DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT - v. M.A -

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5085-09T1

DEPARTMENT OF CHILDREN AND

FAMILIES, INSTITUTIONAL ABUSE

INVESTIGATION UNIT,

Petitioner-Respondent,

v.

M.A.,

Respondent-Appellant.

_________________________________________

December 1, 2011

Argued October 12, 2011 - Decided

Before Judges Reisner and Hayden.

Onappeal fromthe Divisionof Youth& Family Services, Departmentof Childrenand Families, Docket No. AHU # 07-310.

Harold N. Springstead argued the cause for appellant (Springstead & Maurice, attorneys; Mr. Springstead, on the brief).

Charisse M. Penalver, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief).

PER CURIAM

M.A., a special education teacher, appeals from the May 19, 2010 final decision of the Acting Commissioner of the Department of Children and Families (DCF), finding that she had neglected D.G., a student in her class, within the definition of N.J.S.A. 9:6-8.21(c)(4)(b). We reverse.

We derive the following facts from the record developed before the Administrative Law Judge (ALJ). On November 27, 2006, sixteen students and thirteen staff members left a school for children with developmental disabilities in Bergen County on a class trip to see a play in New Brunswick. They traveled by bus. M.A. and her two teacher assistants were in charge of their class of six students, which included D.G., a six-year-old child who was autistic and functionally non-verbal. Students were not assigned seats on the bus, and M.A. sat in the back with the teacher assistants and the students in their class.

At approximately 11:00 a.m., the bus stopped for lunch at a fast-food restaurant in New Brunswick. There, M.A. sat with three of her students and a child from another class. Her two assistants sat at a nearby table with the three remaining students, including D.G. When the group started to get ready to board the bus, two children at M.A.'s table began fighting over a toy, which led to a "major tantrum" by another student, S., making it difficult to get him on the bus. Finally, M.A. and the four children at her table got on the bus, the last of the group to board. Because all the seats in the back were taken, M.A. took an empty seat up front. The bus driver asked if all children were on the bus. The head teacher asked her teachers the same question. M.A., assuming that her two assistants had brought the three children who had eaten with them onto the bus, answered "yes" without performing a head count. School policy required that the teacher and the teacher assistants perform a head count during such a transition, but neither M.A. nor her teacher assistants conducted one at this time.

When the bus arrived at the theater, which was less than two miles from the fast-food restaurant, M.A. realized that D.G. was missing. She immediately called the restaurant and discovered that D.G. was safe and being cared for by the staff. The bus driver and M.A. hurried back to the restaurant and found D.G. calmly eating fries. They took him to the theater where he was reunited with the group and watched the play.

After the school reported the matter to the Division of Youth and Family Services on the day of the incident, the Institutional Abuse Investigation Unit (IAIU) of DCF began an immediate investigation. D.G. was examined and showed no signs of injury, and his mother reported that he had not seemed at all distressed when he returned from school that day. Both of M.A.'s teacher assistants, when interviewed, acknowledged that they were required to do a head count but failed to do so, and both accepted some responsibility for the child being left at the restaurant. M.A. received a written reprimand for violation of school policy and was switched from D.G.'s class to another class for about two weeks.

The IAIU investigator also interviewed the manager of the fast-food restaurant, who reported that shortly after the school group left, she had noticed a young boy alone playing with a toy. When the manager spoke to the child, he did not reply but did not seem afraid. Since she did not know the name of the school group, the manager had her staff call the police to report the lost child, then she gave the child some fries and sat with him to keep him company. Within ten or fifteen minutes from the time the group left, a teacher called looking for the boy, and subsequently retrieved the child before the police arrived.

After interviewing all involved, the IAIU investigator found that D.G., by being left unsupervised at the fast-food restaurant, had been placed at substantial risk of harm. The IAIu concluded that, pursuant to N.J.S.A. 9:6-8.21(c), M.A. had been negligent due to her failure to provide adequate supervision to her student.

M.A. appealed the Division's substantiation of neglect to the Office of Administrative Law, where the matter was tried on stipulated facts and some limited testimony. M.A. took responsibility for the incident, acknowledging that she should have done a head count when she got to the bus, rather than assume that her two teacher assistants had brought the three children they had sat with at lunch to the bus. The Division argued that M.A.'s failure to follow the proper procedure of taking a head count amounted to neglect due to inadequate supervision. In her legal analysis, the Administrative Law Judge (ALJ) determined that M.A. was not "reckless or wanton but . . . she was neglectful." Consequently, the ALJ concluded that M.A. placed the child at substantial risk of harm "by failing to exercise ordinary care" and affirmed the agency's finding of neglect.

The Acting Commissioner adopted the ALJ's conclusion that M.A. was negligent under N.J.S.A. 9:6-8.21(c)(4) but rejected her analysis that M.A. was not wanton and reckless. The acting Commissioner held:

Here the cautionary act would have been as simple as conducting the requisite head count. The failure to conduct a head count when dealing with a young special needs population exposed D.G. to a substantial risk of harm contemplated within N.J.S.A. 9:6-8.21(c). M.A. was ultimately responsible for ensuring all children under her care were accounted for. Her failure to even undertake the most basic precaution of a head count is willfully and wantonly negligent of her responsibilities in her capacity as guardian for these children.

This appeal followed.

On appeal, M.A. argues that the Acting Commissioner erred in her application of the law to the facts and thus the determination of substantiated child neglect is unsupportable. We agree.

We must "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.'" Dep't of Children and Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011) (quoting In re Hermann, 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). 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 v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We must determine whether the agency's finding could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

However, we are not bound by an agency's interpretation of a statute or its determination of a strictly legal issue. Mayflower Sec. Co., supra, 64 N.J. at 93. Moreover, 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. T.B., supra, 207 N.J. at 308.

In the provision at issue here, an "abused or neglected" child is defined 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 the proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.

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

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." G.S. v. Dep't of Human Servs., 157 N.J. 161, 180-81 (1999).

In G.S., the Court explained that "[t]he phrase 'minimum degree of care'" denotes "something more than ordinary negligence" and "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)). Further, willful or wanton conduct is conduct "done with the knowledge that injury is likely to, or probably will, result." Id. at 178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).

In analyzing whether behavior is grossly negligent or reckless, the Supreme Court in G.S. stressed that the court's 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.

[Id. at 181-82.]

However, the "cautionary act" that leads to a determination of failure to provide a minimal degree of care must be informed by the grossly negligent or recklessness standard that G.S. established. T.B., supra, 207 N.J. at 306-07. "In other words, every failure to perform a cautionary act is not abuse or neglect. When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute." Ibid.

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) (citation omitted). "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." Ibid.

The necessary inquiry into whether an act or omission is grossly negligent or reckless can be difficult to make at times and is quite fact sensitive. G.S., supra, at 178. In N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159 (App. Div. 2009), we found that a mother who allowed her young sons to walk home alone from the playground to their condominium, which she could see from the playground, was inattentive or perhaps negligent, but her conduct did not meet the standard of gross negligence or recklessness. Id. at 168-69. Most recently, in T.B., our Supreme Court determined that a mother who left her four-year-old child unsupervised in her home under the mistaken belief that his grandmother was there, although plainly negligent for not verifying that belief, was not grossly negligent or reckless in her actions. T.B., supra, at 309-10.

Based upon the above legal principles, we are satisfied that the record does not support the Acting Commissioner's conclusion that M.A.'s conduct amounted to neglect under N.J.S.A. 9:6-8.21(c)(4)(c). Although M.A., as the teacher, was ultimately responsible for her six students, she was aided by two teacher assistants, who together had been caring for three of those children. When M.A. did not take a head count, she had three of the six class members with her and she incorrectly assumed that the assistants had boarded the bus with the other three children, who were still with them. There is no dispute that the better practice would have been to take a head count. Nevertheless, as in T.B., supra, M.A.'s erroneous assumption that the child was being supervised does not equate to the indifference to a highly probable danger and the conscious disregard for the consequences necessary to prove recklessness. Schick v. Ferolito, supra, 167 N.J. at 19. Here, M.A.'s mistaken reliance on the two teacher assistants made her conduct, although perhaps negligent, not such an extreme disregard of a high and excessive degree of risk as to amount to recklessness or gross negligence. While we do not condone M.A.'s failure to follow the head count policy, we conclude, under the circumstances that arose at the time, that M.A., although negligent, was not grossly negligent or reckless.

The agency's decision is reversed and the matter is remanded for removal of M.A.'s name from the Central Registry.

Reversed and remanded.