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

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5652-10T2

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES,

v.

M.D.,

_____________________________

Argued May 30, 2012 – Decided July 12, 2012

Before Judges Messano and Kennedy.

On appeal from the Department of Children and Families, Docket No. AHU 07-1397.

Joseph S. Murphy argued the cause for appellant (Law Offices of Joseph S. Murphy, attorneys; Mr. Murphy, on the brief).

Ella Skora argued the cause for the respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Skora, Deputy Attorney General, on the brief).

PER CURIAM

M.D. appeals from the June 3, 2011, final decision of the Director of the Division of Youth and Family Services, Department of Children and Families, finding that she had neglected her five year old daughter, Amy, and eight year old son, Bill,¹ pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), when on July 13, 2007, she "allowed" her 12 year-old son, Chris, to be alone with them "on multiple occasions when she was aware of a history of sexual behaviors between them[.]" We reverse.

I.

We derive the following facts from the record developed before the Administrative Law Judge (ALJ). M.D. and her husband have seven children. The oldest is Chris, who was born in 1994. On November 14, 2006, M.D. was out of the house and the children were being cared for by her mother and father. M.D.'s husband was away on a business trip at the time. When M.D. returned home that day, Amy, then four years old, told her that Chris had touched her and Daniel, then seven years old, in a sexually inappropriate manner. M.D. called a local psychologist for advice who referred her to the Center for Protection of Children at a local hospital. M.D. was told to contact the county Prosecutor's Office and did so.

That evening, local police came to the house and representatives from the Division of Youth and Family Services (DYFS or Division) arrived to interview family members. No charges were brought against Chris at that time, and M.D. and her parents executed a "case plan" two days later in which they agreed not to allow any unsupervised contact between Chris and his siblings.

M.D. and her family were "very cooperative" with DYFS and sent Chris for therapy and instituted a number of "rules" to insure the safety of the children. For example, Chris was not permitted to use the bathroom near the girls' bedrooms, but had to use the bathroom in the master bedroom; he was not permitted in anyone's bedroom, nor was he permitted to have the other children in his bedroom, without an adult present; and he could not shut the door to his own bedroom unless he were changing.

M.D. spoke with Chris's therapists and DYFS case workers from time to time and observed that Chris was depressed and feeling isolated from the family. Chris's principal therapist told M.D. that because it was impossible to supervise Chris at all times, given the size of the household, it was important to instill in Chris an obligation to "follow the rules" which had been developed over the course of family therapy sessions. He also advised M.D. that she had to "build . . . trust and to increase his responsibilities a little bit at a time[.]"

Accordingly, in May 2007, M.D. on a few occasions would leave Chris and the older siblings, including Bill, then eight years of age, Robert, twelve years of age, and Meg, nine years of age, in the house while she would run a brief errand. She did not leave Amy and the younger children in the house, however. During these few occasions, nothing improper occurred, according to M.D.

On July 13, 2007, M.D. took all the children, except Meg, who was in day camp, to the local pool and returned home with them in the afternoon. As M.D. explained it:

We came home from the pool. Everyone was in their bathing suits. I asked them to change out of their bathing suits into their clothes. I had the baby, R., in my arms, and it was nap time, so I went to get the bottles from the kitchen, and I was abiding by the rules of the safety plan, as were the children as far as I could tell, and I went to get the bottles from the kitchen, and the power went out.

I walked upstairs to the girls' bedroom, and when I opened the door, [Chris] was in there, and [Amy, then age five] and [Joan, then age three] were rolling around on the floor naked.

Chris at the time had his bathing suit down and told M.D. that the water in his bathroom was not working and that he had walked by the girls' room to see if the water was working in the other bathroom.

M.D. said that as she was downstairs preparing bottles for the youngest children, the power in the house went out. She estimated that the children were upstairs for "less than five minutes" when she discovered Chris in the room with Amy and Joan.

M.D. called her husband at work and they decided to contact DYFS. DYFS responded and interviewed M.D. and the children. The caseworker was told about the incident that occurred that day and the occasions when Chris had been left with the older children while M.D. ran errands. Chris was remanded to a juvenile detention center and the DYFS case worker thereafter substantiated a finding of neglect and inadequate supervision against M.D. and her husband.

DYFS also responded by filing a verified complaint against M.D. and her husband in the Family Division seeking "care and supervision" of the children pursuant to Title Nine and Title Thirty. The complaint was later dismissed, however, when M.D.'s husband stipulated to "inadequate supervision."

M.D. appealed from the substantiation of abuse and neglect and sought to have her name excluded from the Central Registry, which is a list of persons against whom charges of child abuse and neglect have been substantiated. N.J.S.A. 9:6-8.11; N.J.A.C. 10:129-5.4. The matter was then transferred to the Office of Administrative Law where a hearing was held on September 13, 2010. In an opinion issued on March 9, 2011, the ALJ concluded that DYFS proved by a preponderance of the evidence that M.D. displayed a "reckless disregard toward the safety of her children during the incident of July 13, 2007" and also "when she failed to abide by the case plan implemented following the first incident [.]"

The Director adopted the findings and conclusions of the ALJ and this appeal followed.

II.

On appeal, M.D. argues that the Director erred in her application of the law to the facts and thus the determination of substantiated child neglect is unsupportable. We agree.

We must "uphold an agency's decision 'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Dep't of Children and Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011) (quoting In re Herrmann,192 N.J. 19, 27-28 (2007)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Our function is not to merely rubberstamp an agency's decision; rather, our function is "to engage in 'a careful and principled consideration of the agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We must determine whether the agency's finding could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge their credibility.'" In reTaylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

However, we are not bound by an agency's interpretation of a statute or its determination of a strictly legal issue. Mayflower Sec. Co., supra, 64 N.J. at 93. Moreover, where the facts are undisputed, the agency's determination that a parent was grossly negligent is a conclusion of law to which we are not required to defer. T.B., supra, 207 N.J. at 308.

An "abused or neglected" child is defined 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 the 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).]

An inquiry under N.J.S.A. 9:6-8.21(c) 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. v. Dep't of Human Servs., 157 N.J. 161, 180-81, 723 A.2d 612 (1999).

In G.S., the Court explained that "[t]he phrase 'minimum degree of care'" denotes "something more than ordinary negligence" and "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995)). Further, willful or wanton conduct is conduct "done with the knowledge that injury is likely to, or probably will, result." Id. at 178 (citingMcLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).

In analyzing whether behavior is grossly negligent or reckless, the Supreme Court in G.S. stressed that the court's inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger. 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 181-82.

However, the "cautionary act" that leads to a determination of failure to provide a minimal degree of care must be informed by the grossly negligent or recklessness standard that G.S. established. T.B., supra, 207 N.J. at 306-07. "In other words, every failure to perform a cautionary act is not abuse or neglect. When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute." Ibid.

The necessary inquiry into whether an act or omission is grossly negligent or reckless can be difficult to make at times and is quite fact sensitive. G.S., supra, at 178. In N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159 (App. Div. 2009), we found that a mother who allowed her young sons to walk home alone from the playground to their condominium, which she could see from the playground, was inattentive or perhaps negligent, but her conduct did not meet the standard of gross negligence or recklessness. Id. at 168-69. Most recently, inT.B., our Supreme Court determined that a mother who left her four-year-old child unsupervised in her home under the mistaken belief that his grandmother was there, although plainly negligent for not verifying that belief, was not grossly negligent or reckless in her actions. T.B., supra, at 309-10.

Based upon the above legal principles, we are satisfied that the record does not support the Director's conclusion that M.D.'s conduct amounted to neglect under N.J.S.A. 9:6-8.21(c)(4)(b). Although M.D. did not immediately follow her five children upstairs while they were changing their swimming attire, she did proceed upstairs in less than five minutes after preparing bottles in the kitchen for the youngest children. The event which caused Chris to leave his own bathroom, a power outage, was wholly unanticipated. M.D.'s actions in the circumstances can hardly be characterized as neglect, and certainly not gross neglect or reckless conduct.

With respect to the claim that on a few occasions starting in May 2007, M.D. left Chris and the older children alone in the home for brief periods while running errands, while perhaps ill-advised under the circumstances, we cannot conclude it was "grossly negligent or reckless."T.B., supra, 207 N.J. at 309. Chris, by that time, had been engaged in therapy for several months and appeared to respect the rules that had been established in the house. M.D.'s efforts to give Chris some incremental responsibility within the family was prompted, in some measure, by her conversations with Chris's therapist.

Reversed.

1 We employ pseudonyms for all the children to protect their identities.