DEPARTMENT OF CHILDREN AND FAMILIES INSTITUTIONAL ABUSE INVESTIGATION UNIT v. L.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1754-12T2

DEPARTMENT OF CHILDREN

AND FAMILIES, INSTITUTIONAL

ABUSE INVESTIGATION UNIT,

Petitioner-Respondent,

v.

L.K.,

Respondent-Appellant.

_____________________________

April 22, 2014

Submitted: April 2, 2014 Decided:

Before Judges Fuentes, Simonelli and Haas.

On appeal from the Department of Children and Families, Institutional Abuse Investigation Unit, Docket No. AHU 09-0371.

James M. Curran, attorney for appellant.

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

Appellant L.K., a teacher at a daycare center, appeals from a final decision of the Department of Children and Families (DCF), entering her name in the child abuse registry pursuant to N.J.S.A. 9:6-8.11 based upon a finding that she neglected a child, who suffered severe burns while in her care. We affirm.

L.K. worked at a daycare center as the primary teacher for a class of approximately fourteen children, ages four and five.1 She was assisted by J.B., a certified teacher's assistant, who regularly worked with L.K. in the classroom.

The center's director, I.F., testified that there was a written policy in the employee handbook that prohibited "food and hot beverages in the rooms." The policy also stated that "[t]here should be no heating or cooking equipment in the classrooms." L.K. was a teacher at the center at the time this policy was adopted and she received and read a copy of it. However, L.K. testified that she had not reviewed the handbook again after she was hired in 1999.

Contrary to the policy, L.K. kept an electric hot water kettle in her classroom, which she used to make tea or "play dough." The kettle had an automatic shut-off feature but, because of the lid on the device, the kettle trapped the heat and the water would remain hot. L.K. believed that I.F. was aware that she used a kettle in the classroom and stated that other classrooms had similar kettles. However, I.F. testified that having a kettle in the classroom violated the policy and that she had never seen a kettle in L.K.'s classroom.

The kettle was kept on a shelf in a corner of the classroom, known as the "cubby area." Although L.K. testified that this area was not "a place where [the children] were allowed to go play[,]" the children accessed the area to put away their personal items and to store their backpacks.

On December 30, 2008, L.K. decided to make play dough for the children. In this activity, L.K. would mix the ingredients, (flour, salt, oil, and powdered Kool-Aid), with water that she heated using the kettle. Typically, the children were required to sit at "the yellow table" while the water was being heated in the kettle, and they were not permitted to leave their seats.

After it was filled with water, L.K. placed the kettle on the shelf in the cubby area, turned it on, and returned to the main classroom. Although J.B. knew that L.K. had decided to make play dough for the children, she was not aware that L.K. had turned on the kettle. After leaving the cubby area, L.K. testified that she "totally forgot that I had put [the kettle] on" and she began working on some paperwork for upcoming parent conferences. She then left the classroom to use a computer station in the hallway. While J.B. noticed that L.K. was walking out of the room, she did not know where L.K. was going, how long she would be gone, or, most importantly, that L.K. had turned on the kettle to heat the water.

Contrary to L.K.'s usual procedure, the children had not been directed to sit at the yellow table as she heated the water. They continued to engage in activities in the classroom.

Moments after L.K. left the classroom, another child "snatched" a toy from four-year-old Z.A., who became "upset" at the child's action. Z.A. and two of his friends went to the cubby area. Z.A. apparently bumped into a bin of stuffed animals, causing the hot water from the kettle to spill on him. Z.A. ran from the cubby area "screaming and crying[.]" L.K. returned to the room, picked up Z.A., and ran for help. I.F. heard the commotion and assisted L.K. in placing the child in the kitchen sink so he could be splashed with cold water. An assistant called emergency services, who determined that the child needed to be air-lifted to a hospital burn center. Z.A. suffered first- and second-degree burns to his chest, arms, neck, and face.

The next day, I.F. contacted DCF to report the incident. The agency's resulting investigation substantiated the allegation of neglect against L.K., who requested an administrative hearing with regard to DCF's finding. The matter was then transmitted to the Office of Administrative Law for a contested case hearing before an Administrative Law Judge (ALJ).

Following the hearing, at which I.F., J.B., L.K. and a DCF investigator testified, the ALJ issued an Initial Decision recommending dismissal of the allegation of neglect against L.K. The ALJ observed that L.K. had not followed the center's written policy prohibiting the use of kettles in the classroom and had left the classroom without telling J.B. At the same time, however, the ALJ found that it was "reasonable for [L.K.] to assume that the children were properly supervised by her assistant" while L.K. was in the hallway. He also noted that L.K. had never been involved in any prior incidents of this nature, and was well-respected by her peers and the parents of her students. The ALJ concluded that the incident was an "accident" and that L.K.'s conduct was not "willful or wanton."

Upon review, DCF's Assistant Commissioner "reject[ed] the ALJ's recommendation that the finding of neglect in this matter be overturned" and found that "L.K.'s actions fell below the requisite minimum degree of care, and her failure to adequately protect the children in her care from the foreseeable risks constituted gross and wanton negligence."

In a detailed written opinion, the Assistant Commissioner found that L.K. failed to follow the center's policy, which prohibited "hot beverages and kettles in the classroom." L.K. "recognized the dangers inherent in having heated water around children," but "grossly underestimated the risk" on the day of the incident. The Assistant Commissioner further found that L.K. turned on the kettle and then "got 'side tracked'" while attending to other work, before stepping into the hallway to work on the computer. L.K. did not tell J.B. she was leaving the classroom or that the kettle had been turned on. L.K. left the kettle unattended in the cubby area of the classroom, where the children kept their personal items.

Under these circumstances, the Assistant Commissioner concluded that L.K. "disregarded typical protocol and as a result, serious injury to one of her students occurred." The Assistant Commissioner explained:

L.K. was the person responsible for ensuring the safety of the children in her care. Her vast experience teaching children over the years makes her actions here appear all the more unreasonable. While she may be a well-respected teacher, our focus is not on the caretaker or her overall teaching abilities, but on the protection of children and the harm to the child that existed at the time. Although she may not have a history of incompetence or negligence, one incident is sufficient for a finding of neglect, and here, L.K. exhibited both.

L.K. knowingly violated school policy by heating water in a classroom full of four- and five-year-old children. She then recklessly left the classroom without taking the kettle with her or placing it in a more secure area. Finally, at a minimum, she failed to inform her assistant that she was leaving the classroom and that there was hot water in the cubby area that the children should not go near. L.K.'s multiple failures to perform cautionary acts were not just negligent, but grossly negligent. While L.K. did not intend to injure Z.A., she should have known that her conduct would cause injury or a serious risk thereof. If L.K. had exercised a minimum degree of care, Z.A. would not have been harmed.

This appeal followed.

On appeal, L.K. argues that the Assistant Commissioner's finding of neglect should be reversed because it is not supported by the record. We disagree.

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. (second alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "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" or the conduct of a guardian. G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999). Pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), an "abused or neglected child" means:

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 . . . 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 harm to the child need not be intentional in order to substantiate a finding of abuse and neglect. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 344 (2010); see also G.S. supra, 157 N.J. at 175 ("A parent or guardian can commit child abuse even though the resulting injury is not intended. . . . The intent of the parent or guardian is irrelevant.").

"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. Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179.

In determining a case of abuse or neglect, the court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).

Applying these standards, we are satisfied there was competent, credible evidence in the record to support the Assistant Commissioner's finding that L.K.'s actions placed Z.A. at substantial risk of harm and constituted "neglect" within the intendment of N.J.S.A. 9:6-8.21(c)(4)(b). The use of heating equipment was prohibited in the classroom. Nevertheless, L.K. knowingly left a kettle of hot water unattended in an area accessible to four- and five-year-old children. She did not even follow her own protocol of requiring the children to sit at a table while the kettle was in use. L.K. admitted that she failed to tell her assistant that the kettle had been turned on when she left the classroom. Because the Assistant Commissioner's findings are supported by adequate credible evidence and her conclusions are consistent with applicable law, we perceive no basis for disturbing the agency's final decision.

Affirmed.

1 L.K. had been a teacher for twenty-four years at the time of the hearing in this case. She had worked at this particular daycare center for the past thirteen years.