DIVISION OF YOUTH AND FAMILY SERVICES - v. S.M.P. - IN THE MATTER OF A.P and N.P minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1496-10T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

S.M.P.,

Respondent-Appellant.

___________________________________

IN THE MATTER OF A.P. and N.P.,

minors.

___________________________________

November 29, 2011

Submitted November 2, 2011 - Decided

Before Judges Lihotz and Waugh.

On appeal from the Division of Youth and Family Services, AHU 09-1653.

De Marco & De Marco attorneys for appellant (Michael P. De Marco, on the briefs).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lori J. DeCarlo, Deputy Attorney General, on the brief).

PER CURIAM

Appellant S.M.P. (Sally)1 appeals from the final administrative action of the Director of the New Jersey Division of Youth and Family Services (Division) finding that Sally neglected her then thirteen-year-old son A.P. (Albert) and his friend N.P. (Ned). We reverse as to Ned and remand for further proceedings as to Albert.

I.

We discern the following facts and procedural history from the record on appeal.

In September 23, 2009, the Division was notified by Albert's school of an incident in which Albert used an aerosol spray containing hair gel to ignite a ping-pong ball and Ned's sneakers, allegedly while Ned was still wearing them. The event was recorded and displayed on YouTube. The Division's investigation revealed that Sally was present during some or all of the event. The Division substantiated neglect by Sally with respect to Albert and Ned.

In a letter dated December 10, 2009, the Division notified Sally that it had substantiated allegations of neglect against her, based on "inadequate supervision with regard to [Albert] who was neglected." Although Ned was mentioned in the Division's Investigation Summary, which was enclosed with the letter to Sally, the Division's letter itself made no mention of neglect with respect to Ned.

The December 10 letter advised Sally that she had the right to appeal the substantiation of neglect. Sally retained counsel, who timely notified the Department of Children and Families that Sally was availing herself of that right. Counsel's letter requested a hearing before the Office of Administrative Law (OAL).

Prior to the scheduling of the hearing at OAL, the Division moved for summary disposition, asserting that the facts were not in dispute and that Sally's conduct constituted neglect as a matter of law.2 Sally opposed the motion on the grounds that the facts were not undisputed and that there was no neglect. In her certification in opposition, she asserted:

5. Contrary to the [Division's] allegation, I made [every] effort to intervene and prevent [Albert] from taking the actions in question.

6. Despite my efforts, it was clear to me that [Albert] and [Ned] were fascinated with the idea. As [Albert's] mother, I have distinct knowledge of his behavior and tendencies and I was certain that [Albert] would have ultimately satisfied his curiosity and performed said actions, whether in my presence or outside of [my] presence. Rather than simply protesting and then turning a blind eye to the situation and what I knew to be reality, I elected to supervise these actions so as to ensure that he was not harmed and eliminate the risk thereof.

7. I also strongly dispute that I advised the [Division's] Case Worker that I was not aware of the incident regarding the lighting of a ping pong ball.

8. Additionally, I dispute the [Division's] alleged quote, "Oh, that, all kids play with fire it is not a big deal," and the manner in which they attempt to characterize the same.

9. At all times, I acknowledged the serious nature of this matter and never intended to downplay the same. At the same [time], I attempted [to] emphasize that these type[s] of actions are posted all over the internet for children to view, as well as the reality of the situation as expressed in Paragraph 6 above.

. . . .

16. [Albert] never "spray[ed] additional aerosol to increase the size of the flames, while [Ned] was still wearing [his sneakers]" as alleged by the [Division].

17. Attached hereto and made a part hereof as Exhibit "A" is a copy of the letter report of Sofia Kondrashin, M.D., dated March 29, 2010. While the report speaks for itself, the same reveals that [Albert] has been diagnosed with General Anxiety Disorder, Attention Deficit Disorder, and Oppositional Defiant Disorder.

Sally further asserted that she was neither the parent nor guardian of Ned. She also disagreed with other factual assertions made in the Division's moving brief.

In its letter reply brief, the Division again asserted that the material facts were uncontested. It also argued that Sally was Ned's "guardian" within the meaning of N.J.S.A. 9:6-8.21(a) at the time of the incident.

In an order dated October 15, 2010, the Director granted summary disposition and denied Sally's request for a hearing at OAL. The order is totally devoid of findings of fact, conclusions of law, or any other explanation of the reasons for the decision. This appeal followed.

II.

On appeal, Sally argues that (1) the Director's decision was arbitrary, capricious, and unreasonable, (2) her conduct did not constitute neglect of Albert, and (3) N.J.S.A. 9:6-8.21 does not apply to her with respect to Ned. The Division urges us to affirm the Director's decision.

"[W]e are bound to uphold an agency's decision 'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002) (citing Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000)). Our function is not to merely rubberstamp an agency's decision, rather, our function is "to engage in a 'careful and principled consideration of the agency record and findings.'" Williams, supra, 330 N.J. Super. at 204 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

We must determine whether the agency's findings "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." In re Taylor, 158 N.J. 644, 656 (1999) (citations and internal quotation marks omitted). In this case, of course, there was no hearing and, consequently, no credibility determinations.

A.

Before turning to the issue of whether Sally neglected her son Albert, we address the issue of whether N.J.S.A. 9:6-8.21(c)(4)(b) governs the relationship between Sally and Ned. Unlike Albert, Ned is not Sally's child and, in fact, they are not related. Ned was a friend of Albert.

N.J.S.A. 9:6-8.21(a) defines "[p]arent or guardian" as

any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care. Parent or guardian includes a teacher, employee or volunteer, whether compensated or uncompensated, of an institution who is responsible for the child's welfare and any other staff person of an institution regardless of whether or not the person is responsible for the care or supervision of the child. Parent or guardian also includes a teaching staff member or other employee, whether compensated or uncompensated, of a day school as defined in [N.J.S.A. 9:6-8.21].

The Division argues that, because the event took place while Ned was a guest at Sally's home and while she was present, Sally had "assumed responsibility for [Ned's] care, custody or control" and had "a legal duty for such care." Consequently, the Division argues, Sally was Ned's "guardian" for the purpose of the statute. The Division cites no case to support its argument that a parent becomes the guardian for the purposes of the statute when a friend of the parent's own child is playing at the parent's house or on the parent's property. The only case cited by the Division, J.S. v. R.T.H., 155 N.J. 330 (1998), holds that a spouse can be liable in a tort action for failing to take reasonable action to protect a visiting child from sexual abuse by the other spouse.

Although Sally might have had some civil liability had Ned been injured, we are satisfied that Ned's presence at Sally's home as her son's playmate did not confer on Sally the type of custody or legal duty referred to in the statute. Sally was not acting in loco parentis in any way. Consequently, she was not Ned's guardian within the meaning of N.J.S.A. 9:6-8.21(a).

We reverse the order on appeal as it relates to Ned.

B.

We now turn to the issue of whether Sally neglected Albert.

An "abused or neglected child" is defined, in part, as a child younger than eighteen years old

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 . . . ; 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)(b).]

Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court held that mere negligence does not trigger the statute. T.B., supra, 207 N.J. at 306-07; see also G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). Rather, the failure to exercise a minimum degree of care refers "'to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 177-78). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306.

Grossly negligent conduct requires "'an indifference to consequences.'" Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (quoting State v. Gooze, 14 N.J. Super. 277, 282 (App. Div. 1951)). Recklessness occurs when the actor "intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences." Schick v. Ferolito, 167 N.J. 7, 19 (2001) (citing Prosser & Keeton on the Law of Torts, 34 at 212 (5th ed. 1984)).

In Schick, the Court held:

The standard [for reckless conduct] is objective and may be proven by showing that [the actor] proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position. Reckless conduct is an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent. Reckless behavior must be more than any mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention . . . . Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others. Negligence may consist of an intentional act done with knowledge that it creates a risk of danger to others, but recklessness requires a substantially higher risk. The quantum of risk is the important factor.

[Id. at 19-20 (citations and internal quotation marks omitted).]

A determination of whether a parent's or guardian's conduct "is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309 (citing N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 544 (App. Div. 2011)). "The cases are fact-sensitive." Ibid. Accordingly, a parent or guardian's "conduct must be evaluated in context based on the [dangers and] risks posed by the situation." Ibid. (citing G.S., supra, 157 N.J. at 181-82).

Despite the Division's assertion that there were no material facts in dispute, the record demonstrates otherwise. Sally specifically disputed some of the statements attributed to her that were reflected in the Division's original finding of neglect. More importantly, she offered an explanation for her conduct that was totally ignored by the Director's unexplained decision.

We are not prepared to hold as a matter of law on the record before us that, if Sally's explanation of her reasons for acquiescing in, but also monitoring, Albert's activity is true, her conduct nevertheless constituted "neglect" as defined by the statute and discussed in T.B. and G.S. If a parent knows that a child will engage in a potentially dangerous activity even when forbidden and that the child has the capacity to do so, there could well be circumstances under which the more prudent course of action would be to monitor the activity rather than to acquiesce in its taking place totally unsupervised. The Director never discussed that issue, nor did she articulate what steps Sally should have taken in the face of her belief that Albert would not obey her direction to desist.

As the Supreme Court observed in T.B., supra, 207 N.J. at 309, cases of this type are fact-sensitive. We do not know on what facts the Director based her decision, why she rejected Sally's explanation of her conduct, or why she determined that, despite an apparently good faith belief that she was acting responsibly, Sally's conduct nevertheless amounted to "grossly negligent or reckless conduct." Id. at 306.

This case illustrates the importance of adequate findings of fact and conclusions of law to assure basic fairness and to enable intelligent review of the decisions of an administrative agency. N.J. Bell Tel. Co. v. Commc'ns Workers of Am., 5 N.J.354, 374-379 (1950); In re Crowley, 193 N.J. Super.197, 214 (App. Div. 1984); In re Application of Union Community Bank, 144 N.J. Super.39, 46-47 (App. Div. 1976). As we have observed before:

In reviewing an agency decision to determine whether it is supported by substantial credible evidence and is not arbitrary, unreasonable or capricious, we must have a clear statement from the administrative agency as to the basis for its decision. The requirement of findings is far from a technicality, but is rather a matter of substance. A conclusion requires evidence to support it and findings of appropriate definiteness to express it.

[Crowley, supra, 193 N.J. Super. at 214 (citations omitted).]

The Director's decision in this case does not even attempt to satisfy those requirements. The Attorney General's argument that we should ignore the lack of explanation is untenable.

Consequently, the order on appeal must be vacated and the matter remanded for a fact-finding hearing at the OAL as to Albert only.

C.

In summary, we reverse the finding of neglect with respect to Ned. We vacate the Director's October 15, 2010 order as to Albert and remand the matter for referral to OAL to be heard as a contested case. We do not retain jurisdiction.

1 We use pseudonyms to refer to the individuals in this case for the purpose of clarity.

2 We note that the Division's brief on the motion for summary disposition only refers to Albert as the neglected child.