Opinion
DOCKET NO. A-2084-13T3
03-30-2015
DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT, Respondent, v. D.C., Appellant.
Harold N. Springstead argued the cause for appellant (Springstead & Maurice, attorneys; Mr. Springstead and Lauren E. McGovern, on the brief). Jonathan M. Villa, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Villa, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from the Department of Children and Families, Institutional Abuse Investigation Unit, Docket No. AHU-09-0327. Harold N. Springstead argued the cause for appellant (Springstead & Maurice, attorneys; Mr. Springstead and Lauren E. McGovern, on the brief). Jonathan M. Villa, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Villa, on the brief). PER CURIAM
Appellant D.C., a special education teacher, appeals from the November 20, 2013 final decision of the Acting Commissioner of the Department of Children and Families (DCF) finding that she had neglected A.C., a student in her class, within the definition of N.J.S.A. 9:6-8.21(c)(4)(b). We reverse.
We derive the following facts from the record developed before the Administrative Law Judge (ALJ). D.C. has been employed as a teacher for over twenty-one years and holds a master's degree in special education. For the eleven years prior to the incident involved in this case, D.C. worked with autistic and other special needs children in a public school.
On December 4, 2008, D.C.'s school arranged for a field trip for a group of students to a family entertainment center. The school had used this facility for field trips several times in the past. On December 4, a total of twelve teachers and aides, including D.C. and the two aides who were regularly assigned to her class, accompanied fifteen non-verbal autistic children in a bus to the facility.
Once at the center, the group used a "self-contained" play area on the second floor of the facility. There was a "gym and a ball pit on one side and then a mat open area with . . . little slides and big balls in that area." A dividing wall separated the play area from the hallway. There were two gates or "half-doors" that permitted access to the closed-in area. One of these gates appeared to be latched. The other gate had "a wedge in it so its not able to be opened by the children or most adults . . . ." On December 4, the school made arrangements with the facility to close the play area to the general public.
A stairway with fifteen steps was the only way to access the second floor play area.
The school's "field trip checklist" stated that a "plan for coverage for all students" should be established "in advance of [a] field trip." Four of the children in D.C.'s regular class participated in the trip. D.C. assigned her two aides to be responsible for one child each. D.C. took responsibility for the remaining two children, A.C. and R. D.C. testified that, of all the children in her class, A.C., who was four years old, was "the easiest student," while R. was "more challenging[.]"
D.C. further described A.C. as "a nonverbal lower functioning child and really kind of a passive child, . . . not a very . . . hyperactive child . . . at all." Prior to the incident on December 4, D.C. and her principal believed that D.C. was unable to open doors by herself and could not navigate her way down steps. Indeed, both agreed that A.C. "was not a student that would have normally eloped[.]" On the other hand, D.C. and the principal testified that R. "require[d] more supervision than" A.C.
D.C. was the only teacher on the field trip who complied with the field trip protocol by assigning herself and her two aides responsibility for specific students. The teachers and aides from other classrooms "assign[ed] themselves to locations" within the play area, rather than to specific students. Thus, at least one teacher or aide was responsible for monitoring each of the two gates that led out of the enclosed play area, and the remaining staff members were stationed in other locations in the play area. In this fashion, all of the teachers and aides were responsible for all of the children. Indeed, the principal testified that "because of the nature of the area that they were in[,]" D.C. "reasonably relied upon the other staff to watch" A.C. and the other children.
As an additional safety precaution, D.C. and her two aides did a head count of the four students in her class every ten minutes. D.C. positioned herself in the ball pit area where R. was playing. At the same time, she endeavored to keep A.C. within her line of sight. When D.C. and one of her aides did their last head count, D.C. testified that she saw A.C. playing on slide in the open mat area near several school staff members.
Approximately ten minutes later, one of the facility's workers brought A.C. over to D.C. and told her that the child had been found outside. An individual, who was driving by, saw A.C. walking near a pond about one hundred feet from the facility. The individual got out of her car and called to A.C., but the child began walking into the water. A.C. eventually turned around and walked to the individual, who took the child into the building. The individual testified that A.C. had been "[p]robably about waist deep" in the water before leaving the pond, and "was hysterical, she was crying and screaming."
By the time the child was returned to the facility, however, the facility's manager testified that A.C. "seemed fine, she wasn't crying, she was wet on her shoes -- like on the lower -- maybe a little bit below the knee, but she was not in -- to me, in any type of physical duress." When D.C. learned that A.C. had left the facility, she reacted with "[c]omplete disbelief" because "there was no way out" of the play area. D.C. took A.C. to the bathroom and changed her clothing. The child was not crying or upset. D.C. and A.C. then returned to the play area, where they had pizza for lunch with the other children.
Prior to leaving the facility at the end of the field trip, D.C. took A.C. to look at the gate to the play area. At that time, D.C. saw that the latch was not "secure" and that A.C. could push the gate open. D.C. also had A.C. attempt to go down the stairs to the main floor and the child was able to "go down the steps on her own without anybody helping her[.]" D.C. had A.C. try to exit the front door of the facility, but the child was unable to open the door by herself.
The facility's manager testified that she did not see A.C. attempt to exit the front door. However, she stated that, just prior to the "Good Samaritan" returning A.C. to the facility, a delivery person "had the door open" because "he was bringing the boxes in and out of the building[.]"
Before leaving the facility, D.C. called her supervisor and "explained what had happened." The school principal notified A.C.'s mother about the incident. The mother told the principal that A.C. now knew how to open doors and could go down steps. The mother had not previously divulged this information to the school. D.C. testified that A.C. "had been [her] student for quite a while and she had never displayed ever trying to open up a door or trying to leave and trying to ever remove herself from the classroom or from any of us."
The principal reprimanded D.C. for "[n]ot maintaining visual and proximal supervision of" A.C. However, she also described D.C. as "very caring, she's a consummate professional and she has good relationships with the parents and the students and the staff." D.C. continued to teach A.C. in her class after the incident and testified that she maintained "a very good relationship" with A.C.'s mother.
The principal also reported the incident to DCF's Institutional Abuse Investigation Unit, which sent an investigator to interview D.C. and other staff members. The worker also spoke with A.C.'s mother. On February 11, 2009, DCF sent D.C. a letter advising that the agency had "substantiated" her for neglect under N.J.S.A. 9:6-8.21 and that she "ha[d] been identified as seriously harming the child or placing the child at risk of serious harm by other than accidental means."
D.C. appealed DCF's determination to the Office of Administrative Law, where the ALJ held a one-day hearing at which D.C., her principal, the investigator, the Good Samaritan, and the facility's manager testified as set forth above. The ALJ found that, although A.C. was out of D.C.'s sight for approximately ten minutes, "D.C.'s actions do not translate into willful, wanton or reckless disregard" for the child's safety. The ALJ explained:
D.C. had no notice that A.C. had learned to open doors and had exhibited a tendency to wander prior to the incident at issue. Her past behavior indicated to the contrary. D.C. knew that the second-floor play area was fully enclosed, with only two means to enter and exit. D.C. had no knowledge that the closing mechanism on one door had become weak enough that it could open when pushed by a child. She further
knew that all of the children, throughout the entire second floor, including the door area, were supervised by a ratio of fifteen adults to eighteen children. In addition, for safety reasons, the Program was also the only renter in the facility on the day. D.C. also had no reason to anticipate that further safety precautions would ever be needed to prevent an eloping child from exiting the facility, if the child were able to open the second-floor exit door and walk down the steps. The first-floor door was too heavy to be opened by a child. In addition, any eloping child would likely be seen and prevented from exiting by facility staff whose offices were on the first floor.
In this case, D.C. was not indifferent to her responsibility to supervise A.C. nor was she indifferent to any known harm. D.C. had no way of knowing that, on this particular day, the staff would be busy with a . . . delivery and made no objection when the driver propped open the door to bring in a number of boxes. D.C. had no way of knowing that one of the latched doors would be weakened to the point that a child could push it open. She had never seen A.C. wander, open doors, or navigate a flight of steps by herself, and the child's mother did not advise D.C. that A.C. had shown the mother an interest and ability to open doors, navigate steps, and wander.
A.C.'s ability to elope from the facility cannot be viewed from the perspective of hindsight nor should the focus be on the physical dangers outside the facility when so many precautions in place should have prevented A.C. from being able to exit the facility. Though not controlling, it should be noted that during the ten minutes that she was not in visual proximity of D.C., A.C. was not harmed.
Thus, the ALJ determined that DCF "failed to prove by a preponderance of the evidence that D.C.'s conduct . . . rose to the level of child neglect pursuant to N.J.S.A. 9:6-8.21."
The Acting Commissioner rejected the ALJ's detailed findings and concluded that D.C. neglected A.C. because, otherwise, the child would not have been able to leave the play area undetected, go down the stairs, get past the front door, and enter the pond. The Acting Commissioner found that, by not keeping the child in her line of sight, "D.C. failed to provide the minimum degree of care in her supervision of A.C. thereby placing the child at significant risk of harm." Although there were "supervising staff members" stationed at each gate and throughout the play area, the Acting Commissioner stated that "D.C. assumed that the conditions in which she was situated would allow for her to take her eyes off A.C. for ten minutes." Therefore, the Acting Commissioner concluded that "D.C.'s level of inattention was willful and wanton because she was aware that she was required to maintain visual and proximal supervision of the child." This appeal followed.
On appeal, D.C. argues that the Acting Commissioner 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, 301-02 (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 re Taylor, 158 N.J. 644, 656 (1999) (citation and internal quotation marks omitted).
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 caregiver was grossly negligent is a conclusion to which we are not required to defer. T.B., supra, 207 N.J. at 308.
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.").
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. G.S., supra, 157 N.J. 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 (citing McLaughlin 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 trial 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.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.
[Id. at 182.]
Grossly negligent conduct requires "an indifference to consequences." Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (quoting State v. Gooze, 14 N.J. Super. 277, 282 (App. Div. 1951)). Recklessness occurs when the actor "intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and which thus is usually accompanied by a conscious indifference to the consequences." Schick v. Ferolito, 167 N.J. 7, 19 (2001). "Reckless behavior must be more than any mere mistake resulting from inexperience, excitement or confusion and more than mere thoughtlessness or inadvertence or simple inattention . . . ." Ibid. (citation and internal quotation marks omitted).
The necessary inquiry into whether an act or omission is grossly negligent or reckless can be difficult to make at times and is extremely fact sensitive. G.S., supra, 157 N.J. at 178. In N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (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. In T.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, 207 N.J. at 309-10.
Applying these legal principles to the facts developed at the hearing, we are satisfied that the record does not support the Acting Commissioner's conclusion that D.C.'s conduct amounted to neglect under N.J.S.A. 9:6-8.21(c)(4)(b). Although D.C., as A.C.'s teacher, was ultimately responsible for A.C. and the three other students in her class, she was aided by eleven other staff persons in monitoring the children's conduct at the family entertainment center. D.C. was the only teacher who scrupulously followed the field trip protocol by assigning herself and her two aides to supervise specific students. She took head counts of her students every ten minutes. In addition, other teachers and aides were stationed at various locations throughout the play area, including the gate, to watch the children.
D.C. never left the play area for any reason. At the time of the last head count, D.C. was in the ball pit area attending to R. and saw that A.C. was playing on a slide in the mat area in the company of nearby staff members. The school principal testified that D.C. "reasonably relied upon the other staff to also watch" A.C. and the other children. Under these circumstances, D.C.'s belief that A.C. was being supervised does not equate to the indifference to a highly probable danger and the conscious disregard for the consequences necessary to prove gross negligence or recklessness.
The record also amply demonstrates that there was nothing in D.C.'s or the school's past work with A.C. that would have placed D.C. on notice that the child would be able to leave the gated play area, traverse a fifteen-step staircase, and exit through the facility's front door. A.C. was a passive, well-behaved child, who had never before attempted to elope from her teacher or classroom. A.C.'s mother had never notified the school that A.C. had started opening doors or walking on stairs. D.C. also could have not foreseen that the facility would allow a delivery person to prop open the front door of the building. Again, nothing that D.C. did in caring for A.C. evidenced such an extreme disregard of a high and excessive risk as to amount to recklessness or gross negligence within the intendment of N.J.S.A. 9:6-8.21(c)(4)(b).
Accordingly, the agency's decision is reversed and the matter is remanded for removal of D.C.'s name from the Central Registry.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION