RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4594-12T4
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION
May 2, 2014 Petitioner-Respondent, APPELLATE DIVISION v.
G.R.,
Respondent-Appellant. ___________________________________
Argued April 9, 2014 – Decided May 2, 2014
Before Judges Fuentes, Fasciale and Haas.
On appeal from the Department of Children and Families, Division of Child Protection and Permanency, Docket No. AHU-08-0191.
Kevin T. Conway argued the cause for appellant.
Lori J. DeCarlo, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. DeCarlo, on the brief).
The opinion of the court was delivered by
FASCIALE, J.A.D.
G.R. appeals from an April 12, 2013 final agency decision
by the Director (the "Director") of the Division of Child Protection and Permanency (the "Division") summarily concluding
that G.R. neglected her two-year-old son by failing to exercise
a minimum degree of care as required by N.J.S.A. 9:6-
8.21c(4)(b). The Division took approximately five years to
resolve G.R.'s administrative appeal and place her name on the
child abuse registry (the "Registry"). Although G.R. timely
disputed the Division's initial substantiation of neglect, she
lived with the uncertainty of the outcome of her challenge
during the entire five years. This substantial delay was caused
by agency inaction and the inadvertent misplacement of G.R.'s
file by a Deputy Attorney General (DAG). We reverse without
prejudice, remand, and direct the Office of Administrative Law
(OAL) to conduct a hearing to resolve disputed material issues
of fact and to address G.R.'s contention that the case should be
dismissed as a matter of fundamental fairness.
I.
G.R. acknowledges that on the afternoon of December 6,
2007, she left her son unattended in her minivan in a mall
parking lot while shopping in a Target store (hereinafter
referred to as "the incident"). The parties dispute where G.R.
parked, what path she took to enter the store, and the length of
time she was away from her vehicle. G.R. contends that she
parked twenty feet from a side entrance to the store, left her
2 A-4594-12T4 son in the minivan appropriately dressed and sleeping, ensured
that he was properly secured in his car seat, turned off the
engine, locked the vehicle, and returned as soon as five minutes
later. Although the record is unclear about what G.R. planned
to buy from Target, a Division caseworker later noted that G.R.
"grabbed the few things that [G.R.] needed." As she returned to
the minivan, a police officer issued her a summons for
endangering the welfare of her child.1
Six days later, on December 12, 2007, the police referred
the matter to the Division. At midnight that night, a
caseworker arrived at G.R.'s home and verified with G.R. that
the incident occurred. The caseworker observed that the house
appeared to be clean and organized, and that the two-year-old
and G.R.'s two other children (then eight and ten years old)
were healthy, clean, and sleeping in their bedrooms. The
caseworker left G.R.'s home satisfied that there were "[n]o
signs of abuse or neglect."
On December 17, 2007, the caseworker returned to the home
and talked to G.R., her husband, and the two oldest children.
G.R. and her husband acknowledged the incident, signed a case
plan agreeing that G.R. would attend parenting skills classes
1 The record does not reveal the disposition of the criminal charges.
3 A-4594-12T4 with a licensed social worker, and agreed to refrain from
leaving their children unattended in a vehicle. Nevertheless,
on the basis of the incident, the caseworker stated in her
investigation summary that "[a]llegations of neglect are
substantiated."
On January 28, 2008, the Division notified G.R. in writing
that she neglected her son by leaving him unattended in the
minivan, stating in pertinent part that
the Division is required to send to local/State police certain identifying information regarding all substantiated incidents of child abuse and neglect in their jurisdiction.
In addition, N.J.S.A. 9:6-8.10a authorizes the Division to identify confirmed perpetrators of child abuse or neglect to agencies, persons, or entities who are mandated by statute to consider such information when conducting background screenings of employees, prospective employees, interns, or volunteers who provide, or seek to provide, services to children. For certain employment, a substantiation of child abuse or neglect will prevent you from getting or keeping a job.[2]
The Division informed G.R. that she had the right to appeal from
its initial determination and to request an OAL hearing. On
February 8, 2008, G.R.'s counsel wrote to the Division,
2 G.R.'s counsel reported to us at oral argument that G.R. has been employed as a school librarian.
4 A-4594-12T4 requested a hearing, and demanded discovery of the Division's
file materials.
In March 2008, the social worker who had conducted four
parenting classes with G.R. notified the Division that she did
not feel that G.R. was a risk to her children "in any way," and
stated that the incident was "clearly a cultural difference."3
The Division obtained reports from the children's pediatrician,
a school nurse, and G.R.'s local police department, all showing
that G.R. was a good and caring parent. As a result, the
Division concluded that the children were safe, and it did not
initiate a Title Nine action. On appeal, it is uncontested that
the incident amounted to a one-time event and that G.R. was
otherwise an attentive parent.
On April 2, 2008, the Division closed its file. The
caseworker completed a Case Closing Checklist indicating that
G.R. fully complied with the case plan by completing the
parenting sessions, specifically noting the social worker's
opinions that G.R. was "great with her children" and that the
incident was the result of a "cultural clash." The caseworker
also wrote in her case summary that "[m]om was very happy to
hear that the case was being closed."
3 G.R. had recently immigrated to the United States from Germany, and she contended that in her former country it was not unusual to leave one's child unattended in a vehicle for a short time.
5 A-4594-12T4 On May 1, 2008, an Appeals Administrator from the
Department of Children and Families (the "Department") wrote to
G.R. stating that the Department's Administrative Hearings Unit
(AHU) had received her request for a hearing. The Appeals
Administrator indicated in part that
due to the volume of requests for appeals, it will take at least several months before the OAL will be able to hear your matter. You will be provided with information about your case during the discovery phase of the OAL hearing process.
[(Emphasis added).]
One year and eight months later, on December 23, 2009, G.R.'s
counsel wrote to the DAG to follow up on G.R's administrative
appeal and reiterated G.R.'s request for a hearing.4 G.R.'s
counsel acknowledged that the DAG might be inclined to file a
motion for summary disposition, but stated that such a motion
would be "premature as no facts have yet been elicited at a
hearing." The DAG did not respond to G.R.'s December 2009
letter until two years and eight months later. Finally, on
August 27, 2012, the DAG provided the requested discovery and,
to her credit, indicated that she had misplaced the file. The
OAL failed to schedule a hearing in the interim and the AHU did
not provide G.R. with any information about her appeal.
4 G.R.'s counsel referenced various prior emails in his letter, but those emails are not a part of the record.
6 A-4594-12T4 In January 2013, more than five years after the incident,
the Division filed a motion for summary disposition pursuant to
N.J.A.C. 10:120A-4.2. G.R. filed opposition contending that the
motion was untimely and that there were disputed material facts
requiring a hearing. G.R.'s counsel insisted that G.R. be
afforded the opportunity to cross-examine the police officer,
police dispatcher, and Division caseworker. However, the
Director granted the Division's motion to proceed summarily and
affirmed the substantiation of neglect. In part, the Division
stated that
the competent evidence in the record established that [the child] was left alone in the vehicle for at least [twenty-five] minutes. . . . The DAG [herself] observed that, as Target is located on the fourth level of the mall, it would be virtually impossible for G.R. to enter the mall, go to the fourth level, shop and pay for her items, exit and return to [the minivan] within five to ten minutes [as contended by G.R.5]
The Director adopted the DAG's observation and found that "[i]t
is inconceivable that G.R. could enter the mall, . . . and at
all times observe the [minivan] without any obstruction." The
Director concluded that G.R. neglected the child pursuant to
5 On appeal to us, the Division now concedes that Target has a side entrance accessible from the parking lot at ground level.
7 A-4594-12T4 N.J.S.A. 9:6-8.21c(4)(b) and ordered that G.R.'s name be listed
on the Registry pursuant to N.J.S.A. 9:6-8.11.
On appeal, G.R. argues that (1) the matter should be
dismissed in the interests of justice because of the excessive
delay between the incident and the DAG's motion for summary
disposition; (2) the Director erred by granting the Division's
motion because there existed disputed material issues of fact
requiring a hearing; and (3) the incident does not constitute
neglect under N.J.S.A. 9:6-8.21c(4)(b). Because we are
remanding for further proceedings, we need not resolve G.R.'s
contention that there was insufficient evidence for the Division
to substantiate neglect.
II.
We conclude that the Director erred by granting the
Division's motion to proceed summarily and determining that
there existed no disputed material facts. Motions for summary
disposition of disputes before the Director are governed in
general by N.J.A.C. 10:120A-4.2, which provides in pertinent
part that
(b) The Director of Legal Affairs or designee, in consultation with a representative of the Attorney General's Office, shall determine whether to proceed with a Motion for Summary Disposition, based on whether or not there are material facts in dispute.
8 A-4594-12T4 1. When the Director of Legal Affairs or designee and the representative of the Attorney General's Office determine to proceed with a Motion for Summary Disposition because no material facts are in dispute, the case shall be transmitted to the Attorney General's Office for assignment for preparation of the Motion for Summary Disposition.
Here, there existed material disputed facts that required a
hearing, including but not limited to: the length of time that
G.R. was away from the minivan; whether G.R. used the parking
lot-level entrance to Target or walked through the mall to reach
the store; if she used the parking lot-level entrance, the
distance between where she parked and that door; whether G.R.
lost sight of the minivan while she was in the store, and if so,
for how long; and whether there existed extenuating
circumstances surrounding the incident. We make the following
remarks to guide the parties on remand.
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
9 A-4594-12T4 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 parent "fails to
exercise a minimum degree of care when [the parent] 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.
"Whether a parent or guardian has failed to exercise a
minimum degree of care is to be analyzed in light of the dangers
and risks associated with the situation." Id. at 181-82. A
finding of abuse must be based on a preponderance of the
"competent, material and relevant evidence." N.J.S.A. 9:6-
8.46b. In 2011, the Court confirmed the "grossly negligent or
reckless standard," but observed that "every failure to perform
a cautionary act is not abuse or neglect." Dept. of Children &
Families v. T.B., 207 N.J. 294, 306-07 (2011). Mere negligence
does not trigger the statute. Ibid.
In assessing whether a parent who leaves a child unattended
in a vehicle has exercised a minimum degree of care, we recently
reiterated that the focus of the potential culpability aligns
with
10 A-4594-12T4 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.
[Dept. of Children & Families v. E.D.-O., 434 N.J. Super. 154, 158 (App. Div. 2014) (citation omitted).]
In E.D.-O., the mother left her nineteen-month-old child secured
in a car seat in a locked and parked car with its engine running
150 feet from the store where she was shopping. Id. at 155-56.
Affirming the Division's substantiation of neglect, we stated
that, "[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." Id. at 161. Yet in
acknowledging that there may be circumstances that militate
against a finding that a parent was grossly negligent, we also
remarked that "we do not mean to suggest there are no
circumstances in which a child might be left unattended in a
motor vehicle without running afoul" of N.J.S.A. 9:6-
8.21c(4)(b). Id. at 162.
The Division's analysis of whether a parent has committed
an act of neglect should be conducted "on a case-by-case basis."
T.B., supra, 207 N.J. at 306 (quoting G.S., supra, 157 N.J. at
11 A-4594-12T4 182). The court or the Division should consider the totality of
the circumstances in determining whether the parent's acts were
sufficiently negligent to warrant placement on the Registry.
See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.
320, 329 (App. Div. 2011).
III.
G.R. contends that we should vacate the final agency
decision and dismiss the case in the interests of justice
because (1) the inaction by the DAG, AHU, and OAL deprived her
of administrative procedural due process; and (2) the Director's
summary affirmance contravened principles of fundamental
fairness. We disagree that G.R. was denied due process, but
direct the parties to address G.R.'s fundamental fairness
argument on remand.
A.
G.R. focuses on two interrelated facts to support her
contention that she was denied procedural due process: the DAG
delayed filing the motion for summary disposition, and there was
never a hearing before the OAL. G.R.'s failure to exercise
available judicial remedies, however, militates against her
claim that the she was deprived of procedural due process.
It is undisputed that the OAL failed to schedule a hearing,
and that the AHU did not provide G.R. with information about the
12 A-4594-12T4 status of the case or comply with N.J.A.C. 10:120A-4.2(a), which
provides:
When the [AHU] determines that an appellant is ineligible for an administrative hearing because of the absence of material disputed facts, the [AHU] recommends to the Director of Legal Affairs or designee that the matter is appropriate for a Motion for Summary Disposition.
We conclude, however, that G.R. could have applied to compel the
Division to schedule and conduct an OAL hearing consistent with
N.J.A.C. 10:120A-4.2(b)(2) (disallowing summary proceedings in
matters involving disputed material facts) and N.J.A.C. 10:120A-
4.3(a)(2) (requiring the AHU to transmit contested cases to the
OAL). See Hosp. Ctr. at Orange v. Guhl, 331 N.J. Super. 322,
340 (App. Div. 2000) (indicating that "[t]he availability of . .
. expeditious judicial remed[ies] may negate any claim that a
party has been deprived of a constitutionally protected interest
as a result of agency inaction").
The same opportunity existed regarding the delay caused by
the DAG inadvertently misplacing the file. The DAG moved for
summary disposition more than four years after G.R. could have
reasonably expected to receive a hearing date. However, from
December 2009 to January 2013, a period of about three years,
G.R. did not inquire about the status of her pending
administrative appeal. Although N.J.A.C. 1:1-12.5 provides that
13 A-4594-12T4 motions for summary disposition "must be filed no later than
[thirty] days prior to the first scheduled [OAL] hearing date or
by such date as ordered by the [Administrative Law] judge," G.R.
failed to exercise judicial remedies that were available to her.
B.
G.R.'s fundamental fairness argument requires attention on
remand because the Director did not consider the contention
other than to state that G.R. was not prejudiced by the delay.
As Justice Patterson recently stated in State v. Miller, 216
N.J. 40, 71-72 (2013), cert. denied, ___ U.S. ___, 134 S. Ct.
1329, 188 L. Ed. 2d 339 (2014), the doctrine of fundamental
fairness
is an integral part of due process, and is often extrapolated from or implied in other constitutional guarantees. The doctrine effectuates imperatives that government minimize arbitrary action, and is often employed when narrowed constitutional standards fall short of protecting individual[s] against unjustified harassment, anxiety, or expense.
Fundamental fairness is a doctrine to be sparingly applied. The doctrine is applied in those rare cases where not to do so will subject [an individual] to oppression, harassment, or egregious deprivation.
[(Emphasis added) (citations and internal quotation marks omitted).]
In limited circumstances, agency actions may be set aside as
fundamentally unfair where the agency failed to act within a
14 A-4594-12T4 reasonable time and the delay "evidence[d] an entire lack of
that acute appreciation of justice which should characterize a
tribunal with [such a] delicate and important duty." In re
Arndt, 67 N.J. 432, 436-37 (1975) (alterations in original)
(citation and internal quotation marks omitted) (concluding "the
proceedings as a whole were conducted with seriously unfair
disregard" of the party's rights).
Here, G.R. lived with the uncertainty of whether her name
would appear on the Registry for approximately five years. The
Registry serves an important public function by assuring that
adoption agencies, employers such as day care centers, and other
organizations that deal with children are apprised of the
harmful conduct that led a particular individual to be listed on
the Registry. N.J. Div. of Youth & Family Servs. v. M.R., 314
N.J. Super. 390, 399-402 (App. Div. 1998). Yet the adverse
reputational consequences for an innocent individual listed in
the Registry can be devastating. See N.J. Div. of Youth &
Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004),
certif. denied, 182 N.J. 426 (2005). Disclosing a name from the
Registry "'not only injure[s] [a person's] good name' but also
significantly limits that person's 'capacity to obtain
employment in a vast array of education-related jobs.'" Div. of
Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 66 (App. Div.
15 A-4594-12T4 2005) (alterations in original) (citation omitted). And
although Registry reports are deemed confidential, they "may be
disclosed as authorized in N.J.S.A. 9:6-8.10a [listing twenty-
three entities entitled to Registry records upon request],
subject to certain restrictions." M.R., supra, 314 N.J. Super.
at 399-400. On this record, we are unable to determine whether
G.R. suffered from unjustified anxiety or expense, or whether
the Division's failure to apply the fundamental fairness
doctrine subjected her to oppression or egregious deprivation.
IV.
We conclude primarily that G.R. is entitled to an
administrative hearing because the parties have disputed
material facts. On remand, G.R. may renew her contentions that
she is entitled to a dismissal based on the five-year delay or
on the grounds of fundamental fairness. We note that delay
alone "will not generally affect the validity of an
administrative determination, particularly where no prejudice is
shown." In re Kallen, 92 N.J. 14, 27 (1983) (citation and
internal quotation marks omitted); see also State v. Yoskowitz,
116 N.J. 679 (1989) (remanding for the trial court to determine
if prosecution was barred by principles of fundamental fairness,
as the record was inadequate on that issue). We express no
opinion on the merits of G.R.'s request to dismiss the case or
16 A-4594-12T4 whether the incident constituted neglect under the statute
because both issues are dependent on the remand proceedings.
Reversed and remanded for further proceedings consistent
with this opinion and applicable law. We do not retain
jurisdiction.
17 A-4594-12T4