Department of Children & Families v. E.D.-o.

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Department of Children & Families v. E.D.-O. (A-109-13) (073916)
Argued April 27, 2015 -- Decided August 20, 2015
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal concerning allegations of neglect by a parent, the Court considers, among other issues,
whether N.J.S.A. 9:6-8.21(c)(4)(b) requires a finding that the parent’s conduct presents an imminent risk of harm to
the child at the time of fact-finding or at the time of the event that triggered agency intervention.
In May 2009, E.D.-O. left her sleeping nineteen-month-old child unattended for approximately ten minutes
in a locked motor vehicle with the motor running. E.D.-O. was arrested and charged with endangering the welfare
of her child. She later was released, and the police referred the matter to the Division of Child Protection and
Permanency (Division). Following an investigation, a Division caseworker substantiated the allegation of neglect
based on E.D.-O. leaving the child unattended in the car while she shopped in a nearby store. The Division filed a
complaint against E.D.-O. and her husband, pursuant to N.J.S.A. 9:6-8.21 to -8.73 (Title 9), seeking care and
supervision of their four children. E.D.-O. then filed with the Division an appeal of the substantiation of neglect
finding and requested an administrative hearing. The Division denied the request pending resolution of the criminal
charges and the protective services litigation. The Title 9 complaint was resolved by a consent order, and E.D.-O.
renewed her administrative appeal of the substantiation determination.
On September 28, 2012, E.D.-O. filed a notice of tort claim with various State agencies, including the
Division. A deputy attorney general then filed a motion seeking an order (1) summarily affirming the Division’s
decision to substantiate neglect against E.D.-O., and (2) denying her request for a hearing. E.D.-O. filed a cross-
motion for summary disposition. On March 4, 2013, the Division Director denied E.D.-O.’s request for a hearing,
granted the Division’s motion for summary disposition, and ordered that E.D.-O.’s name be placed in the Central
Registry, pursuant to N.J.S.A. 9:6-8.11. The Director stated that E.D.-O. failed to identify a contested fact that
required an evidentiary hearing; therefore, the Director concluded that the Division was not required to forward
E.D.-O.’s appeal to the Office of Administrative Law (OAL).
E.D.-O. appealed, and the Appellate Division affirmed the final agency decision substantiating neglect.
434 N.J. Super. 154 (App. Div. 2014). The appellate panel concluded that a hearing in the OAL was unnecessary
because E.D.-O.’s actions plainly constituted gross neglect. The Court granted certification. 218 N.J. 530 (2014).
HELD: N.J.S.A. 9:6-8.21(c)(4)(b) requires a finding that the parent’s conduct presents an imminent risk of harm to
the child at the time of the event that triggered the Division’s intervention. In addition, the determination of whether
a parent’s conduct is negligent or grossly negligent requires an evaluation of the totality of the circumstances, which
can only occur through a hearing. The Division should have referred E.D.-O.’s appeal to the OAL for a hearing.
1. Title 9’s definition of “abused or neglected child” initially looks for actual impairment to the child. Absent
evidence of actual harm, the focus shifts to whether there is a threat of harm. In those circumstances, the Division
must show imminent danger or a substantial risk of harm by a preponderance of the evidence. That assessment must
consist of a particularized review of a parent’s or caretaker’s actions and the impact of any act or omission on the
child. In all but the most obvious instances, that analysis must avoid resort to categorical conclusions. (pp. 14-21)
2. Whether a parent’s or caretaker’s decision to leave a child unattended in a home or a car constitutes neglect has
been the subject of several appellate decisions. This court has emphasized that “‘failure . . . to exercise a minimum
degree of care’” -- the statutory foundation for a finding of neglect -- “at least requires grossly negligent or reckless
conduct.” Dep’t of Children & Families v. T.B., 207 N.J. 294, 306 (2011) (quoting N.J.S.A. 9:6-8.21(c)(4)(b)).
Appellate courts also have explained that the standard is not whether some potential for harm exists. A parent fails
to exercise a minimum degree of care when she is aware of the dangers inherent in a situation and fails adequately to
supervise the child or recklessly creates a risk of serious injury to the child. (pp. 21-26)
3. Each determination of whether conduct constitutes child abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(b)
requires a finding of whether the child suffered actual physical, mental, or emotional harm or whether the conduct
exposed the child to an imminent risk of such harm. E.D.-O. contends that when no actual harm occurs to the child,
the focus of the risk of harm is not at the time of the occurrence of the event, but at the time of fact-finding by the
agency or an ALJ or a trial court. On this interpretive issue, the Court begins its inquiry with the plain language of
the statute, which, in this case, is not dispositive. Moreover, the textual analysis advanced by E.D.-O. is out of step
with the legislative intent of the statute, and deviates from several opinions of this Court and of the Appellate
Division. Applied strictly, E.D.-O.’s focus on the risk at that time of the fact-finding has the obvious potential to
overlook conduct, even aberrational conduct, that had the clear capacity to produce a catastrophic result. Such an
approach contravenes the legislative determination that child protective services and a court may intervene before a
child experiences actual harm. Focusing on a parent’s conduct at the time of the incident does not preclude ever
considering the risk of harm posed by a parent at the time of a hearing. In fact, the myriad dispositions available to
the trial court after it enters a finding of abuse or neglect are fashioned based on current circumstances. (pp. 27-33)
4. The Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to –24, governs rulemaking by State agencies and
provides basic ground rules for the conduct of administrative hearings in contested matters. A contested case
commences when an agency renders a decision and a person seeks review of the decision. N.J.S.A. 52:14B-2(b).
The agency must first determine whether the request for review constitutes a contested case. If so, the matter is
forwarded to the OAL to assign an ALJ and schedule a hearing. The Division has promulgated rules governing
dispute resolution. See N.J.A.C. 10:120A-1.2(a)(2). In essence, the Division has imported the summary disposition
procedure utilized by the OAL, see N.J.A.C. 1:1-12.5, to perform its threshold function of identifying an appeal that
requires reference to the OAL. The Court questions whether this two-step procedure was ever contemplated by the
APA or is compliant with the APA’s overall intent. (pp. 34-37)
5. Any allegation of child neglect in which the conduct of the parent or caretaker does not cause actual harm is fact-
sensitive and must be resolved on a case-by-case basis. The treatment of this matter and others discussed in this
opinion evinces a proclivity by the Division to apply a categorical rule that any parent or caretaker who leaves a
young child unattended for any length of time, particularly in a motor vehicle, has failed to exercise a minimum
degree of care that places the child in imminent danger of impairing that child’s physical, emotional, or mental well-
being. The Court continues to disapprove of the Division’s resort to a categorical approach to this subset of cases.
When substantiation of neglect must be determined on a case-by-case basis, there is little room for disposition of an
appeal of a substantiation of neglect through the agency’s self-devised summary disposition procedure. E.D.-O.’s
appeal from the Division’s substantiation of neglect should have been referred to the OAL, and E.D.-O. should have
had the opportunity to advance all of the circumstances surrounding the event. (pp. 37-40)
6. The Court comments on the excessive amount of time that elapsed between E.D.-O.’s initial appeal of the
substantiation determination, her renewed appeal following dismissal of the Title 9 complaint, and the filing of the
motion for summary disposition in the Division. The Court finds the lapse of time troubling, and notes that no one -
- parents, caretakers, or the public -- is served when an issue as important as whether an adult abused or neglected a
child remains unresolved for years. (pp. 40-41)
7. Finally, the Court notes that enrollment in the Central Registry is a consequence of a finding of abuse or neglect.
N.J.S.A. 9:6-8.11. Although the Court is mindful of the consequences of enrollment in the Registry and the duration
of those consequences, it is not the function of the Court to address those seeming excesses by distorting the analysis
of the underlying conduct. The Court finds that the concerns addressed by E.D.-O. and others are best addressed by
the Legislature and, perhaps, the Division. (pp. 41-42)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Office of
Administrative Law for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA and SOLOMON join in JUDGE CUFF’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-109 September Term 2013
073916
DEPARTMENT OF CHILDREN AND
FAMILIES, DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Petitioner-Respondent,
v.
E.D.-O.,
Respondent-Appellant.
Argued April 27, 2015 – Decided August 20, 2015
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 434 N.J. Super. 154 (App. Div.
2014).
Sean Marotta argued the cause for appellant
(Hogan Lovells US and Epstein Arlen,
attorneys; Mr. Marotta, Daniel N. Epstein,
and Carol E. Matula, on the briefs).
Erin O’Leary, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney; Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Ms.
O’Leary, and Ann Avram Huber, Deputy
Attorney General, on the briefs).
T. Gary Mitchell, Deputy Public Defender,
argued the cause for amicus curiae Public
Defender Parental Representation (Joseph E.
Krakora, Public Defender, attorney; Mr.
Mitchell and Robyn A. Veasey, Deputy Public
Defender & Managing Attorney, of counsel).
1
Jeyanthi C. Rajaraman argued the cause for
amicus curiae Legal Services of New Jersey
(Melville D. Miller, Jr., President,
attorney; Ms. Rajaraman, Mr. Miller, and
Mary M. McManus-Smith, on the brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
All too frequently we hear of a parent who left a child
unattended in a motor vehicle. In some instances the outcome
has been tragic. Yet, even when no harm comes to the child, the
parent still may be charged with a criminal offense or, if such
action is warranted, the matter may be referred to the relevant
child welfare agency. This is one of the latter cases.
In this appeal, on a morning in early May 2009, a mother
left her sleeping nineteen-month-old child unattended for
approximately ten minutes in a locked motor vehicle with the
motor running in a shopping mall parking lot. The Division of
Child Protection and Permanency1 (Division) substantiated
neglect, and the mother filed for an administrative review of
that determination. The Division filed a complaint in the
Superior Court, pursuant to N.J.S.A. 9:6-8.21 to -8.73 (Title
9), seeking care and supervision of the unattended child and her
siblings. That complaint was resolved by a consent order, and
1 Effective June 29, 2012, the Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency. L. 2012, c. 16.
2
the mother renewed her administrative appeal of the
substantiation determination.
Years later, the Division determined that no genuine issue
of material fact existed and summarily disposed of the matter.
The Appellate Division affirmed the final agency decision
substantiating neglect. The appellate panel concluded that a
hearing in the Office of Administrative Law (OAL) was
unnecessary because the mother’s actions plainly constituted
gross neglect.
Before this Court, the mother argues that in a case in
which no actual harm befell the child, the Division must
evaluate whether her conduct caused an imminent risk of harm to
her child at the time of fact-finding, rather than at the time
of the event. To do otherwise, she insists, is contrary to the
plain meaning and legislative intent of the statute.
Furthermore, the mother argues that requiring her name to be
listed on the Central Registry2 for a single lapse in judgment is
unreasonable.
2 N.J.S.A. 9:6-8.11 creates a child abuse registry that serves as
“the repository of all information regarding child abuse or
neglect that is accessible to the public pursuant to State and
federal law.” The records may be disclosed to physicians,
courts, child welfare agencies, and certain employers. See N.J.
Dep’t of Children & Families v. A.L., 213 N.J. 1, 26 (2013)
(citing N.J.S.A. 9:6-8.10a(b)(1)-(23)).
3
Finally, the mother insists that the Division erred and the
Appellate Division compounded the error by applying a
categorical approach to evaluate her actions. She maintains
that the Division should have referred her appeal to the OAL for
a hearing by an Administrative Law Judge (ALJ).
We reject the interpretation of the definition of abuse and
neglect, N.J.S.A. 9:6-8.21(c)(4)(b), advanced by the mother that
the statute requires a finding that the parent’s conduct
presents an imminent risk of harm to the child at the time of
fact-finding rather than at the time of the event that triggered
the Division’s intervention. Such an interpretation is not
supported by the text of the statute, the legislative history,
the Court’s long-standing interpretation and application of the
statute, or common sense.
We also hold that the Division should have referred the
mother’s appeal to the OAL for a hearing. Leaving a child
unattended in a car or a house is negligent conduct. However,
this Court has emphasized that whether a parent’s conduct is
negligent or grossly negligent requires an evaluation of the
totality of the circumstances. Such an evaluation can only
occur through a hearing. The Division not only denied the
mother a timely determination of her appeal but also denied her
an individualized review of the unique circumstances attendant
4
to the incident involving her child. We therefore reverse and
remand this matter for a hearing before the OAL.
I.
On the morning of May 6, 2009, E.D.-O. drove to the Dollar
Tree store in the Middlesex Mall in South Plainfield with her
nineteen-month-old daughter, S.O., to pick up party supplies for
a birthday celebration for one of her other children. S.O. fell
asleep in her car seat. Not wanting to wake her sleeping child,
E.D.-O. decided to leave her asleep in the backseat of the car.
She parked about 150 feet, or ten parking spaces, away from the
store, left the engine running, opened both front windows
slightly, and locked the doors. The sky was overcast and the
temperature was about fifty-five degrees.
While E.D.-O. was in the store, a security guard noticed
the running car and the sleeping child. He called the police.
The security guard estimated that five or ten minutes elapsed
between the time he observed the car and the arrival of the
police. When E.D.-O. emerged from the store, she was confronted
by a police officer. E.D.-O. indicated that she observed police
activity around her car while she was paying for her
merchandise. She estimated that she left her daughter
unattended for less than ten minutes.
A police officer arrested E.D.-O. and charged her with
endangering the welfare of her child. E.D.-O. contacted her
5
father, who took custody of the child. E.D.-O. was released on
her own recognizance, and the police referred the matter to the
Division.
Later that day, a caseworker from the Division arrived at
E.D.-O.’s home. The caseworker reported that E.D.-O. cried
during the interview and stated that she had never left this
child or any of her other children unattended in a car. She
told the caseworker that she usually would leave S.O. with her
parents or stay home if S.O. was sleeping. However, E.D.-O.
said, that morning, S.O. had fallen asleep on the drive to the
store. The caseworker inspected the house, finding that each
child had their own bedroom, the house was clean, and there was
adequate food for the family. She also reported that S.O. was
dressed appropriately and appeared to be well-nurtured.
The Division caseworker interviewed E.D.-O.’s husband and
three other children, ages nine, six, and four years old. E.D.-
O.’s husband informed the caseworker that his wife had never
left their children unattended before this incident. He stated
that she was a caring mother who also very capably managed his
electrical business. He told the caseworker he was confident
E.D.-O. would never make this mistake again and that he believed
she realized that she had made a bad decision. The children
confirmed that their parents never left them home alone. At the
conclusion of her investigation, the caseworker substantiated
6
the allegation of neglect based on E.D.-O. leaving the child
unattended in the car while she shopped in a nearby store.
II.
On May 19, 2009, the Division filed a complaint in Superior
Court against E.D.-O. and her husband seeking care and
supervision of their four children.
On May 27, 2009, soon after the Division filed its
complaint, E.D.-O. filed with the Division an appeal of the
substantiation of neglect finding and requested an
administrative hearing. The Division denied the request pending
resolution of the criminal charges and the protective services
litigation. On September 9, 2009, following dismissal of the
Title 9 complaint pursuant to a consent order,3 E.D.-O. renewed
her request to appeal the substantiation of neglect. Counsel
for E.D.-O. sent additional letters concerning E.D.-O.’s
substantiation appeal on November 9, 2009, August 12, 2010, and
July 19, 2012.
On September 28, 2012, E.D.-O. filed a notice of tort claim
with various State agencies, including the Division. As the
basis for E.D.-O.’s claim, the notice identified the Division’s
refusal to schedule a hearing, thus causing injury to E.D.-O.’s
3 The record does not reveal the disposition of the criminal
charge filed against E.D.-O., although there is no mention in
the record of any conviction entered against E.D.-O.
7
reputation. On December 3, 2012, a deputy attorney general
filed a motion seeking an order summarily affirming the
Division’s decision to substantiate neglect against E.D.-O. and
denying her request for a hearing. E.D.-O. filed a cross-motion
for summary disposition in which she noted that the Appellate
Division had reached different results in various cases
addressing the issue of whether leaving a child unattended
constituted neglect.
On March 4, 2013, the Division Director denied E.D.-O.’s
request for a hearing, granted the Division’s motion for summary
disposition, and ordered that E.D.-O.’s name be placed in the
Central Registry. The Director stated that E.D.-O. failed to
identify a contested fact that required an evidentiary hearing;
therefore, the Director concluded that the Division was not
required to forward E.D.-O.’s appeal to the OAL.
E.D.-O. appealed, and the Appellate Division affirmed.
Dep’t of Children & Families, Div. of Child Prot. & Permanency
v. E.D.-O., 434 N.J. Super. 154 (App. Div. 2014). In so doing,
it agreed that an evidentiary hearing was not required. Id. at
157. The panel noted that the material facts were not disputed
and that the Director had properly invoked the summary
disposition procedure. Ibid.
The Appellate Division proceeded to frame the legal issue
as “whether the material facts support a finding of abuse or
8
neglect.” Ibid. It answered that inquiry in the affirmative,
stating that
[a]lthough there may be instances in which
such an act may be fairly labeled “merely
negligent,” we need not describe at any length
the parade of horribles that could have
attended [E.D.-O.’s] neglect in concluding, as
did the Director, that the act of leaving a
child alone in a motor vehicle with its engine
running, to enter premises 150 feet away, is
a reckless act enveloped by the standard
contained in N.J.S.A. 9:6-8.21(c)(4)(b).
[Id. at 160.]
The Appellate Division acknowledged that the child was not
harmed but emphasized that a finding of neglect often “arise[s]
because of a legitimate and reasonable inference -- stemming
from the act or omission in question -- that ‘the child is
subject to future danger.’” Id. at 159 n.5 (quoting Dep’t of
Children & Families v. T.B., 207 N.J. 294, 307 (2011)).
Regarding the facts of the appeal, the panel determined
that “‘an ordinary reasonable person’” would have “recognize[d]
the peril.” Id. at 161 (quoting G.S. v. Dep’t of Human Servs.,
157 N.J. 161, 179 (1999)). Specifically, the panel explained
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.” Ibid. The panel
determined that “[E.D.-O.] recognized the danger when she felt
it necessary to lock the vehicle’s doors and lower both the
9
front windows by an inch.” Ibid. The panel conceded however
that there may be circumstances when leaving a child unattended
in a motor vehicle may not run afoul of N.J.S.A. 9:6-
8.21(c)(4)(b). It cited as an example a parent who left a sick
and sleeping child in a car while the parent entered a pharmacy
to purchase a prescription for the child. Id. at 162. Those
extenuating circumstances would not be considered grossly
negligent conduct as defined by section 8.21(c)(4)(b).
This Court granted E.D.-O.’s petition for certification.
218 N.J. 530 (2014).
III.
A.
E.D.-O. advances three arguments in support of her
contention that the Appellate Division’s judgment must be
reversed.
First, she argues that a parent should not be placed on the
Central Registry when the alleged act of abuse or neglect is
aberrational and the parent does not pose a risk of harm to any
child at the time the complaint seeking care and supervision of
her children is heard or the Director renders a decision. This
argument relies on a textual analysis of N.J.S.A. 9:6-
8.21(c)(4)(b), New Jersey Division of Child Protection &
Permanency v. M.C., 435 N.J. Super. 405 (App. Div.), certif.
granted, 220 N.J. 41 (2014), to support her contention that the
10
Division is required to prove that the child has suffered actual
harm or that the child remains at risk of imminent harm at the
time of the fact-finding. According to E.D.-O., the facts of
this case could never support a finding of neglect because the
child suffered no actual harm and there was absolutely no
evidence that there was any present or continuing risk of harm
at the time the Director rendered her decision. E.D.-O. argues
that her inclusion in the Central Registry, when her conduct
posed no present or continuing risk of harm to the child, only
compounds the error.
Second, E.D.-O. contends that the Director should have
granted her motion for summary disposition because the Division
failed to produce particularized evidence that she placed her
daughter in imminent danger or subjected her to a substantial
risk of harm.
Third, E.D.-O. maintains that she should have received an
evidentiary hearing.
B.
The Division urges this Court to affirm the judgment of the
Appellate Division. The Division invokes the rule extending
deference to agency fact-finding and interpretation of a statute
the agency is charged with enforcing. The Division also urges
that the finding of neglect is well supported by the record. It
submits that there are no exigent or extenuating circumstances
11
that justify the action taken by E.D.-O. in this case. The
Division also maintains that its disposition is consistent with
well-established authority.
Furthermore, the Division urges the Court to reject E.D.-
O.’s interpretation of section 8.21(c)(4)(b) that the child must
be in imminent danger of becoming impaired at the time of the
finding. The Division submits that the interpretation offered
by E.D.-O. is contrary to established authority and that a plain
reading of the statute indicates that the risk of harm posed by
a parent must be evaluated at the time of the parent’s abusive
or neglectful conduct.
The Division also contends that an administrative hearing
before the OAL was not required because no material fact was in
dispute. The Division emphasizes that both parties maintained
that summary disposition was appropriate to resolve the issue.
The Division maintains that E.D.-O. has waived this argument
because she failed to request an evidentiary hearing before the
agency.
C.
Amicus curiae Office of Parental Representation of the
Office of the Public Defender (OPR) urges this Court to reverse
the judgment of the Appellate Division. OPR contends that E.D.-
O. did not receive a full and fair hearing and that the Director
applied a categorical rule. OPR contends that the record lacked
12
any particularized evidence of imminent danger to the sleeping
child.
OPR also expresses concern about the litigation tactics
employed by the Division. OPR argues that the Division’s
decision to dismiss the complaint it filed in Superior Court
should preclude further litigation of the issue in a court of
law or before the agency. OPR postulates that the Division may
have engaged in forum shopping to assure a favorable outcome.
Finally, OPR posits that “a defendant . . . will rarely ever
consent to forego a fact-finding, without attempting first to
secure . . . [a] withdrawal of a substantiation of neglect or
abuse.” As a result, the Family Part will experience an
increase in litigation.
OPR also argues that the statute requires the agency or a
court to address fact-sensitive claims in an evidentiary
hearing. It maintains that inclusion on the Central Registry
without an evidentiary hearing is contrary to the procedural
protections contemplated by Title 9.
Amicus curiae Legal Services of New Jersey (LSNJ) urges
this Court to reverse the Appellate Division’s judgment because
E.D.-O. faces the “severe, frequently life-altering effects” of
being placed on the Central Registry without an adjudication
from a court or even a fact-finding hearing. LSNJ also
highlights four procedural flaws committed by the Division,
13
including the omission of “an evidence-based fact-finding
hearing before a neutral adjudicator,” the unilateral
determination by the Director of “no material issue of fact,”
the inordinate and unjustified delay of E.D.-O.’s appeal of the
substantiation decision, and the failure to clearly notify E.D.-
O. and others of the effect of substantiation.
LSNJ also contends that the Appellate Division failed to
consider all of the elements of N.J.S.A. 9:6-8.21(c)(4)(b),
specifically, that “an act or omission . . . demonstrates
reckless disregard of substantial danger,” that the child’s
condition has been actually impaired or the child is in imminent
danger of impairment, and that “a causal link [exists] between
the recklessness and the ‘actual or imminent’ impairment.”
Finally, LSNJ urges this Court to provide guidance on the
factors that should be considered in cases involving unattended
children.
IV.
A.
In general, “Title 9 controls the adjudication of abuse and
neglect cases.” N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 343 (2010) (citing N.J.S.A. 9:6-8.21 to -8.73).
This Court has explained that “[t]he purpose animating Title 9
‘is to provide for the protection of children under 18 years of
age who have had serious injury inflicted upon them.’” N.J.
14
Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011)
(quoting N.J.S.A. 9:6-8.8). Indeed, Title 9 declares that its
purpose is
to provide for the protection of children
under 18 years of age who have had serious
injury inflicted upon them by other than
accidental means. The safety of the children
served shall be of paramount concern. It is
the intent of this legislation to assure that
the lives of innocent children are immediately
safeguarded from further injury and possible
death and that the legal rights of such
children are fully protected.
[N.J.S.A. 9:6-8.8(a).]
Title 9’s main focus is not the “culpability of parental
conduct” but rather “the protection of children.” G.S., supra,
157 N.J. at 177. The sponsors of the original bill proclaimed
this same focus:
This bill recognizes that children have
certain legal rights, most important of these
being the right of protection from physical
abuse and neglect.
The purpose of this bill is to insure
that these rights will be adequately protected
by the appropriate courts and social service
agencies. Any proceedings under this bill
will be carried out with the best interest of
the child or children involved as the primary
concern.
[S. 1217 (Sponsor’s Statement), 196th Leg.
(Apr. 29, 1974).]
Title 9 defines an “abused or neglected child,” in
pertinent part, as
15
a child less than 18 years of age . . . 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.
[N.J.S.A. 9:6-8.21(c)(4)(b).]
Accordingly, Title 9 initially looks for actual impairment to
the child. However, when there is no evidence of actual harm,
the focus shifts to whether there is a threat of harm. N.J.
Dep’t of Children & Families v. A.L., 213 N.J. 1, 22 (2013).
Thus, “a finding of abuse and neglect can be based on proof of
imminent danger and a substantial risk of harm.” Id. at 23.
Under those circumstances, “the Division must show imminent
danger or a substantial risk of harm to a child by a
preponderance of the evidence.” Ibid. (citing N.J.S.A. 9:6-
8.21(c)(4)(b), -8.46(b)). Moreover, “[c]ourts need not wait to
act until a child is actually irreparably impaired by parental
inattention or neglect.” In re Guardianship of D.M.H., 161 N.J.
365, 383 (1999).
To find abuse or neglect, the parent must “fail[] . . . to
exercise a minimum degree of care.” N.J.S.A. 9:6-8.21(c)(4)(b).
This Court examined the “minimum degree of care” standard in
G.S.:
16
The phrase “minimum degree of care” denotes a
lesser burden on the actor than a duty of
ordinary care. If a lesser measure of care is
required of an actor, then something more than
ordinary negligence is required to hold the
actor liable. The most logical higher measure
of neglect is found in conduct that is grossly
negligent because it is willful or wanton.
Therefore, we believe the phrase “minimum
degree of care” refers to conduct that is
grossly or wantonly negligent, but not
necessarily intentional.
[G.S., supra, 157 N.J. at 178.]
The Court further explained what amounts to willful or wanton
conduct:
Conduct is considered willful or wanton
if done with the knowledge that injury is
likely to, or probably will, result . . . .
The label turns on an evaluation of the
seriousness of the actor’s misconduct.
McLaughlin[ v. Rova Farms, Inc.], 56 N.J.
[288,] 306 [(1970)]. Although it is clear
that the phrase implies more than simple
negligence, it can apply to situations ranging
from “slight inadvertence to malicious purpose
to inflict injury.” Id. at 305; Krauth v.
Israel Geller and Buckingham Homes, Inc., 31
N.J. 270, 277 (1960) . . . .
Essentially, the concept of willful and
wanton misconduct implies that a person has
acted with reckless disregard for the safety
of others. Fielder[ v. Stonack], 141 N.J.
[101], 123 [(1995)]; McLaughlin, supra, 56
N.J. 305. Where an ordinary reasonable person
would understand that a situation poses
dangerous risks and acts without regard for
the potentially serious consequences, the law
holds him responsible for the injuries he
causes. Ibid. Thus, under a wanton and
willful negligence standard, a person is
liable for the foreseeable consequences of her
17
actions, regardless of whether she actually
intended to cause injury.
[G.S., supra, 157 N.J. at 178-79.]
Therefore, the Court held that “a guardian fails to exercise a
minimum degree of care when he or she is aware of the dangers
inherent in a situation and fails adequately to supervise the
child or recklessly creates a risk of serious injury to that
child.” Id. at 181; see also T.B., supra, 207 N.J. at 306
(restating standard as “‘failure . . . to exercise a minimum
degree of care’ requires at least grossly negligent or reckless
conduct”).
Abuse and neglect cases “are fact-sensitive.” T.B., supra,
207 N.J. at 309. An analysis of a parent’s conduct must account
for the surrounding circumstances. G.S., supra, 157 N.J. at
181-82 (“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.”). In G.S., this Court
instructed that
the 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.
Ultimately, we leave it to [the Division] and
the courts to determine, on a case-by-case
basis, whether a caregiver has failed to
18
exercise a minimum degree of care in
protecting a child.
[Id. at 182.]
Failing to perform a cautionary act, however, is not necessarily
abuse or neglect. T.B., supra, 207 N.J. at 306-07. Instead, to
be considered abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b),
that failure must rise to the level of gross negligence. Ibid.
(explaining mere negligence in failing to perform cautionary act
insufficient under statute).
Furthermore, in light of the Legislature’s stated intention
to protect children, the focus in assessing a parent’s conduct
is “on the parent’s level of culpability.” Id. at 307. As a
result, the Court has stated that
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.
[Ibid.]
That assessment must consist of a particularized review of
a parent’s or caretaker’s actions and the impact of any act or
omission on the child. P.W.R., supra, 205 N.J. at 33. In all
but the most obvious instances, that assessment must avoid
resort to categorical conclusions. See T.B., supra, 207 N.J. at
309.
19
In cases where the child has not suffered actual harm, the
Division must “demonstrat[e] some form of . . . threatened harm
to a child.” A.L., supra, 213 N.J. at 25. A.L. illustrates the
rule requiring a particularized review of each situation in
which the Division asserts that a parent or caretaker has
neglected a child. Ibid. In A.L., the Division filed a
complaint pursuant to N.J.S.A. 9:6-8.21(c)(4)(b) alleging that
the mother had abused or neglected her infant, who tested
positive for cocaine metabolites. Id. at 9. At the fact-
finding hearing, the Division relied solely on medical records
from the hospital at which the child was born and the mother’s
prenatal drug use to support its allegation that the mother had
abused or neglected her child. Id. at 12-13. The Division
conceded that it could not prove actual harm to the child. Id.
at 13. However, it argued that the mother’s prenatal drug use
and the presence of cocaine metabolites in the infant supported
a finding that the mother had exposed her child to a substantial
risk of harm. Ibid.
The Court determined that “[t]he records, without more,
revealed little about the degree of future harm posed to the
newborn, which is the statute’s critical focus in this case.”
Id. at 9. The Court also noted that the Division had adduced no
evidence about A.L.’s behavior or the health and development of
her child in the months following the child’s birth. Id. at 12-
20
13. The Court emphasized the obligation of the Division to
demonstrate “some form of actual or threatened harm to a child.”
Id. at 25. Ultimately, it concluded that “a report noting the
presence of cocaine metabolites in [the baby’s first stool],
without more, does not establish proof of imminent danger or
substantial risk of harm.” Id. at 27-28.
B.
Whether a parent’s or caretaker’s decision to leave a child
unattended in a home or a car constitutes neglect has been the
subject of several appellate decisions. In T.B., supra, the
Court examined whether a parent neglected her child when she
left her sleeping four-year-old son alone in their home for over
two hours. 207 N.J. at 296-97. When he awoke and could not
find his mother, the child left the house. Id. at 297. He was
found across the street from his home. Ibid.
In T.B., the mother contested the Division’s substantiation
of neglect. Id. at 299. At a hearing, she testified that she
saw her own mother’s car parked in the driveway and assumed her
mother was at home before dropping off her son. Id. at 297-98.
The child and his mother lived in the same home as the maternal
grandparents, who also regularly participated in the child’s
care. Id. at 296-97. The Court emphasized that “‘failure . . .
to exercise a minimum degree of care’” -- the statutory
foundation for a finding of neglect -- “at least requires
21
grossly negligent or reckless conduct.” Id. at 306 (quoting
N.J.S.A. 9:6-8.21(c)(4)(b)). The Court also emphasized that
“the ‘cautionary act’ language in G.S. is informed by the
grossly negligent or reckless standard that that case
established. In other words, every failure to perform a
cautionary act is not abuse or neglect.” Ibid.
Applying that understanding of the standard articulated in
N.J.S.A. 9:6-8.21(c)(4)(b), the Court concluded that the
mother’s conduct was not grossly negligent or reckless, id. at
309, although her conduct was certainly negligent, id. at 310.
The Court explained that
[t]his is not a situation in which she left
her four-year-old son at home alone knowing
there was no adult supervision. Instead, [the
mother], who lived with her parents and is
intimately familiar with the rhythms of their
every-day-family-life, arrived at her home on
a Sunday night and saw her mother’s car in the
driveway. She knew that her mother was always
home on Sunday nights to prepare for work on
Monday morning . . . . What occurred on the
date in question was totally out of the
ordinary. To be sure, [the mother’s] failure
to perform the cautionary act of calling
upstairs to assure her mother’s presence was
clearly negligent. Under all of the
circumstances known to her however, it did not
rise to the level of gross negligence or
recklessness.
[Id. at 309-10.]
22
The Court therefore did not reach the issue of whether the
mother’s clearly negligent act posed a risk of harm to her
child. Id. at 310.
In New Jersey Division of Youth & Family Services v. J.L.,
410 N.J. Super. 159 (App. Div. 2009), the Appellate Division
reversed a final determination by the Director of the Division
of Youth & Family Services that a mother committed an act of
child neglect, as defined by N.J.S.A. 9:6-8.21(c)(4)(b), when
she permitted her four-year-old and six-year-old sons to leave
the recreation area of the condominium development in which the
family lived and enter the family home alone. Id. at 161, 174.
The mother remained in the recreation area to speak with a
friend but could see the boys at all times as they made their
way to their home. Id. at 161. J.L. had trained the boys to
leave the door, which was equipped with a child-proof cover,
ajar if they entered the home without her. Ibid. However, on
that day, the door closed. Ibid. The boys were unable to open
it. Ibid. The older boy called 9-1-1 and the police arrived
about ten minutes later. Id. at 162. Realizing that the
children had not returned, the mother collected their
belongings. Ibid. As she approached her home, she realized
that the police were at her front door. Ibid. Between the time
they left their mother and the police arrived, the children were
unsupervised for approximately thirty minutes. Id. at 166.
23
In reversing the Director’s final decision that the mother
had committed an act of child neglect by failing to supervise
her sons, the Appellate Division rejected the Division’s
contention that the mother’s conduct rose to the level of gross
negligence because of the potential of harm to the children
while unsupervised. Id. at 168. The appellate panel emphasized
however that “the standard is not whether some potential for
harm exists. A parent fails to exercise a minimum degree of
care when she is ‘aware of the dangers inherent in a situation
and fails adequately to supervise the child or recklessly
creates a risk of serious injury to the child.’” Id. at 168-69
(quoting G.S., supra, 157 N.J. at 181).
In Department of Children & Family Services v. G.R., 435
N.J. Super. 392, 393 (App. Div. 2014), a mother left her two-
year-old child asleep in a car while she entered a Target store.
A police officer observed the unattended child and issued a
summons to the mother when she returned five minutes later.
Ibid. The Appellate Division determined that the Director erred
by granting the Division’s motion to proceed summarily and in
concluding that the mother’s conduct constituted child neglect.
Id. at 399. The appellate panel noted that the existence of
multiple disputed issues of fact required referring the matter
to the OAL. Ibid. The panel proceeded to provide some
instructions to guide the remand. Id. at 399-400. The panel
24
emphasized that whether a parent or caregiver has failed to
exercise a minimum degree of care is to be “‘analyzed in light
of the dangers of the situation,’” id. at 400 (quoting G.S.,
supra, 157 N.J. at 181-82), and on a case-by-case basis, id. at
401.
In another case, the Appellate Division affirmed a
substantiation of neglect by a school bus driver who left a
five-year-old child asleep in a bus for over an hour. N.J.
Dep’t of Children & Families v. R.R., 436 N.J. Super. 53, 55
(App. Div. 2014). There, the driver did not conduct an
independent inspection of the bus at the end of the route but
relied on the advice of an aide known to the driver to be
unreliable. Id. at 58. Following a hearing and an ALJ’s
recommendation that the driver’s conduct could not be considered
grossly negligent or reckless, the Department of Children and
Families concluded that the driver’s failure to personally
inspect the bus at the end of the route was willful and wanton
conduct. Ibid. The Appellate Division determined that the
totality of the circumstances -- failing to personally inspect
the bus, deferring to the advice of her unreliable aide, and
leaving the young child alone on a bus on a day in which the
temperature soared above ninety degrees -- fully satisfied the
statutory standard of grossly negligent or reckless conduct that
25
created an imminent risk of harm to the sleeping child. Id. at
59-60.
To be sure, “[w]hether a particular event is to be
classified as merely negligent or grossly negligent defies
‘mathematical precision.’” Div. of Youth & Family Servs. v.
A.R., 419 N.J. Super. 538, 544 (App. Div. 2011) (quoting G.S.,
supra, 157 N.J. at 178). In some instances, it is a close call.
See, e.g., T.B., supra, 207 N.J. at 309. In other cases, it is
not. For example, in A.R., supra, the court considered whether
a father neglected his ten-month-old son who he left unattended
on a twin bed without railings. 419 N.J. Super. at 543. The
bed was situated next to an operating radiator. Ibid. There
was evidence that the father placed some blankets to prevent the
child from rolling off the bed. Id. at 545-46. Hours later, a
ten-year-old child sleeping in the same room awoke to find the
infant on the floor against the hot radiator. Id. at 541. The
child suffered severe burns to his right cheek, head, and left
arm. Id. at 540.
The Appellate Division reversed the trial court’s finding
that the father’s conduct was merely negligent. In this case of
actual harm, the panel determined that “[a]n ordinary reasonable
person would understand the perilous situation in which the
child was placed, and for that reason, defendant’s conduct
amounted to gross negligence.” Id. at 546.
26
V.
Each determination of whether the conduct of a parent or
caretaker constitutes child abuse or neglect pursuant to
N.J.S.A. 9:6-8.21(c)(4)(b) requires a determination of whether
the child suffered actual physical, mental, or emotional harm or
whether the conduct exposed the child to an imminent risk of
such harm. E.D.-O. argues that whether her conduct placed her
child “in imminent danger of” physical, mental, or emotional
harm must be assessed at the time the trial court conducts its
fact-finding in the context of a complaint filed by the Division
pursuant to Title 9, or at the time the agency substantiates
neglect or an ALJ concludes an appeal of a Division
substantiation of neglect. In other words, E.D.-O. contends
that in a case in which no actual harm occurs to the child, the
focus of the risk of harm is not at the time of the occurrence
of the event that brought the child and the family to the
attention of the Division, but at the time of fact-finding by
the agency or an ALJ or a trial court. According to E.D.-O.,
the inquiry in a risk of harm case is whether the parent or
caretaker’s conduct poses a current risk of imminent harm to the
child.
E.D.-O. presents, for the first time before this Court, her
argument that whether her conduct exposed the child to an
imminent risk of harm should be measured at the time of fact-
27
finding. We elect to address this interpretive issue due to the
need to remand this matter to the OAL for a hearing. In
instances in which the Court must engage in the interpretation
of a statute, our fundamental task “is to discern and effectuate
the intent of the Legislature.” Murray v. Plainfield Rescue
Squad, 210 N.J. 581, 592 (2012). We commence our inquiry with
the plain language of the statute, to which we accord its
ordinary meaning. DiProspero v. Penn, 183 N.J. 477, 492 (2005).
“If the Legislature’s intent is clear from the statutory
language and its context with related provisions, we apply the
law as written.” Shelton v. Restaurant.com, 214 N.J. 419, 429
(2013). We turn to legislative history and other intrinsic
tools to identify legislative intent when the statutory language
is ambiguous, is at odds with the general statutory scheme, or
the plain language leads to a result at odds with the public
policy objective of the statute. Wilson ex rel. Manzano v. City
of Jersey City, 209 N.J. 558, 572 (2012).
The text of N.J.S.A. 9:6-8.21(c)(4)(b) is designed to
capture grossly negligent conduct that has harmed or poses a
risk of imminent harm to a child. When the child has not
suffered actual harm, the use of the present tense “is” can be
interpreted to focus the fact-finder on the conduct at the time
of the incident, in order to evaluate what could have occurred
but for certain fortuitous circumstances. The use of the verb
28
“is” can also be interpreted as requiring the fact-finder to
concentrate on the risk of harm posed to the child at the time
of formal fact-finding. The use of the verb “is” can just as
likely be interpreted to require the fact-finder to evaluate the
risk of harm to the child at the time of the event, at the time
of fact-finding, and at the time a court fashions a remedy to
prevent future harm. We therefore conclude that the use of the
present tense in this definition that encompasses incidents of
actual harm and risk of harm is not dispositive.
Our next inquiry is whether E.D.-O.’s position is
consistent with the legislative history of Title 9. N.J.S.A.
9:6-8.21(c)(4)(b) is part of an extended definition of “abused
or neglected child.” It, in turn, is part of an act originally
adopted in 1974 and amended several times over the years. L.
1974, c. 119. Codified at N.J.S.A. 9:6-8.21 to -8.73, the Act
governs actions filed by the Division to redress conduct by
parents or guardians that causes abuse or neglect to children
under eighteen years of age. The overriding purpose of the
statute is “‘to assure that the lives of innocent children are
immediately safeguarded from further injury and possible death
and that the legal rights of such children are fully
protected.’” State v. P.Z., 152 N.J. 86, 96-99 (1997) (quoting
N.J.S.A. 9:6-8.8); accord N.J. Div. of Youth & Family Servs. v.
R.D., 207 N.J. 88, 109 (2011). It has been noted that, in
29
focusing on the risk of harm as well as actual harm to a child
from grossly negligent conduct of a parent or guardian, the
Legislature sought to squash the notion of a “free pass” if the
child did not suffer actual harm. See D.M.H., supra, 161 N.J.
at 383 (“Courts need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect.”)
Thus, we conclude that the textual analysis advanced by E.D.-O.
is simply out of step with the legislative intent of the
statute.
E.D.-O.’s approach deviates from several opinions of this
Court and the Appellate Division. In G.S., supra, the Court
addressed the “failure to exercise a minimum degree of care”
language of N.J.S.A. 9:6-8.21(c)(4)(b). 157 N.J. at 177-82.
The Court declared that “the phrase ‘minimum degree of care’
refers to conduct that is grossly or wantonly negligent, but not
necessarily intentional.” Id. at 178. Willful or wanton
conduct is “done with the knowledge that injury is likely to, or
probably will, result.” Ibid.
In G.S., a caretaker administered an entire bottle of
medication to a child. Id. at 168. When his mother returned to
pick up her child, he was semi-conscious. Ibid. When the child
arrived at the hospital, he was “lethargic and pale,” and “his
heart rate was plummeting.” Ibid. Although he suffered no
30
permanent harm, he remained hospitalized for forty-eight hours.
Ibid.
The Court concluded that there was sufficient evidence to
support a finding of neglect by the caretaker. Id. at 182. In
so holding, the Court focused on the caretaker’s conduct at the
time she administered the medication. Ibid. To be sure, the
physical manifestations of the overdose and the need for
hospitalization may classify G.S. as an actual harm case, but
the Court highlighted a “wide range of harmful conduct that all
reasonable persons would characterize as neglect.” Id. at 180.
Among those instances of harmful conduct is leaving a two-year-
old alone in a house, id. at 180-81, even though no actual harm
befell the child. Finally, the Court directed that
[w]hether 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 . . . . We
simply remind [the Division] and the courts
that the 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.
[Id. at 181-82.]
T.B., supra, a case in which no actual harm befell the
unattended child, applied the standard established in G.S. and
followed the Court’s admonition that the neglect analysis must
focus on what the parent did or could have done to remove the
31
danger to the child created by the parent’s conduct. 207 N.J.
at 309-10. The Court focused solely on the mother’s acts and
omissions on the night she left her four-year-old son
unattended. Ibid.
Similarly, the Appellate Division used the G.S. standard
and analytical paradigm to affirm a finding that a father
neglected his children by allowing their intoxicated mother to
drive them home from a family vacation. Div. of Child Prot. &
Permanency v. J.A., 436 N.J. Super. 61, 68-69 (App. Div. 2014).
Focusing on the risk of harm to the children at the time he
permitted an intoxicated person to drive a car occupied by
children, the appellate panel concluded that “no reasonable
person could fail to appreciate the danger of permitting
children to ride in a motor vehicle driven by an inebriated
driver.” Ibid. The panel further concluded that the father was
grossly negligent “in failing to protect the children from the
imminent risk of harm.” Id. at 69-70.
Thus, the position advanced by E.D.-O. to measure risk of
harm to a child due to a parent’s act or failure to act is out
of step with both the legislative purpose of the statute and
this Court’s interpretation of the statute, specifically
N.J.S.A. 9:6-8.21(c)(4)(b). Applied strictly, E.D.-O.’s focus
on the risk the parent poses to a child at the time the incident
is reviewed by a fact-finder has the obvious potential to
32
overlook conduct, even aberrational conduct, that had the clear
capacity to produce a catastrophic result. Such an approach
contravenes the legislative determination that child protective
services and a court may intervene before a child experiences
actual harm.
Focusing on a parent’s conduct at the time of the incident
to determine if a parent created an imminent risk of harm to a
child does not preclude ever considering the risk of harm posed
by a parent at the time of a hearing. Indeed, the statute
contemplates not only a fact-finding hearing, but also a
dispositional hearing. N.J.S.A. 9:6-8.47. The myriad
dispositions available to the trial court after it enters a
finding of abuse or neglect are fashioned based on current
circumstances. For example, N.J.S.A. 9:6-8.50(e) expressly
permits a trial court to suspend a dispositional hearing
indefinitely to permit the Division to report the current status
of the parent and child and whether any further services or
supervision are required.
VI.
A child or a family may come to the attention of the
Division in various circumstances. The police may respond to a
call from a family member or neighbor expressing concerns about
the well-being of a child, as in T.B.; a hospital may call the
Division to report suspected child abuse or neglect, as in A.L.;
33
a school official may call the Division to recount a student’s
report of physical or emotional abuse or neglect, as in M.C.; or
police or security personnel may encounter an unattended child
in a car, as in G.R. and this appeal. If the Division
determines that the circumstances warrant a substantiation of
neglect,4 the parent or caretaker may seek review of that
determination. Following that appeal, the Director of the
Division reviews the record and issues a final determination,
which is appealable as of right to the Appellate Division. R.
2:2-3(a)(2).
The Administrative Procedure Act (APA), N.J.S.A. 52:14B-1
to –24, governs rulemaking by State agencies and provides basic
ground rules for the conduct of administrative hearings in
contested matters within an agency’s area of responsibility.
See also N.J.S.A. 52:14F-1 to -23 (establishing independent OAL
for independent fact-finding in administrative disputes). A
contested case commences when an agency renders a decision and a
person seeks review of the decision. N.J.S.A. 52:14B-2(b). The
agency must first determine whether the request for review
4 N.J.A.C. 10:120A-1.3(a) defines “substantiated” as “a finding
when the available information, as evaluated by the child
protective investigator and supervisor, 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
child victim has been harmed or placed at risk of harm by a
parent or guardian.”
34
constitutes a contested case. If so, the matter is forwarded by
the agency to the OAL. The OAL will assign the matter to an ALJ
and schedule a hearing.
N.J.S.A. 52:14B-2(b) defines “contested case” as
a proceeding . . . in which the legal rights,
duties, obligations, privileges, benefits or
other legal relations of specific parties are
required by constitutional right or by statute
to be determined by an agency by decisions,
determinations, or orders, addressed to them
or disposing of their interests, after
opportunity for an agency hearing.
N.J.A.C. 1:1-2.1 emphasizes that a contested case is an
adversary proceeding and “must be designed to result in an
adjudication concerning the rights, duties, obligations,
privileges, benefits or other legal relations of specific
parties over which there exist disputed questions of fact, law
or disposition relating to past, current or proposed activities
or interests.”
If a matter does not meet the APA definition of a contested
case, the matter is an “uncontested case.” 37 New Jersey
Practice, Administrative Law and Practice § 5.15, at 254 (Steven
L. Lefelt et al.) (2d ed. 2000). The agency can retain the
matter and dispose of the request for review as it considers
appropriate. Ibid. However, an agency head may request the OAL
to appoint an ALJ “to conduct an uncontested case.” N.J.A.C.
1:1-21.1(a).
35
The Division has promulgated rules governing dispute
resolution, see generally N.J.A.C. 10:120A, which are designed
to “describe the preliminary efforts provided by the Division to
resolve disputes regarding . . . [a] finding of substantiated
child abuse or neglect made by the Division.” N.J.A.C. 10:120A-
1.2(a)(2). The rules also describe the procedure for requesting
formal resolution through the OAL. N.J.A.C. 10:120A-1.2(c).
The Administrative Hearings Unit (AHU) is required to transmit
to the OAL a request “by a perpetrator of child abuse or
neglect” to review a substantiated finding of abuse or neglect,
N.J.A.C. 10:120A-4.3(a)(2), unless the AHU has determined to
summarily dispose of the request to dispute such a finding,
N.J.A.C. 10:120A-4.3(c)(3). The Division may elect to invoke
the motion for summary disposition procedure when the Director
of Legal Affairs or his designee, in consultation with a
representative of the Attorney General’s Office, determine that
there are no material facts in dispute. N.J.A.C. 10:120A-
4.2(b).
Once that determination has been made, the appeal is
transmitted to the Attorney General’s Office “for assignment for
preparation of the Motion for Summary Disposition.” N.J.A.C.
10:120A-4.2(b)(1). When the motion is filed, the appellant has
ten days to file exceptions. N.J.A.C. 10:120A-4.2(c)(1). If
the agency head or designee determines that there are no
36
material facts in dispute, the Commissioner may deny the request
for administrative review and determination as to whether the
substantiation of neglect is consistent with governing law,
regulations, and agency policy. N.J.A.C. 10:120A-4.2(d). If
the agency head determines that material facts are in dispute,
the request for an administrative hearing will be granted and
the AHU will transmit the matter to the OAL. N.J.A.C. 10:120A-
4.2(e).
In essence, the Division has imported the summary
disposition procedure utilized by the OAL, see N.J.A.C. 1:1-
12.5, to perform its threshold function of identifying an appeal
that requires reference to the OAL. Given the APA’s definition
of a “contested case,” N.J.S.A. 52:14B-2(b), we question whether
this two-step procedure was ever contemplated by the APA or is
compliant with the APA’s overall intent to allow citizens the
opportunity to fully and fairly contest administrative agency
determinations that are grounded in factual applications of an
agency’s enabling statute. This two-step procedure may have
also contributed to the wholly unacceptable time it has taken in
some instances to dispose of appeals from substantiation
decisions by the Division.
VII.
Any allegation of child neglect in which the conduct of the
parent or caretaker does not cause actual harm is fact-sensitive
37
and must be resolved on a case-by-case basis. The antithesis of
a case-by-case review is an agency determination that certain
conduct poses an imminent risk of physical, emotional, or mental
harm to a child without regard to the circumstances at the time
of the conduct. The treatment of this matter, as well as others
discussed in this opinion, evinces a proclivity by the Division
to apply a categorical rule that any parent or caretaker, who
leaves a young child unattended for any length of time,
particularly in a motor vehicle, has failed to exercise a
minimum degree of care that places the child in imminent danger
of impairing that child’s physical, emotional, or mental well-
being. Yet, in all but one of the cases discussed involving an
unattended child, see G.R., supra, 435 N.J. Super. at 401-02,
the parent or caretaker received an evidentiary hearing before
an ALJ, see R.R., supra, 436 N.J. Super. at 55-56; J.L., supra,
436 N.J. Super. at 164-65, or the trial court conducted an
evidentiary hearing to adjudicate a complaint filed by the
Division pursuant to N.J.S.A. 9:6-8.21 to -8.73, see A.R.,
supra, 419 N.J. Super. at 540. In the one exception, G.R.,
supra, an appellate panel held that the agency erred by
proceeding summarily. 435 N.J. Super. at 399. We have
expressly disapproved and continue to disapprove of the
Division’s resort to a categorical approach to this subset of
cases.
38
To be sure, E.D.-O. filed a cross-motion for summary
disposition in response to the motion filed by a deputy attorney
general. The record supported a determination that no material
fact was disputed only if a categorical rule applied to
unattended children cases. E.D.-O.’s submission emphasized the
aberrational nature of the single incident. In short, the
essence of E.D.-O.’s position was that the totality of the
circumstances precluded a finding that she had acted in any way
that created an imminent and substantial risk of harm to her
sleeping toddler.
This Court and the Appellate Division have identified
circumstances when a child has been left unattended that may
compel a finding of inattentiveness or even negligent conduct,
but certainly do not rise to the level of grossly negligent
conduct. For example, in G.R., supra, the Appellate Division
identified seven circumstances that should be considered in
evaluating a parent’s conduct in such situations. 435 N.J.
Super. at 399. Those factors included the distance between the
store and the parked car, the mother’s ability to keep the car
in sight, how long the car was out of view, how long the child
remained unattended, and any extenuating circumstances. Ibid.
We note that the weather on the day the child is left unattended
and the ability of someone to enter the vehicle are also
relevant considerations. In other words, when substantiation of
39
neglect must be determined on a case-by-case basis, there is
little room for disposition of an appeal of a substantiation of
neglect through the agency’s self-devised summary disposition
procedure.
E.D.-O.’s appeal from the Division’s substantiation of
neglect should have been referred to the OAL. She should have
had the opportunity to advance all of the circumstances
surrounding the event. Those circumstances include but are not
limited to the actual distance between the vehicle and the
store, her ability to keep the vehicle in view, the length of
time she left the child unattended, the number of vehicles and
persons in the area, the ability to gain access to the interior
of the car, and the temperature inside and outside the car.
We would be remiss if we did not comment on the excessive
amount of time that elapsed between E.D.-O.’s initial appeal of
the substantiation determination, her renewed appeal following
dismissal of the Title 9 complaint, and the filing of the motion
for summary disposition in the Division. The lapse of time is
troubling. Approximately three years and four months elapsed
before the motion was filed, and that appears to have been
initiated by a notice of tort claim. No person who has been
aggrieved by agency action should have to resort to such
measures to have an appeal resolved.
40
No one -- parents, caretakers, or the public -- is served
when an issue as important as whether an adult abused or
neglected a child remains unresolved for years. Inordinate
delay in resolving substantiation appeals also takes on the
specter of the absurd when, as in this case, the child was
nineteen months old at the time of the underlying event, four
years old when the Director finally issued her decision, and
will be almost eight years old when the matter is remanded for a
hearing before an ALJ.
Finally, we observe that whether a parent’s or caretaker’s
conduct causes an imminent risk of harm is evaluated through the
lens of the statutory standard as interpreted and applied by the
Court, rather than through the lens of the consequences of a
finding of neglect, specifically, enrollment in the Central
Registry. Enrollment in the Registry is a consequence of a
finding of abuse or neglect. N.J.S.A. 9:6-8.11. We are mindful
of the consequences of enrollment in the Registry and the
duration of those consequences. We are aware that for some
acts, enrollment in the Registry may seem draconian. See W.
Todd Miller, The Central Registry Statute for Abuse and Neglect
Matters is Constitutionally Flawed, 8 Rutgers J.L. & Pub. Pol’y,
651, 652 (2011). However, it is not the function of this Court
to address those seeming excesses by distorting the analysis of
the underlying conduct. The concerns addressed by E.D.-O. and
41
others are best addressed by the Legislature and, perhaps, the
Division.
VIII.
The judgment of the Appellate Division is reversed and the
matter is remanded to the OAL for further proceedings consistent
with this opinion. We do not retain jurisdiction.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA and SOLOMON join in JUDGE CUFF’s
opinion.
42
SUPREME COURT OF NEW JERSEY
NO. A-109 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
DEPARTMENT OF CHILDREN AND
FAMILIES, DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Petitioner-Respondent,
v.
E.D.-O.,
Respondent-Appellant.
DECIDED August 20, 2015
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7