NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.H. and S.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3502-07T43502-07T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Appellant,

vs.

A.H. and S.W.,

Defendants-Respondents.

IN THE MATTER OF E.W.,

A Minor-Respondent.

__________________________________

 

Submitted: November 13, 2008 - Decided:

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FN-09-105-08.

Anne Milgram, Attorney General, attorney for appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Joyce Calefati Booth, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent minor E.W. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

Respondents A.H. and S.W. did not file a brief.

PER CURIAM

The Division of Youth and Family Services (DYFS) appeals the portion of the January 8, 2008 order removing A.H.'s name from the Central Registry. We reverse.

DYFS became involved in the lives of A.H. and S.W. after the death of their thirty-four month old daughter, M.W. Four days after the child's death, DYFS filed a verified complaint seeking custody of M.W.'s older brother, E.W. He was about four and one-half years old at the time.

On January 7, 2008, a fact-finding hearing commenced. At the conclusion of the State's case, the parties reached an agreement concerning custody of E.W. By this time, he was almost five years old. According to the agreement, DYFS would continue to exercise care and supervision of the child, but his parents, A.H. and S.W., would exercise joint legal custody. The boy would reside with his father, S.W. His mother, A.H., agreed to undergo therapy in her native country of France and to obtain employment and suitable housing. The parties' agreement anticipates that A.H. will return to New Jersey in eighteen months and E.W. would return to France with her, if she has engaged in therapy and obtained employment and suitable housing.

During the negotiation of the agreement, A.H.'s attorney proposed removal of her name from the Central Registry. DYFS refused to agree to this term. As a result, the handwritten notes of the agreement crossed-out this term. Nevertheless, when the terms of the agreement were placed on the record and DYFS indicated its consent, A.H. asked the judge to remove her name from the Central Registry and the judge agreed to do so.

DYFS filed a motion for reconsideration, which was denied. At this time, the judge provided a written memorandum in support of her decision to remove A.H. from the Central Registry. She rejected the contention that she had no jurisdiction to order this relief. She also found that DYFS had not demonstrated that A.H.'s conduct was willful or wanton. In doing so, she relied on the opinion of a medical examiner that M.W.'s death was accidental. She also reasoned that DYFS could not dismiss its complaint for custody and retain A.H. on the Central Registry.

On appeal, DYFS argues that the trial judge did not have jurisdiction to order the removal of A.H.'s name from the Central Registry and that the judge incorrectly determined that DYFS failed to demonstrate that A.H. had abused or neglected her child. We agree.

The following facts were developed at the fact-finding hearing. A.H. and S.W. met in France. They had two children: E.W. born on January 10, 2003; and M.W. born on October 25, 2004. In November 2006, S.W. moved to the United States. In June 2007, A.H. visited S.W. with the children. The couple planned that A.H. would return to France in September, but the children would remain with S.W. to enable them to learn English. A.H. intended to return to the United States at a later date and possibly remain here.

On the morning of August 20, 2007, A.H. drew a bath for the children. She placed thirty-four month old M.W. in the bathtub and went downstairs. She instructed E.W. to go upstairs and get into the bathtub and he did so. A.H. remained downstairs to clean. The children were unattended in the bathtub. When A.H. went upstairs to check on the children, E.W. was out of the bathtub using the toilet and M.W. was lying face down in the bathtub. A.H. tried to revive her, as did a neighbor, but the child was pronounced dead on arrival at the hospital.

The death of M.W. is undoubtedly tragic. We agree that DYFS did not establish that A.H. acted in a willful or wanton manner but that is not the standard. N.J.S.A. 9:6-8.21c defines an "abused or neglected child" as

a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, . . . (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child 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, as herein defined, to exercise a minimum degree of care . . . (b) 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 . . . .

Willful and wanton conduct is not the only type of conduct encompassed by this definition. In fact, the Supreme Court has held that a child may be abused even when the result is unintended. G.S. v. Dep't of Human Servs., 157 N.J. 161, 175 (1999). Leaving a young child unattended in a bathtub may satisfy the criteria of N.J.S.A. 9:6-8.21c(4)(b) under the circumstances of this case.

Moreover, the judge's reliance on the "other than accidental means" language employed in some portions of N.J.S.A. 9:6-8.21c and the opinion of the medical examiner is misplaced. DYFS invoked N.J.S.A. 9:8.21c(4)(b) in its complaint; this sub-section does not contain the "other than accidental means" language. G.S., supra, 157 N.J. at 173. In addition, the judge misconstrued the import of the medical examiner's opinion.

The testimony of a forensic pathologist or medical examiner is "restricted to describing the mechanics of death." State v. Jamerson, 153 N.J. 318, 338 (1998). The description of the mechanics may provide information from which the trier-of-fact may find that the forces causing death were self-inflicted, inflicted by others or the result of mere inadvertence. Id. at 337. In the case of death of a child due to lack of supervision in a context that is known to pose dangers to a young child, an opinion that death was "accidental" is hardly conclusive of the ultimate factual issue. We also conclude that the judge should have deferred the question of A.H.'s removal from the department child abuse registry to the established administrative process.

The Legislature has granted DYFS broad authority to investigate and monitor allegations of child neglect and abuse. N.J.S.A. 9:6-8.8 to -8.20; -8.21 to -8.82. In addition to authorizing DYFS to file a civil action to obtain care, custody and supervision of abused or neglected children, the Legislature has also authorized and directed DYFS to investigate and resolve allegations of abuse and neglect. DYFS has promulgated regulations governing this process. N.J.A.C. 10:129.

When an allegation of abuse or neglect has been substantiated, the alleged perpetrator may challenge the finding in accordance with N.J.A.C. 10:120A. N.J.A.C. 10:129-5.4(c)3. The regulations describe the dispute resolution procedures available to alleged perpetrators to challenge DYFS's substantiation of abuse or neglect. N.J.A.C. 10:120A-1.2(a)2. N.J.A.C. 10:120A-2.5(a) provides that a person who has received notice of a finding of substantiated child abuse or neglect may request a dispositional review or administrative hearing within twenty days of notice of a DYFS action or within twenty days of learning of a DYFS action. An administrative hearing is a hearing before the Office of Administrative Law (OAL), while a dispositional review is a more informal procedure wherein the parties meet or conference by telephone after a Review Officer has reviewed the relevant records and documents. N.J.A.C. 10:120A-1.3(a).

A person waives the right to dispositional review on failing to request review within twenty days, unless the delay was out of the challenger's control. N.J.A.C. 10:120A-2.5(g). If a person eligible for administrative hearing fails to request a hearing within twenty days of notification in accordance with N.J.A.C. 10:120A-3.2(m), the agency decision becomes final upon the expiration of the twenty day period. N.J.A.C. 10:120A-2.7(c).

At a dispositional review, the Review Officer makes a decision based on the information available to him from the record, the review, or from other members of the agency. N.J.A.C. 10:120A-3.2(k). The challenger then has twenty days from notification to appeal the result of the dispositional review. If the challenger fails to appeal within the twenty days or the matter is not appropriate for dispositional review because no material facts are in dispute, the decision reached at the dispositional review will become the final agency decision. N.J.A.C. 10:120A-3.2(n). Where further dispute resolution is inappropriate because no material facts are disputed, DYFS will consider resolution of the case by way of a motion for summary disposition in accordance with N.J.A.C. 10:120A-4.2. N.J.A.C. 10:120A-3.2(o).

When a person requests an administrative hearing, the matter will be transmitted to the OAL if the Administrative Hearings Unit determines there are material facts in dispute. N.J.A.C. 10:120A-4.1(d) and -4.3. Following a hearing, an administrative law judge will render an initial decision, the parties may file exceptions with the Division Director, and the Division Director will render a final decision. N.J.S.A. 52:14B-10. If there are no facts in dispute, the matter will be referred to the Division Director for summary disposition. N.J.A.C. 10:120A-4.2. The Division Director may affirm, modify or reverse the substantiation of child abuse or neglect and this disposition is a final agency decision. N.J.A.C. 10:120-4.2(d).

Here, we determine that the only remedy available to A.H. to remove her name from the Central Registry is through this established administrative process. The fact-finding hearing commenced in Superior Court in January 2008 was never completed. Although it is undisputed that A.H. left the children unattended in the bathtub, a question of fact remains concerning the length of time she left them unsupervised. This is a critical fact that bears on the ultimate question whether A.H. neglected her children. DYFS may not assert a time bar in light of its position on appeal as to the jurisdiction of the trial judge to order the contested relief and due to the extreme delay surrounding the preparation and service of the notice of substantiation.

Reversed.

A.H. asserts, and DYFS does not contest, that she did not receive the notice prior to the fact-finding hearing, and there is evidence to suggest she did not receive it until after commencement of the hearing.

(continued)

(continued)

9

A-3502-07T4

RECORD IMPOUNDED

December 18, 2008