DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v. T.M

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1815-08T11815-08T1

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES,

Petitioner-Respondent,

v.

T.M.,

Respondent-Appellant.

________________________________________________________________

 

Submitted September 29, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. AHU #06-275.

T.M., appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Keri Ann Eglentowicz, Deputy Attorney General, on the brief).

PER CURIAM

T.M. appeals from the September 29, 2008 final decision of the Director of the Department of Children and Families, Division of Youth and Family Services (Division) affirming the Division's finding of substantiated child neglect by T.M. A native of Israel, T.M. argues that her background and relevant cultural differences should have been taken into account in evaluating whether her actions constituted neglect. She further argues that, even by American standards, her actions did not rise to the level of gross or wanton negligence necessary for a finding of neglect. Because the underlying incident occurred in New York and the authorities in that state did not substantiate neglect, T.M. also argues that the Director erred in failing to give proper consideration and weight to the determinations made by the New York authorities. Finally, she argues that her inclusion in the Division's Central Registry for perpetrators of child abuse or neglect is unwarranted and will have a disproportionate adverse impact on her. We reject these arguments and affirm.

On February 13, 2005, T.M. traveled to Nyack, New York with her two-and-one-half-year old daughter, A.M. They were enroute to a birthday party, and T.M. decided to stop at a shopping mall to purchase a present for the occasion. A.M. was in her child seat in the rear seat of the car. Shortly before arriving at the mall, A.M. fell asleep. T.M. determined that it would be preferable to allow her daughter to have her nap, which usually lasted about one hour, rather than waking her and taking her into the mall.

T.M. had never previously been to this mall. She turned off the engine of her car, locked the doors and left the windows completely closed. A.M. was capable of speech and could walk. T.M. believes she may have unbuckled the child seat upon leaving the car to provide greater comfort for A.M.

The parking lot was busy. The temperature was about forty degrees. T.M. intended shop in the Target store in the mall. She parked the car about ten spaces from the Target entrance, which was about 200 yards away, and entered that store directly. There are no windows on that side of the store, and, upon entering the store, T.M.'s car was completely out of her view.

T.M. hurried in her shopping activities because she wanted to return as quickly as possible to her car and unattended child. A passerby observed A.M. alone in the locked car and reported it to Target security personnel. A Target security person went into the parking lot and, coordinating with mall security personnel, located T.M.'s car. According to the mall security patrol's report, the call time was 1:33 p.m. The local police were called at 1:39 p.m. and arrived at 1:43 p.m. A store cash register receipt revealed that T.M. completed her purchase at 1:51 p.m. Therefore, A.M. was left unattended for at least twenty minutes, which T.M. later acknowledged.

T.M. gave several explanations for her conduct. As previously stated, she believed it would be preferable to allow her daughter to have her nap. She thought her shopping activity would take only five or ten minutes, and she was hurrying. Because of the short time she expected to be away, she did not believe there would be any issue of suffocation in a completely closed car. The outside temperature was not extremely cold, and she left a blanket on A.M. Most significantly, T.M. explained that in the small town in which she grew up in Israel, there was little or no concern for child abduction or similar child safety issues, that people often left their doors unlocked, and it was not uncommon to leave children unattended. This background gave her a different sense of danger than would be appropriate in the United States.

When T.M. returned to her car, she was arrested for endangering the welfare of a child, and the New York Office of Children and Family Services was notified. The criminal charges were subsequently dismissed and the New York Office of Children and Family Services, after conducting an administrative review, determined that the allegations regarding T.M. were unfounded. Nevertheless, that agency referred the matter to the Division for its consideration in light of the fact that T.M. and A.M. live in New Jersey.

The Division commenced its investigation on February 15, 2005. On May 22, 2005, the Division made a determination substantiating neglect based on inadequate supervision. The case worker determined that A.M. was left unattended for at least twenty minutes, and more likely for about forty minutes. Even giving T.M. the benefit of the doubt, and assuming the twenty minute duration, neglect was substantiated.

T.M. requested a Regional Dispositional Review. That review was conducted and, on October 2, 2006, the Division affirmed the finding of substantiated neglect. T.M. sought further administrative review and requested a hearing before the Office of Administrative Law (OAL). The hearing was delayed for a significant time for reasons not relevant here, and was finally conducted on May 6, 2008. On July 7, 2008, the Administrative Law Judge (ALJ) issued an initial decision recommending reversal of the Division's finding of substantiated neglect and the removal of T.M.'s name from the Central Registry.

The ALJ concluded that T.M. was not "conscious that her action would expose her daughter to a risk of harm" as a result of her cultural background. The ALJ stated that "there is a real question of whether she had the knowledge to perceive that leaving her daughter locked in the car, properly dressed, could lead to her possible abduction or other injury." The ALJ noted the "devastating effect" the Central Registry listing would have on T.M. and her family. The ALJ was also of the view that the determinations of the New York authorities, although not binding in New Jersey, should be considered.

The Division sought further review with the Director. In her September 29, 2008 final decision, the Director concluded that the ALJ improperly applied a subjective standard, taking into consideration T.M.'s cultural background in evaluating whether neglect was substantiated. The Director noted that whether T.M. had "actual knowledge of the risk taken" was not the relevant consideration because the gross negligence determination must be determined by an objective standard. The Director further commented that even if subjective considerations could be taken into account, because T.M. had been in the United States since 1999, was well educated, had training in child education in the United States, and taught in a school in the United States, it would follow that an "ordinary reasonable person with that experience would still understand the risk of leaving a two year-old child unattended in such an uncontrolled and unfamiliar place." In that regard, the Director noted that T.M. took precautions such as locking the doors, closing the windows, and rushing through the store, which indicated that she was "clearly aware of the inherent dangers of leaving a child unattended in a car at a shopping mall."

The Director further found improper the ALJ's consideration of the impact on the child's parents with regard to the Central Registry, because the focus should be "on the protection of children, and not the impact on parents." The issue is whether or not the parent committed an act of neglect under the appropriate legal standard. If so, the consequences would follow as required by law.

The Director therefore rejected the ALJ's initial decision and affirmed the initial finding by the Division which substantiated neglect by T.M.

Our review of a final determination of an administrative agency is very limited. We will not interfere unless there is a clear showing that the decision is "arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Our review is restricted to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard . . . to the agency's expertise where such expertise is a pertinent factor." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The burden of showing that an agency's decision was arbitrary, capricious, or unreasonable lies with the appellant. See Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

If an agency's decision meets those criteria, we give substantial deference to the agency's superior expertise and knowledge in its particular field. See In re License Issued to Zahl, 186 N.J. 341, 353 (2006). Such deference controls even if we would have decided the case differently. See In re Taylor, 158 N.J. 644, 657 (1999). However, an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower, supra, 64 N.J. at 93.

An agency is entitled to reject the result reached by an administrative law judge provided the agency's decision is founded in the record. N.J. Bell Tel. Co. v. State, 162 N.J. Super. 60, 69 (App. Div. 1978). Where such results are in conflict, "it is the expertise of [the agency] to which due regard must be given." 613 Corp. v. State, 210 N.J. Super. 485, 509 (App. Div. 1986) (citing In re Kallen, 92 N.J. 14, 20 (1983)). Indeed, the review of such a decision is made with deference to the agency where the matter is "one particularly within the agency's expertise and statutorily-sanctioned discretion." Id. at 496 (citing N.J. Bell Tel. Co., supra, 162 N.J. Super. at 77).

An "abused or neglected child" is defined in pertinent part 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 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)(b).]

The concept of a "minimum degree of care" used in this definition attempts to strike a balance between "a parent's constitutional right to raise his or her child without undue state interference" and "the State's parens patriae power to protect children from acts that negatively impact on their health and safety." G.S. v. Dep't of Human Servs., 157 N.J. 161, 179-80 (1999). 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., supra, 157 N.J. at 180-181.

In G.S., the Court explained that "[t]he phrase 'minimum degree of care' denotes a lesser burden on the actor than a duty of ordinary care" and hence "something more than ordinary negligence is required to hold the actor liable." Id. at 178. Therefore, the phrase "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. Such phrasing "implies more than simple negligence," but can apply to situations ranging from "'slight inadvertence to malicious purpose to inflict injury.'" Ibid. (quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). The standard is an "intermediary position between simple negligence and the intentional infliction of harm." Foldi v. Jeffries, 93 N.J. 533, 549 (1983). Although the distinction from ordinary negligence cannot be precisely defined, McLaughlin, supra, 56 N.J. at 305, the essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)).

Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result." Id. at 178 (citing McLaughlin, supra, 56 N.J. at 305). However, if the act or omission is done intentionally, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. Such knowledge is imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences." Id. at 179. Therefore, "a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury." Ibid.; see also McLaughlin, supra, 56 N.J. at 305-06 ("[I]t is enough that [the defendant] know[s], or has to reason to know, of circumstances which would bring home to the realization of the ordinary reasonable man the highly dangerous character of his conduct.").

Determinations must be made on a case-by-case basis, and "[w]hether 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 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 182. However, the mere lack of actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986)). As an example of neglect under N.J.S.A. 9:6-8.21, the Court in G.S. set forth a scenario in which "a parent [leaves] a two-year old child alone in a house and [goes] shopping . . . regardless of whether the parent intended to impair the child's well-being or harm the child." G.S., supra, 157 N.J. at 181.

Cases distinguishing ordinary negligence from gross negligence are illustrative. In Foldi, supra, 93 N.J. at 535-36, the Court found only ordinary negligence in a situation where a two-and-one-half-year old child was bitten by a dog after wandering out of the yard where her mother was gardening. The Court noted that the mother's inattention to the child was slight, and the incident occurred in the family's own yard, where the mother would not perceive a high probability of injury to her child. Id. at 550-51. This was therefore "a typical instance of a negligent lack of supervision, where a parent briefly loses sight of his or her child." Id. at 551. The Court noted, however, that the result might be different if the mother and daughter had been near a railroad track, rather than in their own backyard. Ibid.

A panel of this court recently considered another fact pattern and concluded that a mother, "although arguably inattentive or even negligent, did not meet the requisite standard of willful or wanton misconduct." N.J. Div. of Youth & Fam. Servs. v. J.L., ___ N.J. Super. ___, ___ (App. Div. 2009) (slip op. at 13). The incident occurred in the condominium complex where the mother and her sons, who were nearly four and nearly six years old, lived. Id. at ___ (slip op. at 2-3). The mother had been with the boys in a recreational area where they were playing; one of the boys, with the mother's permission, engaged in a water fight and wanted to return to their home to change his clothes; the other boy wanted to use the bathroom. Id. at ___ (slip op. at 2-3). The mother allowed them to walk back to the home, never leaving her view and never having to cross any streets. Id. at ___. (slip op. at 3). After the boys entered the house, the door closed behind them and, because it was equipped with a child-proof device, they were unable to open it. Ibid. After some passage of time, the boys realized they could not get out of the house, the older one called 9-1-1, and police responded, finding the boys unharmed. Ibid. The panel found only ordinary negligence, noting that the appropriate standard is not whether "some" potential for harm exists, but whether the risk of harm is "inherent in a situation." Id. at __ (slip op. at 14).

The Director did not take issue with the factual findings made by the ALJ with respect to what happened in the mall parking lot on February 13, 2005. Although the Director noted that there was significant evidence in the record suggesting that the time-frame during which A.M. was left unattended was "quite likely thirty minutes or more," the Director concluded that under the circumstances presented, "even the twenty minute time-frame found by the ALJ suffices to support the substantiation of neglect, so I do not reach the issue of this factual dispute as part of my final decision." As to T.M.'s expression of her subjective belief that she was not exposing her child to the risk of harm, the Director disagreed with the ALJ's finding. The Director was of the view that, based upon T.M.'s education, length of time in this country, and her actions on the day of the incident, she was well aware that she had placed her child at risk. However, the Director found this irrelevant, except to comment that, even if a subjective standard were to be used, T.M. engaged in gross neglect. Accordingly, we are not confronted with a situation in which the administrative officer making the final decision, in rejecting an ALJ's initial decision, disagreed with relevant factual findings by the ALJ.

We are satisfied from our review of the record that the Director's factual findings are well supported by the evidence. We are also satisfied that the Director correctly applied the controlling legal principles in reaching her final decision, and that in doing so the decision was not arbitrary, capricious or unreasonable.

The possibility that T.M.'s background precluded her from being aware of the risks posed by her actions is irrelevant. Under G.S. and Foldi, the gross negligence standard for a "minimum degree of care" under N.J.S.A. 9:6-8.21 is an objective standard, which does not take into account subjective considerations such as background or actual knowledge. Knowledge of the risk of harm is imputed to the actor if his or her acts were intentional and if an ordinary reasonable person would have been aware of the resulting risk. The Director explained it this way:

This incident was such that any number of substantial injuries could have occurred: the child could have been abducted; she could have gotten out of the car and into the parking lot or street; she could have been subjected to some emergency that a two year-old is not equipped to handle, such as a car accident or medical problem; and so forth. The time frame was extensive for such a young child, 20 minutes, or more, is far too long for a two year-old child to be without supervision in an uncontrolled and unfamiliar setting.

The Director thus concluded:

In this incident, T.M. failed to take the cautionary actions of supervision that are expected under the gross negligence standard, even though T.M. was fully capable and not restricted from doing so. She neglected her child by failing to provide "the child with proper supervision or guardianship, by unreasonably" creating a "substantial risk" of harm in leaving her two year-old child unsupervised in . . . her car parked in an unfamiliar parking lot for at least 20 minutes. N.J.S.A. 9:6-8.21(c)(4).

This was not an incident that occurred in the family home or backyard, where a child slipped out of the view of his or her parent for a short time under circumstances in which nothing worse than ordinary inadvertence could be attributed to the parent. T.M. deliberately left her child unattended in an unfamiliar and uncontrolled setting, a large mall parking lot, with many people coming and going, completely out of her view for at least twenty minutes. There was no emergency that required her to do what she did, and there were precautionary measures readily available to her, most notably taking A.M. into the mall with her.

Determinations in these cases are highly fact-sensitive. There is no basis for us to interfere with the Director's determination that, in these circumstances, T.M. was grossly negligent in placing her child at risk of harm.

Further, we have no basis to criticize the Director for failing to give weight to the decisions made by New York authorities. The nature and extent of any investigations conducted in New York and the reasons for the decisions made were not explored in this record. In any event, the Director's thorough explanation for her decision, based upon the evidence presented, cannot be transformed into arbitrary action because those decisions were made in New York. Finally, we find no merit to T.M.'s argument that any adverse effects resulting from the placement of her name in the Central Registry should provide a basis for reversal of the Director's final decision.

 
Affirmed.

We decline to consider the unpublished opinion of a panel of this court in N.J. Division of Youth & Family Services v. D.D., No. A-0010-05T3 (App. Div. June 13, 2006), certif. denied, 188 N.J. 490 (2006). The opinion is of no precedential value, the facts are materially distinguishable from those in this case, and the opinion does not persuade us that we should decide this case differently.

(continued)

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17

A-1815-08T1

RECORD IMPOUNDED

October 16, 2009