Opinion
DOCKET NO. A-6013-09T1
02-07-2012
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, Petitioner-Respondent, v. S.F., Respondent-Appellant.
Brian F. O'Malley, attorney for appellant. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Charisse M. Penalver, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Graves.
On appeal from the Division of Youth
and Family Services, Docket No. AHU 08-0198.
Brian F. O'Malley, attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney
for respondent (Melissa H. Raksa, Assistant
Attorney General, of counsel; Charisse M.
Penalver, Deputy Attorney General, on the brief).
PER CURIAM
S.F. appeals from the final decision of the Director of the Division of Youth and Family Services (DYFS or Division) that found sufficient grounds to substantiate allegations that she abused or neglected her six-year-old niece A.T, by leaving the child home alone for an extended period of time. We affirm. These are the salient facts.
I
At 12:59 p.m. on January 18, 2008, the Lakewood Police Department received a 911 call from six-year-old A.T. claiming that she was afraid because a "black cat" was loose in the house. The child also told the 911 operator that she was alone in the house. Police Officer Sheehy (first name not disclosed in the record) was dispatched to the residence while the 911 operator remained on the telephone with the child.
When Sheehy arrived, he observed through a second floor window that the "cat" was in fact a squirrel. Although the 911 operator tried to get A.T. to open the door to let Sheehy into the house, the child said she was too afraid of the "cat" to come out from her place of refuge. After confirming that all other "access points" to the house were "locked," Sheehy forced his way through the second-floor rear porch door. Sheehy found A.T. by following the sound of her voice as she spoke to the 911 operator. After determining that A.T. was "O.K.," Sheehy isolated the squirrel in a downstairs room, and called for an animal control officer. The animal control officer released the squirrel from the house without further incident.
A police dispatcher located A.T.'s mother, T.F., by phone, and her aunt S.F., who was at the time working as a teacher at Lakewood High School. T.F. told the police dispatcher that she had left her daughter in the care of her sister S.F. According to Sheehy, when S.F. returned to the house, she told him that she had left A.T. home alone that morning "while she went to work at the high school." S.F. also told Sheehy that "she had come home to check on [A.T.] midday and then returned to work."
Sheehy reported the incident to DYFS that same day. The Division assigned Intake Worker and Investigator Margaret McDonald to investigate the matter. When McDonald arrived at S.F.'s residence at approximately 4:00 p.m. that same day, A.T.'s maternal uncle told her that T.F. had picked up her daughter and returned to her home in Newark. McDonald then called T.F. at the telephone number provided by the maternal uncle. T.F. agreed to return to the Lakewood residence with A.T. in order to meet with McDonald. When McDonald arrived at the residence later that evening, S.F. told her that T.F. had changed her mind and now wanted McDonald to meet her in Newark.
McDonald then decided to interview S.F. about the circumstances leading to A.T. being left alone earlier that day. McDonald testified that S.F. told her that she and her mother (A.T.'s grandmother) care for A.T. during the week. The child returns to her mother's residence in Newark on the weekends. A.T. uses S.F.'s residence in Lakewood in order to attend the local school. A.T. did not attend school on the day in question because she was sick. According to McDonald, S.F. decided to leave the child home alone because the high school where she worked as a teacher was around the corner from her house. S.F. believed she could return home and check up on the child during her free time.
Consistent with this plan, S.F. told McDonald that she checked up on A.T. twice that morning and the child appeared fine. She also prepared lunch for A.T. during one of these visits. She was on her way to check up on A.T. for the third time when she received the telephone call from the police. After this incident, she decided to take A.T. with her to the high school. S.F. did not see anything wrong with leaving a six-year-old, presumably sick, child home alone under these circumstances.
As a result of this incident and the follow up investigation by DYFS, T.F. decided not to allow her daughter to reside with her aunt in Lakewood. A.T. now resides full time with her mother and attends a local school in Newark.
Division Investigator Erica Reed interviewed A.T. and her mother in their home in Newark. The child corroborated S.F.'s account of events, including that her aunt had come home twice that day to check on her prior to the "cat" incident. A.T. also told Reed that this was the first time her aunt had left her home alone. Based on the child's account of events, Reed concluded that A.T. had been left alone for approximately three hours. Reed's interview with A.T. was otherwise unremarkable except for one issue. According to Reed, even after she told A.T. that it was a squirrel, the child remained adamant that the animal that had entered the house was a "cat." This gave Reed concern that A.T. was not mature enough to distinguish between a cat and a squirrel.
Based on these core facts, DYFS advised S.F. that the Division had formally substantiated that she committed an act of child abuse or neglect as defined in N.J.S.A. 9:6-8.21(c)(4)(b), in connection with the incident that occurred on January 18, 2008, involving her niece A.T. Acting on S.F.'s appeal, the Division transmitted the matter to the Office of Administrative Law pursuant to the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13.
At a hearing held before an Administrative Law Judge (ALJ), the Division relied on the testimony of Investigators McDonald and Reed. McDonald noted that she did not see any safety concerns in the physical environment of S.F.'s home. Both McDonald and Reed also testified concerning the standards used by the Division to determine whether a child is mature enough to be left home alone. Other than an infant of tender years, both Investigators agreed that age alone is not a determinative factor in assessing a child's maturity level. Instead, they focus on a child's ability to communicate his or her needs, whether the child knows to use the telephone to call for help and other indications of good judgment.
Because Reed was the only investigator to interview A.T., Reed's testimony included her own assessment of the child's maturity. She expressed concern that A.T. could not distinguish between a cat and a squirrel. Reed also thought it was particularly problematic that A.T. was left alone while she was sick and her caretaker was not immediately available to respond to any unforeseen emergency.
S.F. called her mother C.F. as her witness. At the time of this incident, C.F. had resided at the Lakewood house for thirty-two years. She lives with her husband, her daughter S.F., her son, and granddaughter A.T. C.F. was employed at the time as a nurse. Because her work day ordinarily began at eleven o'clock in the morning, C.F. testified it was her responsibility to care for A.T., including getting her ready for school. Although she thought A.T. was capable of staying alone at home when A.T. returned from school in the afternoon, C.F. arranged for A.T. to stay with a neighbor. C.F. testified that she made these arrangements because she did not think "the law allows you to do things like leave [six-year-old children] without a plan."
On the night before this incident, C.F. was called to work a twenty-four hour shift at the hospital. She called her daughter S.F. at around 6:00 a.m. on the day of the incident and asked her to get A.T. ready for school. C.F. did not know A.T. was sick or that S.F. planned to leave her alone at home.
S.F. testified in her own defense. In 2008, she was employed as a substitute teacher and worked as a soccer and track coach at Lakewood High School. She has a bachelor's degree in psychology and had worked in recreation and summer camps. When she received her mother's call on the day of the incident, she planned to take A.T. to school. She did not notice that her niece was sick with a stomach ache and could not go to school until approximately 6:45 a.m. S.F. testified that by that time, it was too late to call her school and report she could not come to work. She was also unable to contact a neighbor who may have been able to step in and care for A.T.
The ALJ gave the following summary of S.F.'s testimony with respect to what occurred next:
[S.F.] decided to make the child comfortable in bed, where she could watch television and
be close to the bathroom, and [S.F.] would go to work and return periodically to check on her. She provided her phone number so A.T. could call her. [S.F.] went to school at 7:30 a.m.; she worked the first period; she came home during second period and saw A.T. in bed watching television; she worked third period; and she came home after third period and gave A.T. lunch. Each class period was forty minutes long, and the school was a two-minute drive away. Each time she spoke with A.T., and A.T. was fine.
II
The ALJ undertook a comprehensive analysis of the legal principles governing the Division's determination to substantiate the charge of child abuse or neglect against S.F., as well as the implications and ramifications of such substantiation upon S.F. Citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999), the ALJ noted that DYFS is the agency entrusted by the Legislature with responsibility for the "care, custody, guardianship, maintenance and protection of children." As such, DYFS is charged with investigating allegations of child abuse or neglect, N.J.A.C. 10:129-5.3(a), and taking whatever action is necessary to protect a child if the allegations are substantiated. N.J.S.A. 9:6-8.11.
N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected child as a child under the age of eighteen "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 . . . in providing the child with proper supervision or guardianship . . . ." (Emphasis added). N.J.S.A. 9:6-8.21(a) defines "guardian" to include "any person[] who has assumed responsibility for the care, custody or control of a child . . . ."
A charge is deemed substantiated
when the available information, as evaluated by the child protective investigator, indicates by a preponderance of the evidence that a child is an abused or neglected child as defined in N.J.A.C. 10:133-1.3 because the alleged child victim has been harmed or placed at risk of harm by a parent or guardian.
[N.J.A.C. 10:129-1.3]
In G.S., the Court defined "minimum degree of care" as "conduct that is grossly or wantonly negligent, but not necessarily intentional." 157 N.J. at 178. Whether a parent or caregiver has exercised a minimum degree of care depends on the "dangers and risks associated with the situation." Id. at 181-82. This approach requires a fact-sensitive, case-by-case analysis. See ibid.
Given the evidence outlined here, and mindful of the standard articulated by the Court in G.S., the ALJ concluded in her Initial Decision that the Division had established, by a preponderance of the credible evidence, that S.F. neglected A.T., a child left in her care, "by leaving her home alone and unattended for a substantial period of time." This made A.T. an abused or neglected child within the meaning of N.J.S.A. 9:6-8.21(c) and N.J.A.C. 10:133-1.3.
In reaching this conclusion, the ALJ distinguished the facts here from those in New Jersey Division of Youth & Family Services v. J.L., 410 N.J. Super. 159, 161 (App. Div. 2 009), in which a mother allowed her two sons, ages six and four, to walk from a playground to their visible condominium while she remained at the playground. The children called 911 when the apartment door accidentally closed, locking them inside. Id. at 161-62. The mother began looking for the children a half an hour after they had left her sight, and found the police officers who had responded to the 911 call inside the apartment. Id. at 162. In reversing the Director's substantiation of neglect, we characterized the mother's conduct in J.L. as "arguably inattentive or even negligent," but short of satisfying the standard established in G.S. Id. at 168.
By contrast, the ALJ noted that here, A.T. was left alone for extended periods of time while she was presumably sick. Her 911 call experience was also dramatically different. She called the police out of fear that a "cat" was roaming the house. Her fear of the animal was so great, that she refused to open the door for the police officer who responded to her call for help. Thus, unlike the boys in J.L., A.T. was placed in an objectively more perilous situation, for a far greater period of time. In her independent evaluation, the Director adopted the findings and conclusions of the ALJ. As noted earlier, we affirm the Director's decision.
Our Supreme Court revisited the G.S. standards of review in Department of Children and Families, Division of Youth & Family Services v. T.B., 207 N.J. 294 (2011). The facts in T.B. concerned "a mother who left her four-year-old child unsupervised for two hours under the mistaken belief that his grandmother was home." Id. at 296. Although the living arrangements provided a measure of privacy and independence, the mother in T.B. shared a residence with the child's grandparents, and the boy freely accessed both areas of the house. Ibid.
Given the mother's work and study schedule, the grandparents assisted her in caring for the child. Id. at 296-97. On the day of the incident, the mother returned home in the early evening with the child asleep in the back of the car. Id. at 297. Seeing the grandmother's car in the driveway, the mother mistakenly believed she was at home. The mother put the child to sleep in his bed, and went out to dinner with a friend. Ibid. The boy awoke about two hours later and discovered he was alone. Ibid. The child then
left the house, crossed the street — "a 25 mile[-]an[-]hour residential street with constant traffic" — and told his neighbor that he could not find his mother. The neighbor contacted Officer Duda, a policeman who lived nearby. Duda knocked on [the mother's] door, and when no one responded, he called the Atlantic Highlands Police Department.
[Ibid. (first and second alterations in original).]
On these facts, the Court reversed our opinion that upheld the Director's substantiation of neglect against the mother. Id. at 296. After reviewing the case law that had evolved since G.S., the Court held that, although "plainly negligent," the mother in T.B. "was not grossly negligent or reckless . . . ." Id. at 309. The Court emphasized that this was "not a situation in which she left her four-year-old son at home alone knowing there was no adult supervision." Ibid.
The facts the Court found material in T.B. stand in sharp contrast to the salient facts here. As the ALJ and Director both found, A.T. was left without adult supervision for an extended period of time and in a presumed physically vulnerable condition. These facts indicate objectively reckless behavior by S.F. and substantiate a finding of neglect. In reaching this conclusion, we are mindful of the serious ramifications S.F. will endure based on being included in the Division's registry as a person who neglected a child. N.J.S.A. 9:6-8.11. See also In re Allegations of Sexual Abuse at E. Park High Sch., 314 N.J. Super. 149, 162-63 (App. Div. 1998). Given the evidence presented, however, we are compelled to affirm the Director's decision.
In reviewing a final decision of a State administrative agency, we "'must defer to an agency's expertise and superior knowledge of a particular field.'" T.B., supra, 207 N.J. at 301 (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We must affirm the 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." In re Herrmann, 192 N.J. 19, 27-28 (2007).
Mindful of this standard of review, we discern no basis to disturb the Director's decision, and affirm substantially for the reasons expressed by the Director in her Agency Final Decision issued on July 13, 2010.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION