DEPARTMENT OF CHILDREN AND FAMILIES v. S.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Petitioner-Respondent,

v.

S.K.,

Respondent-Appellant.

_______________________________________________

August 1, 2014

 

Submitted July 23, 2014 - Decided

 

Before Judges Lihotz and Guadagno.

 

On appeal from the Division of Child Protection and Permanency, Department of Children and Families, Docket No. AHU-11-0416.

 

Spevack Law Offices, attorneys for appellant

(Robert H. Heck, on the brief).

 

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

PER CURIAM

S.K. (Susan)1 appeals from the final decision of the Director of the Division of Child Protection and Permanency (Division), affirming the Division's finding of substantiated child neglect by Susan for leaving her three-year-old son, J.C. (John) alone in an automobile. On appeal, Susan maintains that her conduct was an isolated incident and did not amount to gross negligence as required by N.J.S.A. 9:6-8.21(c)(4). We reject Susan's arguments and affirm.

The facts are not in dispute. On January 9, 2011, at approximately 6:30 p.m., Susan parked her car near the Marshalls store at 48-18 Northern Boulevard in Queens, New York. John was in the back seat, strapped in a car seat, and Susan left him there and locked the vehicle before she entered Marshalls.

When Susan parked the car, it was dark, with sunset having occurred at 4:46 p.m. The temperature ranged on that day from a high of thirty-four degrees to a low of twenty-nine, and the average wind speed was twenty-one miles per hour, with gusts to forty. John was clothed in a hooded parka, thick winter pants, and had a blanket over his legs.

 

Susan's car was parked illegally, and when a tow truck arrived to tow it, the driver noticed John in the back seat and called the police. The responding officer had Susan paged at Marshalls. When she emerged, Susan explained that John was sleeping when she parked the car and she did not want to wake him. Although Susan maintained that she was in the store for only a brief time, the police would later review surveillance video and determine that Susan left John alone for twenty-five minutes. Susan was arrested and charged with reckless endangerment.

The New York City Administration for Children's Services (ACS) was notified and a New York court entered a temporary order of protection. The police contacted John's father who came to New York to pick him up.

As Susan resided in New Jersey, the ACS notified the Division of the incident and the Division assigned a caseworker to investigate. After meeting with the family, the caseworker had no immediate concerns as to John's safety but, in a letter dated February 25, 2011, the Division notified Susan that allegations of neglect were substantiated against her for leaving John unattended in the car.

On March 18, 2011, Susan wrote to the Division indicating that she wished to appeal the substantiation and requested a hearing. On January 10, 2013, the Division filed a motion for summary disposition seeking to have the Director summarily affirm the Division's substantiation without a hearing. The Division maintained that the material facts were undisputed and there was no need for a hearing.

On April 24, 2013, the Director filed a written decision granting the Division's motion for summary disposition and upholding the determination to substantiate neglect against Susan. The Director also denied Susan's request for an administrative hearing.

This appeal followed. Susan argues that her conduct was an isolated incident and, when viewed against her otherwise excellent record of child care, did not constitute gross negligence. We find this argument unavailing.

We begin by noting that the facts presented by the Division were undisputed and the Director's determination that Susan failed to exercise a minimum degree of care and that her actions were grossly negligent is a conclusion of law to which we are not required to defer. See N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011).

The Division was required to prove by a preponderance of the evidence that John was an "abused or neglected child" within the meaning of N.J.S.A. 9:6-8.21(c). The statute defines an abused or neglected child as a child whose parent or 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 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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

 

[N.J.S.A. 9:6-8.21(c).]

 

"The 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." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). Therefore, the phrase "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid.

Although the distinction from ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), 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 178-79. "[W]hether the actor actually recognizes the highly dangerous character of her conduct is irrelevant[,]" and "[k]nowledge will be imputed to the actor." Id. at 178. 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.

Applying these principles, we conclude that the Director correctly applied the controlling legal principles in reaching her final decision and her factual findings are well supported by the evidence. Susan's actions in leaving John alone in the car in the uncontrolled setting of a shopping area were deliberate. She went to Marshalls in search of a pair of boots for John, surely not an emergency. After leaving the child in the car, she crossed a major thoroughfare and entered Marshalls with John completely out of her sight for the entire twenty-five minutes she remained in the store. Finally, the incident occurred after dark and in frigid conditions, further heightening the danger to John.

Susan was not without alternatives. She had the option of taking John with her into the store, but chose to leave him behind. Moreover, Susan parked illegally and, but for the fortuitous observation of the tow truck driver, her car with the child in the back seat would have been towed. Had the driver not spotted the child and towed the car to an impound lot, there would be little doubt that Susan's conduct was grossly negligent. The serendipity of the tow truck driver's diligence does not serve to mitigate Susan's conduct. "A parent invites substantial peril when leaving a child of such tender years alone in a motor vehicle that is out of the parent's sight, no matter how briefly." Dep't of Children & Families v. E.D.-O., 434 N.J. Super. 154, 161 (App. Div. 2014).

We conclude that "an ordinary reasonable person" would understand the perilous situation in which the child was placed, and for that reason, Susan's conduct amounted to gross negligence and supports the Division's contention that the child was abused or neglected within the meaning of N.J.S.A. 9:6-8.21(c).

Susan's "excellent" prior record of child care and her unrefuted claim that this was an isolated incident does not alter this conclusion. The focus of an inquiry under N.J.S.A. 9:6-8.21(c) is on harm to the child and not on the caregiver's intent. G.S., supra, 157 N.J. at 180-81. For a finding of abuse or neglect there is no requirement to prove multiple instances of abuse or a pattern of neglect; a single incident of grossly negligent conduct, as has been established here, is sufficient.

As John was not injured, the statute requires a showing of "imminent danger" or a "substantial risk" of harm before Susan can be found to have abused or neglected him. Dep't of Children & Families v. A.L., 213 N.J. 1, 8 (2013) (citing N.J.S.A. 9:6-8.21(c)). Weighing all of the factors, including John's age, the time of day, the frigid conditions, the length of time the child was left alone, and Susan's decision to park illegally, we conclude that they amply support the Director's conclusion even if this incident was aberrational.

Affirmed.

 

1 We employ fictitious names to protect the children and for ease of reference.