gross negligence standard, that the record did not contain substantial evidence to support the Director's decision, and that the Director clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. We reject these arguments and affirm.

The facts are undisputed. No witnesses testified before the ALJ, who decided the case based upon a documentary record, which included the police report, the Division's screening summary, the Division's contact sheet, the Division's findings letter, the hospital records, and X.H.'s responses to the Division's request for admissions.

On February 28, 2007, X.H. was bathing her ten-month-old son, N.L. She placed N.L. in a baby tub, which in turn, was placed in the regular bathtub. She began to drain the water from the bathtub, but left the faucet running, apparently to rinse off her son. She left the bathroom to check on the water heating in the kitchen for N.L.'s bottle. She left N.L. unattended for at least thirty seconds, and probably not more than a minute. During that time, X.H.'s husband was in an adjacent room watching television. X.H. did not ask her husband to watch N.L. while she went to the kitchen, nor did she ask him to check on the water for the baby bottle so she could stay with N.L. When X.H. returned to the bathroom, she found N.L. turned over, face down in the water. He was not breathing and appeared to be bluish. X.H. alerted her husband. While he administered CPR, X.H. called 911. After about thirty to sixty seconds of CPR, N.L. vomited and began breathing. Emergency personnel arrived, and N.L. was transported to a hospital by ambulance. He was kept there overnight. The diagnosis was "near drowning." N.L. was discharged the next day, and he has suffered no residual effects from the incident.

Although the Division caseworker who investigated the matter did not make a finding of neglect, upon further review by a supervisor, the Division issued a letter to X.H. on April 9, 2007 determining that neglect was substantiated. X.H. filed an administrative appeal. The matter was referred to the Office of Administrative Law. By consent of the parties, the ALJ determined the matter on the documentary record as we have previously discussed.

The ALJ determined that the Division failed to meet its burden of proof. Analyzing the circumstances that led to the injury, the ALJ noted that X.H. "took the reasonable precaution of placing her ten month old child, whom had never exhibited the ability to flip over in his baby tub, in a baby tub designed to prevent accidental drowning. She commenced to drain the water from the tub." The ALJ therefore reasoned that X.H. "could not foresee that N.L. would in that brief time she left him over-turn in his baby tub completely upside down into the draining water." The ALJ qualified her findings by noting that the precautions X.H. took "should not be misinterpreted as my acquiescence to a concept that it is permissible to leave a child unattended in a bathtub or a baby tub."

The Division took exception to the ALJ's initial decision. After considering the submissions of both parties and the entire record, the Director rejected the ALJ's initial decision and affirmed the Division's substantiation of neglect.

The Director found that X.H. failed to take the cautionary actions of supervision that were available to her, and she did not leave the child unattended due to any exigent circumstances. X.H. could have taken N.L. with her into the kitchen, she could have requested her husband's assistance, or she could have waited until the bath was complete and all of the water was gone before going to prepare the bottle. Instead, she intentionally left the child unattended for no justifiable reason. She rejected the notion that X.H. could not have foreseen that N.L. would turn over because he had never done it before. An objective standard applies. The medical records reflect that N.L. had normally developed motor skills for a ten-month-old child. He was capable of turning over in both directions. A reasonable person would have known this and would have foreseen the potential for exactly what happened.

The Director noted that the risk to a young child left alone in a bathtub is extreme. A baby can drown very quickly in a relatively small amount of water. She noted that N.L. "was injured to the point that he stopped breathing as a result of being submerged in the water." The Director further found that "X.H.'s actions of utilizing a baby bathtub and draining the tub are the acts of someone who is aware of the inherent dangers of her choice; this fact negates X.H.'s argument that she could not have foreseen any possible harm from her child being left alone in the bathtub."

Our review of a final determination of an administrative agency is very limited. We will not interfere unless there is a clear showing that the decision is "arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Our review is restricted to "'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 agency's expertise where such expertise is a pertinent factor." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The burden of showing that an agency's decision was arbitrary, capricious, or unreasonable lies with the appellant. See Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

If an agency's decision meets those criteria, we give substantial deference to the agency's superior expertise and knowledge in its particular field. See In re License Issued to Zahl, 186 N.J. 341, 353 (2006). Such deference controls even if we would have decided the case differently. See In re Taylor, 158 N.J. 644, 657 (1999). However, an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower, supra, 64 N.J. at 93.

An agency is entitled to reject the result reached by an administrative law judge provided the agency's decision is founded in the record. N.J. Bell Tel. Co. v. State, 162 N.J. Super. 60, 69 (App. Div. 1978). Where such results are in conflict, "it is the expertise of [the agency] to which due regard must be given." 613 Corp. v. State, 210 N.J. Super. 485, 509 (App. Div. 1986) (citing In re Kallen, 92 N.J. 14, 20 (1983)). Indeed, the review of such a decision is made with deference to the agency where the matter is "one particularly within the agency's expertise and statutorily-sanctioned discretion." Id. at 496 (citing N.J. Bell Tel. Co., supra, 162 N.J. Super. at 77).

An "abused or neglected child" is defined in pertinent part as one who is less than eighteen years of age and

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.

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

The concept of a "minimum degree of care" used in this definition attempts to strike a balance between "a parent's constitutional right to raise his or her child without undue state interference" and "the State's parens patriae power to protect children from acts that negatively impact on their health and safety." G.S. v. Dep't of Human Servs., 157 N.J. 161, 179-80 (1999). An inquiry under N.J.S.A. 9:6-8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly "protect children from a wide range of conduct that clearly qualifies as neglect." Id. at 180-181.

In G.S., the Court explained that "[t]he phrase 'minimum degree of care' denotes a lesser burden on the actor than a duty of ordinary care" and hence "something more than ordinary negligence is required to hold the actor liable." Id. at 178. Therefore, the phrase "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. Such phrasing "implies more than simple negligence," but can apply to situations ranging from "'slight inadvertence to malicious purpose to inflict injury.'" Ibid. (quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). The standard is an "intermediary position between simple negligence and the intentional infliction of harm." Foldi v. Jeffries, 93 N.J. 533, 549 (1983). Although the distinction from ordinary negligence cannot be precisely defined, McLaughlin, supra, 56 N.J. at 305, the essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)).

Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result." Id. at 178 (citing McLaughlin, supra, 56 N.J. at 305). However, if the act or omission is done intentionally, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. Such knowledge is imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences." Id. at 179. Therefore, "a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury." Ibid.; see also McLaughlin, supra, 56 N.J. at 305-06 ("[I]t is enough that [the defendant] know[s], or has reason to know, of circumstances which would bring home to the realization of the ordinary reasonable man the highly dangerous character of his conduct.").

Determinations must be made on a case-by-case basis, and "[w]hether 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." G.S., supra, 157 N.J. at 181-82. "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. However, the mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986)). As an example of neglect under N.J.S.A. 9:6-8.21, the Court in G.S. set forth a scenario in which "a parent [leaves] a two-year old child alone in a house and [goes] shopping . . . 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.

Cases distinguishing ordinary negligence from gross negligence are illustrative. In Foldi, supra, 93 N.J. at 535-36, the Court found only ordinary negligence in a situation where a two-and-one-half-year old child was bitten by a dog after wandering out of the yard where her mother was gardening. The Court noted that the mother's inattention to the child was slight, and the incident occurred in the family's own yard, where the mother would not perceive a high probability of injury to her child. Id. at 550-51. This was therefore "a typical instance of a negligent lack of supervision, where a parent briefly loses sight of his or her child." Id. at 551. The Court noted, however, that the result might be different if the mother and daughter had been near a railroad track, rather than in their own backyard. Ibid.

A panel of this court recently considered another fact pattern and concluded that a mother, "although arguably inattentive or even negligent, did not meet the requisite standard of willful or wanton misconduct." N.J. Div. of Youth & Fam. Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009). The incident occurred in the condominium complex where the mother and her sons, who were nearly four and nearly six years old, lived. Id. at 161. The mother had been with the boys in a recreational area where they were playing; one of the boys, with the mother's permission, engaged in a water fight and wanted to return to their home to change his clothes; the other boy wanted to use the bathroom. Ibid. The mother allowed them to walk back to the home, never leaving her view and never having to cross any streets. Ibid. After the boys entered the house, the door closed behind them and, because it was equipped with a child-proof device, they were unable to open it. Id. at 161-62. After some passage of time, the boys realized they could not get out of the house, the older one called 911, and police responded, finding the boys unharmed. Id. at 162. The panel found only ordinary negligence, noting that the appropriate standard is not whether "some" potential for harm exists, but whether the risk of harm is "inherent in a situation." Id. at 168-69.

In rendering her decision in this case, the Director discussed G.S. and applied the gross negligence standard it requires. We have no hesitancy in concluding that, in addition to applying the correct legal standard to the facts, the Director's ultimate decision was well supported by the record and was not arbitrary, capricious or unreasonable. Unlike in Foldi and J.L., the situation in this case presented an inherent risk of harm. Therefore, the holdings in those cases, finding only ordinary negligence, do not undermine the Director's finding in this case of gross negligence.

 
Affirmed.

X.H. described the time she left N.L. unattended in various ways. In her notice of administrative appeal, she referred to her "45 second lapse in judg[]ment." The police report reflects that X.H. said she left the baby "for seconds." The history of present illness portion of the hospital records reflects that N.L. "was reportedly found submerged in the bathtub tonight for about 30-45 seconds." According to the Division contact sheet, X.H. stated she left the child for not more than a minute.

(continued)

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A-4831-08T2

RECORD IMPOUNDED

January 21, 2010