NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES v. L.R.

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NOT FOR PUBLICATION WITHOUT THE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, DIVISION OF YOUTH

AND FAMILY SERVICES,1

Petitioner-Respondent,

v.

L.R.,

Respondent-Appellant.

December 24, 2013

Submitted December 17, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from the Division of Youth and Family Services, Department of Children and Families, Docket No. AHU 10-0621.

The Blanco Law Firm, attorneys for appellant (Pablo N. Blanco, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Virginia Class-Matthews, Deputy Attorney General, on the brief).

PER CURIAM

Defendant L.R. appeals from an order of the Department of Children and Families (DCF), Division of Youth and Family Services (Division), affirming a finding of neglect and entering her name in the child abuse registry pursuant to N.J.S.A. 9:6-8.11. We affirm.

During the early morning hours of January 31, 2010, the Division received an anonymous telephone call reporting that L.R. left her son, N.M., then age ten, and her daughter, D.M., then age seven, home alone when she went to work earlier that evening. The Division alerted the Wayne Police Department, which responded to the family's apartment and found the children unattended. The Division's resulting investigation substantiated the allegation of neglect, based on its determination that L.R. left her minor children home alone overnight, from the evening of January 30, 2010, until the morning of January 31, 2010, while she was at work. Previously, on two occasions in 2009, the Division had received reports that L.R. had left the children home alone. However, since L.R. was home and the children denied the allegations, the Division determined those prior incidents to be "unfounded."

L.R. requested an administrative hearing with regard to the Division's finding of neglect for inadequate supervision of the children overnight on January 30, 2010. The matter was then transmitted to the Office of Administrative Law (OAL) for a contested hearing before an Administrative Law Judge (ALJ). N.J.S.A. 52:14F-1 to -13.

The hearing was held on March 9, 2012 before ALJ Diana C. Sukovich. Two witnesses testified on behalf of the Division: Wayne Police Detective Paul Kuruc, and Division intake worker Jenny Sierra. L.R. testified on her own behalf. The documentary evidence considered by the ALJ included: (1) a January 31, 2010 screening summary; (2) Sierra's investigation summary dated January 31, 2010; and (3) the Wayne Police Department investigation report.

The evidence upon which the ALJ reached her initial decision and recommendation revealed that L.R. is employed as a school aide weekdays from 8:30 a.m. until 2:30 p.m. She is also employed at a hotel on weekends from 12:00 a.m. until 8:00 a.m. L.R. and the children reside in a first-floor apartment in Wayne that is part of a larger residential apartment complex consisting of approximately 380 units.

Det. Kuruc testified that when police arrived after receiving the anonymous call they knocked on the apartment door but initially got no response. According to their reports, the officers knocked on the front and rear outer doors and windows. After approximately one hour, after receiving no response, they contacted the building superintendent, who unsuccessfully attempted to gain access using a key for the front door. The officers continued to knock on the door, and eventually D.M. opened it, crying and stating to them, "Please don't arrest us, our mom is not home." N.M. then emerged after his young sister, stating, "Please don't take us. We did not do anything wrong."

The children informed Kuruc that L.R. was working at the hotel, and that they were left home alone because L.R. could not get a babysitter or someone to watch them. They further stated that this had occurred previously on several occasions. L.R. was called at the hotel and returned to the apartment a short time later. She too told Kuruc that she left the children home alone because she had to go to work and she was unable to find a babysitter, and that it was difficult for her to get one.

Sierra was the Division's investigative worker assigned to the case. She testified that after the anonymous phone call was received, two special response workers, Jessica Checo and Shaundra Plumey, arrived at the apartment around 3:45 a.m. They spoke to Kuruc, who advised that L.R. indicated that this was the first time she had left the children home alone, and that she had asked a friend to babysit but the friend never arrived.

L.R. told the special response workers that the children were asleep when she left for work around 11:30 p.m. L.R. indicated that a friend, "Irving", was supposed to come and watch the children but that he never arrived. She admitted that the children made her aware Irving never arrived, but that she could not afford to lose her job, so she remained at work.

The workers also spoke with the children. D.M. reported hearing a knocking on the door for a very long time, and that she was scared so she woke up her brother. They denied being left with anyone that evening after L.R. went to work. N.M. advised that sometimes the children would accompany their mother to work and sleep at the hotel, but other times they stayed home by themselves. Both children agreed that they had been staying home alone since their grandmother passed away in 2008.

Upon being assigned to the case the following day, Sierra requested that L.R. provide the contact information for Irving. L.R. declined to do so, and acknowledged that she had left the children home alone that evening. L.R. further advised Sierra that the children's father was not a reliable caretaker, and was behind on his child support payments.

L.R. testified that she had a babysitter, S.J., who watched the children from September 2009 until the third week of January 2010, when L.R. worked at the hotel. S.J. had a family emergency, and on the date in question L.R. had arranged for "Ivana" (not Irving), to watch the children. L.R. cited Ivana's status as an illegal alien as the reason she did not disclose her identity to the police or Sierra. L.R. explained that before leaving for work, she called Ivana around 11:20 p.m., who indicated that "I'm just a couple lights away from you." Relying on this conversation, L.R. then left for work, where she remained until she received a call from the police around 2:00 a.m.

L.R. testified that although the front door to the apartment was locked, she left both the rear inner and outer doors unlocked so that Ivana could gain access. She did not remember whether she called home to find out if Ivana ever arrived. Nor did she recall telling the Division workers that she had called home and discovered the babysitter had not arrived, but then remained at work because she could not afford to get fired. L.R. denied leaving the children home alone on any prior occasion when she went to work at the hotel, and denied intentionally leaving them home alone on this occasion.

On April 20, 2012, the ALJ issued a comprehensive twenty-one page written decision setting forth detailed factual findings and legal conclusions. She noted that L.R. did not dispute that the children were home alone on the evening in question. Rather, the disputed facts centered on the circumstances surrounding that occurrence.

The ALJ was unable to conclude that the children were left home alone previously, finding that the children's statements to that effect were uncorroborated, and that the Division had previously investigated similar allegations and determined them to be unfounded. The judge noted, however, that L.R.'s testimony on this issue "raises some questions."

Next, as to the January 30, 2010 incident itself, the judge found that "[L.R.'s] testimony, and the statements which she made during the investigation [] regarding [Ivana], were not supported by persuasive evidence, and I do not give them substantial weight." The judge further characterized as "contradictory" L.R.'s testimony as to whether she had made arrangements with anyone to babysit that evening, and whether she had called home following her arrival at the hotel to ascertain whether the babysitter had arrived.

The ALJ, citing G.S. v. Dep't of Human Servs., 157 N.J. 161 (1999), ultimately was "not persuaded by L.R.'s arguments that her children were home alone at the time in question because of an accident, and that she did not intend to leave them alone. Her actions were 'deliberate,' and she should have foreseen that they put her children at risk for harm." The judge reasoned:

I am persuaded that [L.R.'s] actions at the time in question were "grossly or wantonly negligent", G.S., supra, because of factors, in part, noted by [the Division's] counsel. Those are the young ages of the children and the fact that the rear outer and inner doors to [L.R.'s] apartment unit were left unlocked when L.R. left for the [h]otel. It is not difficult to envision the possible risks posed to the children the arrival of a dangerous individual, the occurrence of a fire, the possibility that the children may have awakened and left the apartment and/or been afraid, etc. which risks, in my judgment, should have been reasonably known to [L.R.]. Such is also evidenced by the fact that the children did not respond to knocking by the Officers for some time, and when D.M. opened the apartment door, she appeared frightened. The risks posed to the children were exacerbated by the fact that respondent's apartment is located in a very large complex, although such is not determinative. Even if, as L.R. testified, she never experienced any "problems", individuals usually come to the front door, the rear outer door was usually unlocked, and the children were usually asleep when she left for the [h]otel and returned home, the risks to the children at the time in question still existed. Parenthetically, it is not evident how respondent could have known if her children always slept throughout the evening, and their statements that they frequently spoke with her while she was at the [h]otel indicate that they did not. In fact, the children may have been at greater risk if they slept through the night.

Based upon these findings, the ALJ determined that the Division "proved, by a preponderance of the credible evidence, that [L.R.'s] conduct on January 30, 2010, commencing at approximately 11:15 p.m. and continuing into the morning of January 31, 2010, when she returned to her residence in response to a telephone call from a police officer, which resulted in N.M. and D.M. being home alone, constituted child neglect . . . pursuant to N.J.S.A. 9:6-8.21(c)(4)." The Director concurred with the ALJ and issued a final decision confirming the finding of neglect. This appeal followed.

Our review of agency determinations is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's decision unless we "find [it] to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Additionally, we give "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), and therefore accept their findings of fact "when supported by adequate, substantial and credible evidence." Id. at 656-57. "Furthermore, it is not our function to substitute our independent judgment for that of an administrative body[, and] . . . we will not weigh the evidence, determine the credibility of witnesses, . . . draw inferences and conclusions from the evidence, or resolve conflicts therein." De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

When reviewing a final agency action under the arbitrary, capricious, and unreasonable standard, we must examine whether the agency's decision conforms with relevant law; whether the decision is supported by substantial credible evidence in the record; and whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. Stallworth, supra, 208 N.J. at 194.

Title Nine controls the adjudication of abuse and neglect cases. N.J.S.A.9:6-8.21 to -8.73. The primary concern of Title Nine "is the protection of children, not the culpability of parental conduct." G.S., supra, 157 N.J.at 177. Pursuant to N.J.S.A.9:6-8.21(c)(4)(b), an abused or neglected child means:

[A] child less than 18 years of age 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.

The Division must prove the act of abuse or neglect by a preponderance of the evidence. N.J.S.A.9:6-8.46(b).

Where only a risk of harm is alleged, the court must focus on whether the parent failed to exercise "a minimum degree of care." Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J.294, 307 (2011). "[A] parent fails to exercise a minimum degree of care where a parent knows of the dangers inherent to a particular situation." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.320, 329 (App. Div. 2011) (citing G.S., supra, 157 N.J.at 181-82). "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. When a parent acts in a "grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk." T.B., supra, 207 N.J. at 307. "Courts need not wait to act until a child is actually irreparably impaired" to find neglect. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

On appeal, L.R. argues that the finding of child neglect should be reversed because the facts fail to establish that her actions were willful and wanton under N.J.S.A. 9:6-8.21(c)(4)(b). She relies on T.B., supra, where the mother of a four-year-old inadvertently left the child unattended at her parents' home when she went to meet a friend for dinner. Id. at 297-98. The mother and her son lived with the mother's parents, who often cared for the child. Id. at 296. The mother was familiar with her parents' routine, and believed that they were home when she left because they "were always home on Sunday nights" and their car was in the driveway. Id. at 298, 310. While acknowledging that this was a "close case," the T.B. court held that the mother's conduct did not amount to gross negligence. Id. at 309. The court reached its holding in part because it was "not a situation in which [the mother] left her four-year-old son at home alone knowing there was no adult supervision." Ibid.

In contrast to T.B., here L.R. knew her children were alone and unattended when she left them at 11:15 p.m. Moreover, the judge clearly had difficulty accepting L.R.'s version of events, labeling her testimony "contradictory" and "unpersuasive." Even if L.R. did anticipate the babysitter to arrive within a short time, the judge correctly identified the risks of harm to the children that this situation engendered. Moreover, L.R. made no demonstrable efforts to ensure the sitter had arrived, and thereby failed to exercise a minimum degree of care. The record demonstrates that D.M. was scared and crying when the police responded. We commend L.R.'s diligence in working two jobs to meet the family's expenses, and sympathize with her plight. Nonetheless we conclude that the ALJ's findings, adopted by the DCF, are supported by adequate credible evidence and the conclusions are consistent with applicable law.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.