DEPARTMENT OF CHILDREN AND FAMILIES - v. S.P -

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0099-10T4

DEPARTMENT OF CHILDREN

AND FAMILIES,

Petitioner-Respondent,

v.

S.P.,

Respondent-Appellant.

____________________________________

April 25, 2011

Argued March 23, 2011 Decided

Before Judges Axelrad and R. B. Coleman.

On appeal from the Final Decision of the Department of Children and Families, Agency Docket No. AHU 08-1058.

Harvey H. Rothman argued the cause for appellant (Gerald Poss & Associates, attorneys; Mr. Rothman, on the brief).

Ella Skora, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Skora, on the brief).

PER CURIAM

Defendant S.P. appeals from the Final Decision of the Department of Children and Families (DCF), which adopted the Initial Decision rendered by the Administrative Law Judge (ALJ) finding that S.P. recklessly failed to supervise a minor, J.F., who was under her supervision when J.F. wandered out of the Valley Settlement House Day Care Center (day care center) into circumstances constituting a substantial risk of harm.1 After reviewing the Initial Decision, the DCF adopted the ALJ's recommended disposition. We affirm.

The issue arose in the following factual context. On May 5, 2008, Senior DCF Investigator Ellington D. Mollie received a referral from the West Orange Police Department regarding five- year-old J.F., who, on May 2, 2008, exited the back door of the day care center, and walked a third of a mile crossing railroad tracks to his home, where he was found by a third party and delivered to the police. Investigator Mollie interviewed all of the parties involved in the incident, including J.F., J.F.'s mother, three of the ten students present at the day care center the day J.F. wandered away, S.P., K.H., T.P. (the woman who found J.F.), M.S. (the Director of the day care center), C.F. (the assistant chief of Office of Licensing), the school social worker and the superintendent.

The day care center is located in a converted residential building. The back door is always unlocked and opens into a yard for play. There is no alarm on the back door and no camera to monitor activities. There are also no written protocols on security or student supervision. There is fencing in the backyard which ends at the side of the building. Upon exiting through the back door, a person can exit onto the street.

On May 2, 2008, S.P., the head teacher for thirteen years, and K.H., a teacher's assistant, were conducting classes at the day care center for ten pre-k children. S.P. had either gone to the bathroom to assist her students in washing their hands for lunch, or she had excused herself for her own personal use of the facilities. When she returned, she noticed J.F. was missing and asked K.H. where J.F. was. K.H., who was preparing three students and the lunch room for lunch, replied "I don't know." At that time, approximately noon, they searched for J.F. and notified school officials and the West Orange Police who subsequently found the child with an Orange Police Officer and a Good Samaritan, T.P.

As part of the investigation by the DCF Institutional Abuse Investigative Unit (IAIU), Investigator Mollie interviewed J.F.'s mother, K.B., who stated that the day care center informed her that the class was in transition to another class when they realized that J.F. was missing. K.B. advised that the day care center is located about four blocks from her home under a train track and that, even though J.F. knows the route to and from school, she does not allow him to walk by himself due to high automobile traffic.

When J.F. was interviewed, he told the investigator that he left the day care center by opening the back door and he walked home. He explained he started crying because when he went home, no one was there and he missed S.P. The investigator noted in his report that J.F. was unscathed. The students who were interviewed by Investigator Mollie told him that when the class started to eat lunch, J.F. left without an explanation. Apart from the three of the four five-year-old students, no one else saw J.F. leave.

M.S., the director of the day care center, acknowledged that there were no set rules or policies as to who was responsible for washing students' hands during lunch, and she told the investigator that the head teacher's responsibilities include educational instruction with other duties being flexible. M.S. confirmed that the back door is not a fire door and stated that it is left unlock because it is used as an emergency exit. She stated that she has no concerns with the care and supervision S.P. and K.H. provide to their class.

Finally, T.P. spoke with Investigator Mollie. She explained that while she was driving, she found J.F. crying and walking. After attempting to bring J.F. to his family at home, she eventually contacted the Orange Police Department. The West Orange Police then took over the matter and returned J.F. to his mother. J.F. was uninjured.

On August 22, 2008, as a result of the IAIU investigation, DCF notified M.S., S.P. and K.H. that neglect and inadequate supervision was substantiated regarding the actions of S.P. and K.H. pursuant to N.J.S.A. 9:6-8.21. S.P. and K.H. each filed timely requests for hearings, and hearings on the contested case were scheduled by the Office of Administrative Law. At the hearing on March 23, 2010, Investigator Mollie testified for the DCF. Neither S.P. nor K.H. testified.

Investigator Mollie first testified as to his investigation efforts and he described the layout of the day care center, explaining that the back door through which J.F. exited was located seven to ten feet away from the bathroom, unalarmed. When asked whether he believed an alarm would enhance security of the day care center, the investigator answered that child supervision is what would enhance the security for the children. Investigator Mollie further testified that it is not important to his investigation that the facility did not have a written policy and procedure regarding lunch time, bathroom breaks or hand washing.

Investigator Mollie testified that there was a discrepancy in the information provided to him by the teachers regarding the exact timeline of when J.F. went missing. However, Investigator Mollie admitted that J.F.'s mother, K.B., explained to him that she did not have any concerns regarding the day care center before the incident, and that no where in his report is it indicated that K.B. has concerns with the care and supervision provided to J.F. after the incident. Finally, after summarizing his investigative findings, Investigator Mollie offered his opinion that by allowing J.F. to walk home unsupervised, one-third of a mile, both S.P. and K.H. had failed to provide the requisite level of supervision.

The ALJ rendered his initial decision in a comprehensive written opinion issued on July 19, 2010, in which he found that the "IAIU substantiated its investigative findings of neglect against S.P. who recklessly failed to supervise minor J.F. who was under her supervision when he wandered out of the Day Care Center into circumstances constituting a substantial risk of harm." However, as to K.H., the ALJ found "that the IAIU failed to establish by clear and convincing evidence that respondent K.H. likewise recklessly failed to supervise J.F." In his analysis, the ALJ stated that:

It is beyond question that Center employees neglected to properly supervise J.F. thereby allowing him to exit the facility unattended for about forty five minutes during which he crossed railroad tracks in the course of wandering home. He was discovered by a stranger who conscientiously took responsibility for him until he was retrieved by police and his mother and returned to the Center. J.F. belonged to a class that was being supervised by the two respondents. Although both respondents were neglectful, it is the supervising teacher S.P. who bore the primary responsibility for the children's supervision. Apparently, J.F. was among other students who used the bathroom and washed their hands before lunch. S.P. was present. However, it was not until S.P. left the bathroom and entered the lunch area that she realized J.F. was unaccounted for.

The ALJ added:

Although S.P.'s neglect was not deliberate, it was recklessly negligent. . . . She knew the back door was unlocked and without an alarm. She also knew that the rear yard, although fenced on three sides, allowed egress to the street. The risk of a child wandering away was obvious. There were no procedures to secure the children's physical safety, and there was no excuse.

DCF, following the recommendation of the ALJ, found neglect as to S.P. and reversed the IAIU finding of neglect as to K.H. In its final decision, DCF stated that it had been established:

(1) that the center had no policies or procedures in place regarding security or student supervision, (2) that S.P. was in a supervisory capacity and aware of the relevant attendant circumstances which increased the risk of a child's escape, and (3) that at the time of J.F.'s escape, K.H., the assistant teacher, was preparing the lunch room while S.P., the head teacher, was watching the students, including J.F., and washing their hands in preparation for lunch[.]

This appeal ensued. On appeal, defendant argues that:

POINT I: THE DECISION OF THE COURT BELOW WAS CLEARLY ERRONEOUS, ARBITRARY AND CAPRICIOUS IN THAT THERE WAS NOT ONE SCINTILLA OF EVIDENCE IN THE INVESTIGATION OR TESTIMONY TO JUSTIFY A FINDING THAT S.P. WAS PRIMARILY RESPONSIBLE FOR FAILING TO DEVELOP A POLICY OR PROCEDURE TO SECURE STUDENTS OR TO CLEARLY DELINEATE K.H.'S DUTIES, CONSTITUTING GROSS NEGLIGENCE.

The judicial role in reviewing decisions of administrative agencies is "to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on substantial credible evidence in the record, considering "'the proofs as a whole.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). When error in a factfinding of a judge or administrative agency is alleged, the scope of appellate review is limited. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). Although appellate courts must give deference to an administrative agency charged with interpretation of the law, the courts are not bound by the agency's legal opinions. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 170 (1999). The burden of proof for establishing claims before state agencies in contested administrative hearings is by a "fair preponderance of the evidence." In re Polk, 90 N.J. 550, 560 (1982).

N.J.S.A. 9:6-8.21 provides in pertinent part, that an abused or neglected child is defined as a child less than eighteen years old 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 or 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 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[.]

The definition of a parent or guardian includes "any natural parents . . . or any person who has assumed responsibility for the care, custody or control of the child." N.J.S.A. 9:6-8.21(a). This includes an employee of an institution whether the person is responsible for the care or supervision of the child. Ibid. The Court has held that the 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. Child abuse ranges from situations of "'slight inadvertence to malicious purpose to inflict injury.'" Ibid. (quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). Conduct is willful or wanton if it is "done with the knowledge that injury is likely to, or probably will, result." Ibid. It is noted additionally that "[b]ecause risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful." Ibid.

According to G.S., "a 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." Id. at 181. The inquiry whether the guardian has exercised the necessary degree of care is to be analyzed in the context of the risks associated with the situation at issue. Id. at 181-82. The inquiry must consider 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." Id. at 182.

We are satisfied that there is sufficient credible evidence in the record to support DCF's finding that S.P. neglected J.F. and, as a consequence, J.F. was an "abused or neglected" child, as defined in N.J.S.A. 9:6-8.21. The record supports that S.P. was in charge of the classroom and failed to provide adequate supervision to J.F., thereby subjecting him to a risk of serious injury. Fortunately, J.F. did not sustain any injury, but danger and risk of serious injury under the circumstances were palpable and undeniable.

We find no merit in S.P.'s assertion that the ALJ erred by finding that she failed to exercise the minimum degree of care. S.P. knew the back door was unlocked, she knew it led to an egress of the day care facility, and the record supports that she could have taken extra precautionary steps to ensure the five-year-old's safety. We conclude that the agency's decision, finding substantiated neglect against appellant, is supported by substantial evidence. R. 2:11-3(e)(1)(D).

We have considered S.P.'s other contentions, including her causation that others also were in positions of supervision and not charged or found to have abused or neglected J.F., and we find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The ALJ concluded that DCF failed to establish that K.H., the assistant teacher in S.P.'s classroom, had recklessly failed to supervise J.F. DCF adopted that conclusion and the recommendation by the ALJ to reverse the finding of neglect by the DCF Institutional Abuse Investigation Unit. Thus, issues relating to the charges against K.H. are not a part of this appeal.