Opinion
DOCKET NO. A-0841-13T2
07-21-2014
NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, INSTITUTIONAL ABUSE INVESTIGATION UNIT, Petitioner-Respondent, v. M.H., Respondent-Appellant.
Timothy R. Smith argued the cause for appellant (Caruso Smith Picini, P.C., attorneys; Mr. Smith, of counsel; Steven J. Kaflowitz, on the brief). Julie B. Christensen, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Christensen, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Fasciale.
On appeal from the Department of Children and Families, Institutional Abuse Investigation Unit, Docket No. AHU 12-0468.
Timothy R. Smith argued the cause for appellant (Caruso Smith Picini, P.C., attorneys; Mr. Smith, of counsel; Steven J. Kaflowitz, on the brief).
Julie B. Christensen, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Christensen, on the brief). PER CURIAM
M.H., a bus driver for the Elizabeth Board of Education ("EBOE"), appeals from an August 22, 2013 final agency decision by the Assistant Commissioner (the "Commissioner") of the Office of Performance Management and Accountability in the Department of Children and Families (the "Department"). The Commissioner adopted an initial decision by an Administrative Law Judge ("ALJ") concluding that M.H. neglected four-year-old A.C. by leaving him unattended on a bus for one hour thereby failing to exercise a minimum degree of care as required by N.J.S.A. 9:6-8.21c(4)(b). We affirm.
On January 19, 2012, at approximately 10:00 a.m., an EBOE bus driver reported to the director of the EBOE transportation department (the "Transportation Director") that he had seen a child alone on a bus in the EBOE bus yard. The Transportation Director immediately went to the yard and found the reporting bus driver and another driver removing A.C. from the bus. A.C., a pre-school student, was dressed in a winter coat, but was not wearing a hat or gloves. A.C. was cold and crying, and the temperature was approximately thirty-six degrees. The bus's doors and windows were closed but the bus was unlocked. EBOE personnel transported A.C. to school and he was seen by the school nurse, who cleared him for hypothermia and any other injuries. The Transportation Director quickly reported the matter to the Institutional Abuse Investigation Unit ("IAIU"), a subdivision of the Department.
The IAIU conducted an investigation and discovered that M.H. was the driver of A.C.'s bus and that on the day in question M.H. had been accompanied by an aide, T.E. The IAIU interviewed A.C., the EBOE personnel who discovered him on the bus, M.H., T.E., and students at A.C.'s school. M.H. admitted that she knew of New Jersey laws and EBOE policy requiring her to conduct a walkthrough to check for children at the end of her route, and that she failed to conduct the walkthrough on January 19, 2012.
The record also indicates that although it is EBOE policy for a teacher's aide, bus aide, and driver to count the students getting off the bus, all three failed to notice when only fifteen of the sixteen children did so that morning.
The IAIU substantiated M.H. for neglect. M.H. appealed from the IAIU's finding, and the Department transmitted the matter to the Office of Administrative Law ("OAL"). The ALJ conducted a two-day hearing, at the conclusion of which she upheld the substantiation in a twelve-page written decision. She stated, in relevant part:
I conclude that the [Department] proved, by a preponderance of the credible evidence, that M.H.'s actions rose to the level of gross negligence. M.H. had a statutory duty to perform a visual inspection of the bus. M.H. acknowledged and the surveillance tapes indicate that she failed to perform a visual inspection at the end of the route. M.H. had extensive work experience as a bus driver. . . . She received annual trainingThe Commissioner rendered a final decision adopting the ALJ's initial findings that placed M.H.'s name on the child abuse registry.
by the EBOE regarding her responsibilities and her employer had written guidelines regarding her bus duties which expressly provided that as part of her post-trip inspection, "before leaving the bus, she was to make certain to walk to the back of the bus to check for vandalism, lost and found items, debris and sleeping or hiding students." [] M.H. failed to comply with the written guidelines . . . . M.H. was on notice of the dangers inherent to a child being left on the bus, and of the seriousness of a charge if the driver failed to perform a visual inspection to ensure that all children had exited the vehicle prior to it being parked in the yard. In fact, the EBOE "Bus Driver Guidelines" note that . . . a child is in great danger if the child wakes up and wanders through the bus yard. . . . Leaving an unattended child on the school bus is grounds for dismissal. In this case, the students on M.H.'s last route were three to five years of age. Based upon their ages, they would have limited mental and physical abilities, which would affect their ability to exit the bus on their own and travel to a safe location.
. . . .
Despite the lack of any other measures to confirm a head count of students who exited the bus, to eliminate the potentially dangerous consequence of a four-year-old child being left on the bus, all M.H. had to do was walk to the back of her bus and perform a visual inspection, as she was required to do by statute. Instead, she shut off her bus, picked up her handbag and exited, leaving a four-year-old student in danger of serious injury.
On appeal, M.H. argues the following points:
POINT I
M.H. DID NOT COMMIT AN ACT OF CHILD ABUSE/NEGLECT CONTRARY TO N.J.S.A. 9:6-8.21(c).
POINT II
AS A MATTER OF LAW, FAILURE TO DO A VISUAL INSPECTION OF A SCHOOL BUS AT THE END OF A RUN DOES NOT, BY ITSELF, CONSTITUTE CHILD ABUSE/NEGLECT CONTRARY TO N.J.S.A. 9:6-8.21.
This court reviews the final determinations of an administrative agency with deference, not interfering unless the decision is "arbitrary, capricious or unreasonable, or . . . lacked fair support in the evidence." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). However, "'if an agency's statutory interpretation is contrary to the statutory language, or if the agency's interpretation undermines the Legislature's intent, no deference is required.'" Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008) (quoting In re N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997)).
We are satisfied that M.H.'s arguments are without sufficient merit to warrant complete discussion in a written opinion. R. 2:11-3(e)(1)(E). And, after reviewing the record and the briefs, we conclude that the ALJ's decision as adopted by the Commissioner was not arbitrary or capricious, and it is supported by sufficient, credible evidence in the record. R. 2:11-3(e)(1)(D). We add the following brief comments.
Pursuant to N.J.S.A. 9:6-8.21c(4)(b), an "abused or neglected child" means an individual under the age of eighteen years
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 proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.Our Supreme Court has defined "minimum degree of care" to proscribe "grossly or wantonly negligent" conduct that need not be intentional for the actor to be held liable. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). "[A] guardian fails to exercise a minimum degree of care when [the guardian] is aware of the dangers inherent in a situation," but "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. "A finding of abuse must be based on a preponderance of the 'competent, material and relevant evidence.'" Dep't of Children & Families v. G.R., 435 N.J. Super. 392, 400 (App. Div. 2014) (quoting N.J.S.A. 9:6-8.46b). The Supreme Court has stated that the potential culpability for leaving a child unattended aligns with
the Legislature's expressed purpose to safeguard children. Indeed, where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk.
[Dep't of Children & Families v. T.B., 207 N.J. 294, 307 (2011).]
In Dep't of Children & Families v. R.R., ___ N.J. Super. ___ (App. Div. 2014), we affirmed a neglect determination for a bus driver who left a child on a bus after failing to conduct a post-route walkthrough. In that case, the bus driver was dropping students off after school and relied upon a bus aide, who was known to be inattentive, when she told the driver that one of the children had not taken the bus that day. Id. at ___ (slip op. at 2-3). The driver did not see the child's parents outside their home after honking the horn, kept driving, and returned to the bus yard with the child still on the bus. Id. at ___ (slip op. at 3). The weather was uncomfortably warm and the child was left for approximately one hour until the parents alerted the school the child had not arrived home. Id. at ___, ___ (slip op. at 3, 5). The child was then discovered unharmed, sleeping, and still buckled in his seat. Id. at ___ (slip op. at 3).
M.H. was an experienced driver who readily admitted that she was aware of our state laws penalizing bus drivers for leaving children on buses, N.J.S.A. 18A:39-28 to -30, and EBOE policy requiring her to check the bus at the end of the route. She admitted that she failed to conduct the post-route walkthrough or take any equivalent steps to assure that no children were on the bus when she parked and left the EBOE yard. The tapes from the bus's camera confirm her admissions. A.C. was left for at least one hour, and the record indicates that it was only because he was later observed by other drivers that he was retrieved and brought to the school so quickly.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION