Department of Children and Families Institutional Abuse Investigation Unit v. E.V.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2128-08T32128-08T3

Department of Children and Families,

Institutional Abuse Investigation

Unit,

Petitioner-Respondent,

vs.

E.V.,

Respondent-Appellant.

__________________________________

 

Argued: November 18, 2009 - Decided:

Before Judges Cuff, C.L. Miniman and Waugh.

On appeal from a Final Decision of the Department of Children and Families, Institutional Abuse Investigation Unit, AHU #07-421.

Richard S. Lehrich argued the cause for appellant.

Joanne Leone, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Leone, on the brief).

PER CURIAM

E.V., a caregiver at a licensed day care facility, appeals from a final decision of the Department of Children and Families, Institutional Abuse Investigation Unit substantiating neglect of an eighteen-month old child in her care. E.V. contends that her admittedly negligent conduct did not rise to the level of conduct required to substantiate this finding. We disagree and affirm.

The facts are not in dispute; the legal significance of those facts is sharply contested. We quote the facts found by the Administrative Law Judge (ALJ) and adopted by the agency in their entirety:

E.V., who had been working at the YMCA Daycare Center since 1999, was, on the day of the incident, November 17, 2006, working as a teacher. She usually worked a split shift, spending the morning at a Grand Street location filling in for other teachers during their breaks, then would do a mid-day bus run, and return to Grand Street at approximately 3:00 p.m. and work with infants until about 6:00p.m.

On the day of the incident, E.V. was assigned to the eighteen-month-old class (a group [older] than the infants she usually worked with) as a result of the last-minute absence of the teacher normally assigned to that group. E.V. requested not to be given the assignment of the eighteen-month-old class on that day because she was somewhat distressed by the failing health of two of her family members. Nonetheless, she was given the assignment by Ms. Taylor.

Assisting E.V. with the eighteen-month-old group was A.S., a fifteen-year-old teacher's aide who had only recently started working for the YMCA after school.

A.S., during the month that she worked for the YMCA prior to the incident, usually worked with Nicole, the absent teacher, whom she assisted with changing the diapers of the children along with feeding them a snack and bringing them outside to play.

On the day of the incident, A.S. indicated that she and E.V. dressed the children with their coats and hats and took them to the small playground adjacent to the gymnasium of the YMCA. A.S. indicated that she did not do a head count of the children when they took them outside because that was usually done by Nicole. A.S. did not know whether E.V. had done a head count.

According to records submitted by DCF/DYFS (P-9) there were seven children in the eighteen-month-old group. According to A.S. it was "quite a process to get them dressed and diapered and changed, etc." before taking them out to the playground. The children were in the playground for approximately forty-five minutes when they were brought back inside. A.S. did not do a head count and was unsure if E.V. had done one. It was not until approximately twenty to twenty-five minutes after the children were brought in from the playground that A.S. was told that "Sarah" had been left on the playground.

Matthew Sheehy arrived home from work somewhere around 4:30 p.m. and saw one of the neighborhood children who lived in the residential area go into the fenced in playground to guide Sarah, who was alone, from the playground back into the YMCA.

[Victoria T.], the childcare administrator at the YMCA indicated that around 5:30 p.m. on the date in question, a young man told her that a baby had been left in the playground. [Victoria T.] went directly to the gym and saw Sarah with other teachers.

[Victoria T.] immediately sought out E.V. and A.S. who were now in another classroom. She asked them where Sarah was and they told her that she was with her class.

[Victoria T.] went on to describe the playground as small and surrounded by a tall see-through fence. The fence latches are on top of the gates, out of reach of the children who would be in the playground. Adults can open the latches either from inside or outside the playground. As a result of this incident, E.V.'s employment with the YMCA was terminated. A.S. continued her employment with the YMCA after receiving a warning.

Investigator Peter Nzekwu confirmed the testimony of the above witnesses through interviews he conducted and determined that E.V. failed to adhere to the headcount policy of the YMCA which resulted in Sarah being left on the playground. Nzekwu indicated that E.V. told him that she did a head count of the children on the way out and did a head count when they came back in. The head count upon the return was either one or two fewer than the head count going out. E.V. testified that she checked the playground after the children came in and saw no children left behind. There was, however, testimony from the witnesses which indicated that there was a playhouse in the playground which could shield from view a youngster inside it. The more experienced teachers who accompanied the eighteen-month-old group out to the playground usually removed the side panels so they would have a clear view into the playhouse. This issue was not addressed by either A.S. or E.V.

E.V.'s testimony confirmed the disparity in the count but apparently was overlooked because E.V. actually checked the playground after the children came in. The difference in the head count going out and coming in was not a clear indication of a missing child because parents were allowed to pick-up their children from the playground. Theoretically, they should have been signed out, but it was not until after this incident that the policy was tightened. E.V. was remorseful and contrite and her testimony convinced the undersigned that she was truly sorry about the incident, accepted responsibility for it, and was still somewhat haunted by it. She impressed me as a teacher who would be quite dedicated to the children in her charge and would not intentionally or willingly expose them to harm.

Shortly after Sarah was back in the gymnasium her mother picked her up, examined her for injury and reported none. Nzekwu determined through his investigation that Sarah was alone in the playground for approximately twenty-five minutes.

I FIND as a matter of FACT that Sarah was left in the small fenced-in playground for approximately twenty-five minutes. She received no injuries as a result of being left behind. Her exposure to danger was limited in that she was left in a fenced-in playground in a residential area in plain view of several neighbors. The length of time she could have been unattended in the fenced-in playground was short, for her mother was picking her up and in fact arrived shortly after she was retrieved from the playground.

Based on these findings, the ALJ referenced G.S. v. Department of Human Services, 157 N.J. 161 (1999), and held that E.V's conduct could not be considered neglect because her conduct was not deliberate and she could not have foreseen that her conduct was likely to result in injury. The ALJ emphasized that "no physical harm came to the child." In addition, the ALJ commented that "[t]here was no proof submitted nor could there be any proof inferred that the leaving of Sarah in the playground for twenty-five minutes would be 'likely to cause death or serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ.'" The ALJ also reasoned that the risk to the child could not be considered substantial or ongoing, even though she was left on the playground unsupervised and unattended.

The matter was submitted to defendant agency for review and final decision. The Executive Director of Community Services, the person designated to review and render a final decision, adopted the findings of fact rendered by the ALJ but expressed her concern that the ALJ placed undue emphasis on the effect, i.e. placement on the Central Registry, of the ultimate finding that E.V. neglected the child in her care. She also disagreed with the ALJ's analysis of the legal implications of his findings. In assessing the implications drawn by the ALJ, the Executive Director stated:

This incident involves a situation in which E.V., the daycare provider responsible for an eighteen (18) month old YMCA Daycare class, left an eighteen (18) month old girl outside in the playground unattended for twenty-five (25) minutes, after conducting a head-count and faulty search of the playground. Many aspects of the factual scenario, as found by the ALJ, trouble me. E.V. testified that she completed a headcount, realized that the headcount was short, and that she was not concerned that Sarah was missing because the child might have been picked up by her parent. Nevertheless, despite the fact that the headcount demonstrated that a child was missing, despite the fact E.V. did not see Sarah's parent pick her up, and despite the fact that E.V. failed to see the child when she searched the playground, E.V. was not concerned enough about Sarah's whereabouts to check to see if her parent had indeed picked the child up or whether the child was indeed missing. It was only by the good grace of a neighborhood child, who entered the playground and retrieved Sarah, that the toddler was returned to supervision twenty-five (25) minutes later, and it was only after this neighborhood child returned Sarah that the YMCA Daycare administrator became aware that Sarah was missing. Upon completion of a short head count and the realization that a child was unaccounted for, E.V. should have begun a search for the child, possibly contacting the administrator for assistance. Her failure to take any action regarding a missing child suggests a shocking indifference on E.V.'s part as to the whereabouts and well-being of an eighteen (18) month [old] child in her charge.

Ultimately, the Executive Director concluded that "the facts in this matter support a conclusion that eighteen (18) month old Sarah was placed at substantial risk of imminent danger when left unsupervised for twenty-five minutes on the playground." She explained that an eighteen month old child lacks the capacity to care for herself in a host of emergency situations, and she was accessible in the gated playground to anyone who noticed her and was tall enough to manipulate the lock. The Executive Director observed that it was entirely fortuitous that the person who heard the child and entered the playground harbored only the thought to aid the child. Moreover, the record clearly demonstrated that E.V. had no knowledge of the child's whereabouts, and seized on an assumption, utterly unsupported by any facts, to explain her whereabouts. The Executive Director concluded that such conduct was patently unreasonable and satisfied the test enunciated in G.S. to support a finding of neglect.

The finding of neglect by E.V. is premised on N.J.S.A. 9:6-8.21(c)(2) and (4), which defines a neglected child as a young person under the age of eighteen years

whose . . . guardian . . . (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 . . . 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 . . . guardian . . . to exercise a minimum degree of care . . . (b) in providing the child proper supervision or guardianship, . . . or substantial risk thereof. . . .

In G.S., supra, the Court interpreted the phrase "minimum degree of care" as denoting

a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful and wanton.

[157 N.J. at 178.]

The Court also noted that reckless behavior may also allow a finding of neglect "because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law[; therefore], actions taken with reckless disregard for the consequences also may be wanton and willful." Ibid. In the end, each case must be evaluated on its facts. Ibid.

In G.S., the Court held that the caretaker, who administered seventy-eight times the prescribed dose of medication to an autistic, non-verbal, epileptic, developmentally disabled minor, neglected her ward. Id. at 182-83. By contrast, we recently reversed a finding of neglect by a mother who allowed her sons, six and four years of age, to leave a playground and enter their home within view of the playground and left them unattended in the home. N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 161 (App. Div. 2009). We emphasized that when the locking mechanism on the front door did not permit the boys to leave the house, the older child, who had a cell phone to use in case of emergencies, used it, as instructed, to call the police, and the children suffered no more than "transitory upset to the older child." Id. at 169. We noted that "[t]hese circumstances suggest that the child exercised good judgment and was well trained by his parents to deal with the crisis that he perceived to exist." Ibid. In addition, the after-the-fact risk assessment conducted by the agency found the risk of future neglect was low and no further services were required. Id. at 163.

The circumstances of this case are markedly different than J.L. Here, the child was eighteen months old. She was left unattended for at least twenty-five minutes in a playground accessible to people not associated with the pre-school community. Sarah was left unattended on a late afternoon in November as the light faded and temperatures lowered. Eighteen month old Sarah could not fend for herself. Crying was the only mechanism she could employ to draw attention to her plight. Moreover, until the neighborhood boy opened the gate, entered the playground, and carried her into the school, no one knew her whereabouts.

There is no suggestion that E.V. deliberately left Sarah in the playground. She did, however, disregard established procedures for ascertaining that all children in her care returned from the playground. More importantly, when she realized that Sarah was not in the classroom, she conducted a desultory visual inspection of the playground and all too readily assumed that the child must have been picked up by her mother. The visual inspection of the playground was patently inadequate in light of the helplessness of the child due to her age, and the assumption that she was safe in her mother's care was unsupported by any facts. That she was not physically harmed while unattended does not negate the high risk of harm to which she was exposed.

Our determination that E.V.'s actions constitute neglect as contemplated by N.J.S.A. 9:8-6 is not at variance with New Jersey Division of Youth & Family Services. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), Division of Youth & Family Services v. D.F., 377 N.J. Super. 59 (App. Div. 2005) or Foldi v. Jeffries, 93 N.J. 533 (1983). In S.S., supra, we reversed a finding of neglect against a mother who was involved in an abusive relationship. 372 N.J. Super. at 22-23. She had been viciously assaulted while holding her twenty-two month old child in her arms. The child was not physically harmed, and the record was barren of any evidence that the child had suffered any emotional harm due to the incident. Id. at 15, 19-20. We rejected the unfounded supposition that a child's status as a witness to violence, without more, allows a finding that his mother exposed him to an unacceptable risk of harm. Id. at 22.

Similarly, in D.F., supra, we found no basis to support a finding of neglect against the mother of a six-month old child whose only "fault" was having been the victim of acts of domestic violence inflicted on her by the child's father. 377 N.J. Super. at 61. D.F. was a victim of domestic violence. The child suffered no harm; indeed, there was no evidence that the infant was even present at the time of the assault. Id. at 70.

Here, the child was not a bystander. E.V.'s failure to assure that the child had returned to the classroom after the outside activity and to definitively determine her whereabouts created a situation that exposed an eighteen-month old child to substantial risk of physical harm.

In addition, Foldi does not require a different result. In Foldi, supra, the Court examined the retention of the long-standing rule of parental immunity in areas involving the exercise of parental authority or the provision of customary child care. 93 N.J. at 546-49. The case arose when a two-and-one-half-year old wandered away from her mother while both were gardening in the yard of the family home. Id. at 535. The child wandered from her mother's side into a neighbor's yard two houses away where she was bitten in the face by the neighbor's dog. Ibid. The Court determined that the doctrine of parental immunity bars an action alleging negligent supervision but does not bar an action founded on willful and wanton misconduct in the supervision of a child. Id. at 547. Applying the modified parental immunity rule to the facts of the case, the Court held that the mother negligently supervised her child, but her lack of supervision could not be considered willful and wanton. Id. at 547-48.

The facts in Foldi and in this case are only superficially similar. In Foldi, the child was a full year older than the child in this case. A year in the life of a child is significant. Moreover, the child was absent for as little as five minutes but no more than ten minutes, and the mother immediately ceased her activity and commenced her search for the child. Here, Sarah was on her own for at least twenty-five minutes in an empty playground accessible to strangers as the day grew darker and chillier. A stranger, fortunately a benevolent stranger, gained access to the playground. Moreover, when the child's caretaker realized the child was not present, she conducted a desultory visual inspection of the yard and readily accepted the unsupported assumption that the child was with her mother.

Finally, we reject appellant's contention that the Initial Decision issued by the ALJ should be considered "deemed adopted" pursuant to N.J.S.A. 52:14B-10(c) because the agency head did not modify or reject the Initial Decision within forty-five days. Here, the ALJ issued his Initial Decision on October 16, 2008. The Executive Director of Community Services signed the final decision on November 27, 2008, before the December 1, 2008 deadline. The decision should have been mailed no later than December 5, 2008; it was mailed on December 9, 2008.

The automatic approval mechanism of N.J.S.A. 52:14B-10(c) should be utilized cautiously. King v. N.J. Racing Comm'n, 103 N.J. 412, 422 (1986). Indeed, the "deemed adopted" provision is rarely utilized when the agency head determines that the ALJ decision must be modified or reversed. Newman v. Ramapo Coll. of N.J., 349 N.J. Super. 196, 202 (App. Div. 2002).

This case underscores the need for caution in resorting to the automatic approval remedy. First, the delay was minimal. Second, the Executive Director's decision invoked her expertise founded on a fundamental disagreement regarding the risk to which this toddler was exposed which, in turn, informed her application of the governing law. We should rarely allow a minor procedural flaw to set aside a merits disposition. Id. at 201-02.

 
Affirmed.

(continued)

(continued)

15

A-2128-08T3

RECORD IMPOUNDED

April 14, 2010