DEPARTMENT OF CHILDREN amp FAMILIES v. A.S

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2452-10T3

DEPARTMENT OF CHILDREN &

FAMILIES,

Appellant,

v.

A.S.,

Respondent.

Argued September 12, 2011 Decided September 29, 2011

Before Judges Parrillo and Grall.

On appeal from the Division of Youth & Family Services, Department of Children and Families.

Margaret M. Mahon argued the cause for appellant.

Eden F. Feld argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

A.S. appeals from a final decision of the Division of Youth and Family Service (DYFS) that determined she had neglected her three-year-old child, S.S., by leaving her alone for thirteen minutes in a car parked outside a B.J.'s store while she went inside to buy groceries. For the following reasons, we reverse.

The essential facts are not in dispute. On July 28, 2007, A.S. drove with S.S. in the family minivan to a nearby B.J.'s Wholesale Warehouse in Ocean Township to purchase a few last-minute items for a barbeque her family was hosting. B.J.'s is a large warehouse store with windows only on the front entrance doors and is located in a safe area. It was daylight and the temperature was around eighty-six degrees.

When A.S. arrived, she parked her car in the front row of parking spots, about fifty feet from the store entrance. While it was her intention to bring S.S. into the store with her, A.S. relented after S.S. repeatedly begged her to stay in the car and continue watching the movie on the car's DVD player. Reasoning that she would be in the store for only a brief time, A.S. took the keys out of the ignition of the 2007 Honda Odyssey, used the vehicle's automatic start feature to start the car so that the air conditioning remained on, and then locked the door with the windows closed.1 A.S. left S.S. fastened into her car seat, watching her DVD, and proceeded into the store.

Soon after she entered, a customer reported to a store employee that a child was alone in a vehicle in the parking lot. At around 11:15 a.m., the employee made an announcement over the store's P.A. system giving the license plate and type of vehicle and asking the owner of the vehicle to come to the service desk. The employee then called her manager, who went outside to inspect the vehicle. When there was no response, the store employee made another announcement three minutes later and, once again, no one responded. The police were then contacted at 11:20 a.m.

Officer Jason Lester of the Ocean Township Police Department responded to the call, arriving at the B.J.'s parking lot at 11:24 a.m., where he observed S.S. in the minivan secured in her car seat, with the windows up and doors locked. Lester immediately tried to open the door using a "lock out tool" consisting of a four-foot iron rod as well as a plastic wedge but was unsuccessful. Approximately four to five minutes after the officer's arrival around 11:28 a.m. A.S. returned to the vehicle, surprised to see Lester and the store employees there. After Lester explained their presence, A.S. opened the vehicle and Lester pulled S.S. out of her car seat and handed her to the store manager. S.S. appeared calm, "wasn't in danger," and the air conditioning was running in the car. When Lester asked S.S. what she was doing, she responded that "she was just waiting for her mother to come out." Then, Lester placed A.S. in handcuffs and in the back of his squad car for a short time. Afterwards, he removed the cuffs from A.S., assisted her out of the patrol car, warned her of the dangers of leaving a child alone in the car, and allowed her to take S.S. home. Lester estimated a total of thirteen minutes were unaccounted for.

Lester subsequently referred the matter to DYFS and an agency worker, who interviewed A.S. the next day, issued a report assessing risk to S.S. as low, but recommending that DYFS substantiate the neglect finding against A.S. based on a number of factors including A.S.'s admission of guilt and the dangers involved with leaving an unattended child in a car in warm weather. Ultimately, DYFS substantiated neglect against A.S. under N.J.S.A. 9:6-8.21c(4)(b), but no criminal charges were filed.

A.S. appealed the finding of substantiated neglect and the matter was transferred to the Office of Administrative Law (OAL), where a contested hearing was held on June 15, 2010. On August 30, 2010, the Administrative Law Judge (ALJ) issued an initial decision concluding that, while A.S. was an "excellent mother" and an "otherwise fit and responsible parent," nevertheless in this "isolated incident," A.S. failed to exercise a minimum degree of care by being aware of the dangers of leaving her child in the minivan and that A.S.'s actions rose to the level of willful or wanton misconduct that constituted gross negligence. Consequently, the ALJ recommended upholding the Division's finding of substantiated neglect. On November 29, 2010, DYFS issued its final decision, affirming the ALJ's initial decision, which substantiated child neglect, and consequently, placed A.S.'s name on the Child Abuse Central Registry pursuant to N.J.S.A. 9:6-8.11.

On appeal, A.S. argues DYFS erred in its application of the law to the facts and its determination of substantiated child neglect was therefore unsupportable. We agree.

Our review of a final determination of an administrative agency is limited. We "defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Thus, we 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." In re Herrmann, 192 N.J. 19, 27-28 (2007). However, we are "in no way bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer Affairs of Dep't of Law & Public Safety, 64 N.J. 85, 93 (1973). "[I]f an agency's statutory interpretation is contrary to the statutory language, or if the agency's interpretation undermines the Legislature's intent, no deference is required." Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008) (quoting In re N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997) (internal quotation marks omitted)). Where the facts are undisputed, the agency's determination that a parent was grossly negligent is a conclusion of law to which we are not required to defer. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., ___ N.J. ___, ___ (2011) (slip op. at 18-19).

A "neglected child" is a child under the age of eighteen

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 . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, [or] by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof

. . . .

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

The Supreme Court has enunciated the standard encapsulated within the phrase "minimum degree of care."

[T]he phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.

Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result . . . . [A]ctions taken with reckless disregard for the consequences also may be wanton or willful. . . .

[T]he difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. . . .

Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others.

[G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 178-79 (1999) (citations omitted).]

The label "grossly negligent" turns on an evaluation of the seriousness of the actor's misconduct, which, in turn, is to be analyzed in the context of the dangers and risks associated with the situation. T.B., supra, ___ N.J. at ___ (slip op. at 27-28). "[T]he standard is not whether some potential for harm exists. A parent fails to exercise a minimum degree of care when 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 the child.'" N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App. Div. 2009) (quoting G.S., supra, 157 N.J. at 181.)

In other words, "the inquiry should focus on 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. 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." T.B., supra, ___ N.J. at ___ (slip op. at 28-29). The inquiry is fact sensitive and not every failure to perform a cautionary act is abuse or neglect. Id. at ___ (slip op. at 28).

For instance, in J.L., supra, the mother J.L. allowed her two young sons, aged five and three, to walk from a playground to their visible condominium while she remained at the playground. 410 N.J. Super. at 161. The older son needed a dry shirt and the younger needed to use the bathroom. Ibid. The boys did not have to cross the street to access the condominium and their mother could see their entire journey. Ibid. When the boys entered the apartment, however, the door closed behind them and they were unable to open the door to leave because the door was equipped with a child-proof cover. Id. at 161-62. Consequently, the older son called 9-1-1, and the police arrived 10 minutes later. Id. at 162. We found that the mother's conduct, although arguably inattentive or even negligent, did not meet the G.S. standard of grossly negligent. Id. at 168-69.

Most recently, in T.B., supra, the Supreme Court determined that a mother who left her four-year-old child unsupervised for two hours under the mistaken belief that his grandmother was home, although plainly negligent, was not grossly negligent or reckless in her actions. ___ N.J. at ___ (slip op. at 33-34).

As with J.L., supra, and T.B., supra, this is a close case. Leaving a three-year-old child unattended in a car in a store parking lot plainly bespeaks negligence, especially where there is no vantage point from inside the store. On the other hand, this was clearly an aberrational incident for a mother who the ALJ characterized as otherwise "excellent" in her care of the child and who DYFS itself assessed as a low risk. Moreover, there were several precautionary measures taken by A.S. that reduced the potential risk of harm to S.S. and thus weigh favorably in mitigation of A.S.'s misconduct. It was broad daylight and A.S. parked the car in a safe area near the entrance to the store. The child was securely buckled in a car seat. The car doors were locked; the windows closed; and the vehicle was inoperable without a key and inaccessible to third parties, as evidenced by the police officer's failed attempts to gain entry. The air-conditioning was left on for the child's comfort. S.S., who appeared calm and unfazed upon discovery, was left alone for only a brief period of time, estimated to be thirteen minutes. To be sure, A.S.'s action in leaving her three-year-old child alone for even a relatively short period of time was careless and heedless. However, the incident was out of the ordinary and unlikely to recur. We conclude that under all the circumstances known to A.S. at the time, it did not rise to the level of gross negligence or recklessness and therefore did not constitute a failure to "exercise a minimum degree of care" to support a finding of substantial neglect. In light of this determination, we are not required to address A.S.'s challenge in connection with the Child Abuse Registry because her name will no longer be recorded there.

Reversed.

1 The car's automatic lock feature allows the car to be started and turned off remotely, without there being a key in the ignition. Moreover, although the vehicle is running, it cannot be moved at all if the key is not in the ignition.