A-0NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES INSTITUTIONAL ABUSE INVESTIGATION UNIT - v. T.L - July 27, 2015

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DEPARTMENT OF

CHILDREN AND FAMILIES,

INSTITUTIONAL ABUSE

INVESTIGATION UNIT,

Petitioner-Respondent,

v.

T.L.,

Respondent-Appellant.

__________________________________

July 27, 2015

Before Judges Yannotti and Lihotz.

On appeal from New Jersey Department of Children and Families, Docket No. AHU 12-0178.

Victoria D. Miranda argued the cause for appellant (Williams Law Group, LLC, attorneys; Allison C. Williams, of counsel and on the brief).

Jennifer V. Hoff, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lori J. DeCarlo, Deputy Attorney General, on the brief).

PER CURIAM

Defendant T.L. appeals from a final order issued by plaintiff, the Department of Children and Families (DCF), summarily upholding a substantiated finding of neglect because he failed to drop a pre-school student at his designated bus stop and left him alone on a school bus after the bus had been returned to the bus depot. Defendant seeks reversal of the determination and the removal of his name from the child abuse registry, arguing his failure to visually inspect the school bus cabin upon exiting did not rise to the level of gross neglect. He maintains the omission was an unintentional, isolated incident, which did not physically harm the child. We reject these arguments and affirm.

These undisputed facts are taken from the agency record. Asubstitute school bus driver for a private bus company, defendant "drove a school bus . . . four to five times per week." He substituted three days prior to the incident under review.

On November 21, 2011, defendant was assigned to transport seven students home, using a small five-rowed school bus. Defendant buckled the seatbelts of each student and commenced the route to each of their homes. Although he was unfamiliar with the bus route, each stop and the students who were to disembark at that stop were identified on a printed four-page route given to defendant.

Believing he completed the route, defendant returned to the bus depot at approximately 1:36 p.m. He delivered paperwork to the office, returned to the bus for several minutes, then left the bus with mechanics to check for a possible engine problem. Prior to exiting the bus, defendant did not perform a seat check to confirm the bus was empty. Defendant never noticed a four-year-old child, whose assigned stop he skipped, remained buckled to his seat on the bus.

A mechanic took the bus for a test drive in the parking lot, then placed it on a pad, lifting the front wheels off the ground. A call from the school transportation office informed the mechanics the child's mother had contacted the school when her son did not arrive at his designated bus stop. A second mechanic boarded the bus and heard the child weeping. The garage s surveillance video, recording events approximately one hour after defendant parked the bus, shows the child alone, crying.

Physically "shaking and crying" when he returned home, the child told his parents he could not unbuckle his seat belt, which the bus driver fastened. The next day the child refused to board the bus until his mother suggested she would follow it to school.

The Institutional Abuse Investigation Unit (Unit) was informed of the incident and conducted an investigation. After interviewing the child, his parents, various employees of the bus company, the mechanics, and defendant, the Unit substantiated defendant's neglect and inadequate supervision of the child per N.J.S.A. 9:6-8.21(c). The DCF informed defendant of the findings and his right to challenge them. Defendant appealed.

The State moved for summary disposition, N.J.A.C. 10:120A-4.2(a), which was granted. On August 20, 2013, Elizabeth W. Bowman, Assistant Commissioner of the Office of Performance Management and Accountability of DCF, issued a final order upholding the Unit's decision. The Assistant Commissioner filed an amplification of the order on December 19, 2013, detailing her factual findings and legal conclusions. This appeal ensued.

This court's review of an agency's final decision is limited. We defer to an agency's "expertise and superior knowledge [in] a particular field," N.J. Dep t of Children & Families v. R.R., 436 N.J. Super. 53, 60 (App. Div. 2014) (citation and internal quotation marks omitted), giving "considerable weight" to the interpretation and application of regulations within the specialized concern of the agency, Estate of F.K. v. Div. of Med. Assistance & Health Servs., 374 N.J. Super. 126, 138 (App. Div.) certif. denied, 184 N.J. 209 (2005). The challenging party bears the burden of demonstrating the decision was arbitrary, capricious or unreasonable. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). We reverse only upon a clear showing the final decision was "'arbitrary, capricious, or unreasonable, or that it lack[ed] fair support in the record.'" R.R., supra, 436 N.J. Super. at 60 (quoting Dep't of Children & Families v. T.B., 207 N.J.294, 301 (2011)).

Title Nine, N.J.S.A.9:6-1 to -8.106, governs adjudications of an abuse or neglect case. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 343 (2010). An "abused or neglected child" is one under age eighteen

[W]hose 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 . . . 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)].

See also N.J.A.C. 10:129-1.3 & 10:133-1.3.

"Parent or guardian" is also a defined term and includes

[A]ny 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.

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

The regulations, effective April 1, 2013, enumerate "aggravating factors" for determining whether abuse or neglect has been substantiated. See N.J.A.C. 10:129-7.5(a). Those factors applicable to this case include the failure to comply with agreed-upon conditions designed to ensure the child's safety; the tender age, delayed developmental status, or other vulnerability of the child; and significant lasting emotional impact on the child. N.J.A.C. 10:129-7.5(a)(2), (3) and (4).

As used in the statute, "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). The standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. Whether a defendant's conduct is grossly negligent and, therefore, constitutes abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b), is a question of law, which we review de novo. See T.B., supra, 207 N.J. at 308; see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

It is also well-settled that "[a]ctual harm need not befall a child for there to be a violation of N.J.S.A. 9:6-8.21(c)(4)(b)." R.R., supra, 436 N.J. Super. at 59. See also N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (holding a court need not wait until a child is actually harmed or neglected before it can act to address conduct adverse to a minor's welfare), certif. denied, 200 N.J. 503 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). "[N]on-intentional conduct may be sufficient to warrant a finding of abuse if injury to the child is demonstrated." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citing G.S., supra, 157 N.J. at 175-82), certif. denied, 182 N.J. 426 (2005). However, when "there is no evidence of actual harm, . . . the statute requires a showing of 'imminent danger' or a 'substantial risk' of harm before a parent or guardian can be found to have abused or neglected a child." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 8 (2013) (citing N.J.S.A. 9:6-8.21(c)).

Also, "[o]ne act may be substantial or the sum of many acts may be substantial" to prove abuse or neglect. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330, (App. Div. 2011) (citation and internal quotation marks omitted). However, if an isolated act "appears to be aberrational," labeling the parent a child abuser may be inappropriate. N.J. Dep't of Children & Families v. K.A., 413 N.J. Super. 504, 512-13 (App. Div. 2010), appeal dismissed, 208 N.J. 355 (2011). See also N.J.A.C. 10:129-7.5(b)(3) (recognizing the isolated or aberrational nature of the conduct as a mitigating factor when determining if abuse or neglect is established).

Guided by these principles, we examine the facts in this matter. Defendant argues the State did not carry its burden to establish abuse or neglect. SeeN.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 32 (2011) (providing the State bears the burden of proof for establishing a finding of abuse or neglect by a preponderance of the evidence through "the admission of 'competent, material[,] and relevant evidence'" (quoting N.J.S.A.9:6-8.46(b)). He maintains the events depict human error rising only to conduct that is "arguably inattentive or even negligent." N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009). Alternatively, he suggests one isolated act, which did not result in the child's physical harm, is insufficient to place him on the child abuse registry.

The DCF maintains defendant's intention in not relevant because he grossly ignored his minimal statutory responsibilities to the young children entrusted to his care, exposing this child to a serious, potential risk of harm and injury. We agree.

Our determination that defendant's conduct was grossly negligent turns on the seriousness of his misconduct, "'analyzed in light of the dangers and risks associated with the situation.'" T.B., supra, 207 N.J. at 306 (quoting G.S., supra, 157 N.J. at 181-82). We start by defining defendant's responsibilities when driving a school bus.

N.J.S.A. 18A:39-28 provides, "A school bus driver shall visually inspect the school bus to which he is assigned at the end of the transportation route to determine that no pupil has been left on the bus. . . ." The terms of the statute unequivocally impose a duty upon a school bus driver to inspect the bus prior to disembarking.

A mandatory company policy reinforces this duty. It provides: "[e]very driver must check his or her vehicle after each run to be sure every child is off the bus . . . . That means physically walking up and down the aisle and checking under the seats." This more stringent standard was known and presumably followed by defendant during his eight years of employment with the bus company. In upholding the Unit's finding of neglect, the Assistant Commissioner noted defendant "had received training regarding the necessity to check the bus for remaining students prior to departing."

Despite well-defined obligation directed to the safety of the young students in his charge, defendant committed a series of omissions resulting in the four-year old being left behind, alone on the bus. Prior to embarking on the new bus route, defendant did not familiarize himself with the stops. Even though he only was required to deliver seven children, who defendant "personally buckled . . . into their seats," he did not count the students as they exited the bus. Defendant followed the stops on three of the four page agenda. He never read the final page and skipped the final designated stop.

At the bus depot, defendant had multiple chances to perform the mandatory visual check before surrendering the bus for service, but failed to do so. Given how small the bus was, a search of the bus cabin prior to departing would have taken less than a minute to perform. By not conducting the mandatory seat check, in compliance with the clearly defined minimum requirements of every school bus driver, defendant unreasonably failed to "exercise a minimum degree of care" under the circumstances significantly risking the safety of this four-year old, who was unable to care for himself. The conclusion defendant's conduct satisfied the definition of statutory neglect is amply supported by the factual record.

We also reject defendant's proposition this represented an isolated incident, not likely to reoccur, and that no harm befell the child. Defendant ignored his duty to review his route agenda, verify he delivered all the children to their designated stops, and make the statutorily mandated seat check, despite the unmistakable responsibility to do so.

We acknowledge defendant's conduct was unintentional and he has demonstrated sincere remorse. However, the inadvertent nature of his actions cannot excuse the significant risk of physical harm and actual psychological harm his conduct caused this child. Fortunately, the child was found by the maintenance workers within an hour of defendant's departure and not physically hurt, although put at risk during the mechanics' service.

The Unit documented the child suffered emotional harm, demonstrated by his state when found, once returned to his home, and the following day when he feared boarding the bus. Left alone on the bus, unnecessarily restrained for almost an hour beyond the time he should have arrived home, the child was very scared. He knew the bus was no longer on its way to his home and had no idea what to do. Had the mechanic not heard the child weeping, his discovery may have been even further delayed.

We conclude defendant's acts and omissions rose to the level of gross negligence and support a finding of neglect under N.J.S.A. 9:6-8.21(c)(4)(b). See R.R., supra, 436 N.J. Super. 58-60 (affirming a finding of willful and wanton conduct by a school bus driver who failed to inspect the bus personally at the end of the route because she relied on a bus aide's representation no children remained on the bus). These facts do not support a determination defendant's conduct was either an accident or an understandable mistake.

We also conclude defendant was properly identified in the child abuse registry. According to N.J.S.A. 9:6-8.11, "[t]he child abuse registry shall be the repository of all information regarding child abuse or neglect that is accessible to the public pursuant to State and federal law." As we have discussed, defendant's conduct was culpable under Title Nine as grossly negligent. His inclusion in the registry is statutorily required.

Affirmed.