Department of Children and Families, Division of Child protection and Permanency v. E.D.-o.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3825-12T4

DEPARTMENT OF CHILDREN AND
FAMILIES, DIVISION OF CHILD
PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION

January 14, 2014
Petitioner-Respondent,
APPELLATE DIVISION
v.

E.D.-O.,

Respondent-Appellant.
________________________________________________

Telephonically argued December 18, 2013 –
Decided January 14, 2014

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Director, Division of
Child Protection and Permanency, Department
of Children and Families, Agency No. AHU 09-
0740.

Daniel N. Epstein argued the cause for
appellant (Epstein Arlen, LLC, attorneys;
Mr. Epstein, of counsel and on the brief;
Carol Matula, on the brief).

Ann Avram Huber, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Ms. Huber, on the
brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.
 In this appeal, we consider whether a nineteen-month-old

child was abused or neglected when left unattended in a motor

vehicle while her mother entered a nearby store. In affirming,

we conclude the mother failed to exercise the minimum degree of

care required by N.J.S.A. 9:6-8.21(c)(4)(b).

Appellant E.D.-O. (Eleanor, a fictitious name) acknowledges

that late in the morning of May 6, 2009, she: parked her car

approximately 150 feet from the front door of a Dollar Tree

store in South Plainfield; left her sleeping nineteen-month-old

child belted into her car seat in the vehicle; and kept the

engine running and the doors locked with windows opened

approximately one inch while she entered the store. Five to ten

minutes later, Eleanor exited the store to find, by her car,

police officers called by a mall security guard, who had

observed the unattended child. Eleanor was arrested, charged

with child endangerment and released on her own recognizance.1

The Division of Youth and Family Services, now known as the

Division of Child Protection and Permanency (the Division),

immediately investigated and a Division representative spoke

with Eleanor the same afternoon. Eleanor was tearful and

remorseful; she was described by her husband as a "good and

1
The record does not disclose the results of the criminal
charges.

2 A-3825-12T4
caring mother." All their children,2 as the Division then

learned, were appropriately dressed, current on their

immunizations, and covered by health insurance. Two of the

older three children3 said their mother, who was not employed

outside the home, had never left them alone. The home was well

cared for and free of safety hazards. Consequently, the

Division's concern was essentially limited to the incident in

question, which was substantiated, thereby requiring Eleanor's

inclusion in the child abuse registry pursuant to N.J.A.C. 9:6-

8.11. A family safety plan was implemented.

Two weeks later, the Division filed a Title Nine action,

seeking care and custody of all four children. On September 3,

2009, the Division agreed the family was in no further need of

intervention, and the action was consensually dismissed.

Eleanor filed an unsuccessful administrative appeal and now

appeals the Director's final agency decision, arguing she was

entitled to an evidentiary hearing and claiming the Director's

determination was legally insufficient.

2
The child in question was the youngest of four, the others were
born in 1999, 2002 and 2004.
3
One child was too bashful to speak to the Division
representative. The nineteen-month-old child was described as
"non-verbal."

3 A-3825-12T4
 We find no error in the Director's rejection of Eleanor's

request for an evidentiary hearing. Although controversies

based on N.J.S.A. 9:6-8.21(c)(4)(b) have generally been referred

to as "quite fact sensitive," N.J. Div. of Youth & Family Servs.

v. S.N.W., 428 N.J. Super. 247, 253 (App. Div. 2012), the

material facts we described at the outset were not disputed, and

the Director properly applied the procedure outlined in N.J.A.C.

1:1-12.5(b), which tracks Rule 4:46-2(c)'s method for summarily

resolving factually undisputed civil actions. See E.S. v. Div.

of Med. Assistance Health Servs., 412 N.J. Super. 340, 350 (App.

Div. 2010).

This appeal presents only a legal question: whether the

material facts support a finding of abuse or neglect. That

question is governed by N.J.S.A. 9:6-8.21(c)(4), which states

that an "abused or neglected child" means a child 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[.]

The Legislature provided no further clarity as to the reach

of the phrase "minimum degree of care," but our Supreme Court

4 A-3825-12T4
ascertained it means "grossly or wantonly negligent, but not

necessarily intentional" conduct. G.S. v. Dep't of Human

Servs., 157 N.J. 161, 178 (1999). In that sense, a parent fails

to exercise a minimum degree of care when "aware of the dangers

inherent in a situation," the parent "fails adequately to

supervise the child or recklessly creates a risk of serious

injury to that child." Id. at 181. The parent is held to what

"an ordinary reasonable person would understand" in considering

whether a situation "poses dangerous risks" and whether the

parent acted "without regard for the potentially serious

consequences." Id. at 179.

More recently, the Court reaffirmed that its "'cautionary

act' language . . . is informed by" G.S.'s "grossly negligent or

reckless standard," but further explained that "every failure to

perform a cautionary act is not abuse or neglect"; that is,

"[w]hen the failure to perform a cautionary act is merely

negligent, it does not trigger" the statute. N.J. Div. of Youth

& Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011); see also

S.N.W., supra, 428 N.J. Super. at 254. The focus on the

parent's level of culpability in assessing whether a minimum

degree of care has been exercised

is in synchronicity with the Legislature's
expressed purpose to safeguard children.
Indeed, where a parent or guardian acts in a
grossly negligent or reckless manner, that

5 A-3825-12T4
 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.

[T.B., supra, 207 N.J. at 307.]

This standard is best appreciated by specific examples contained

in our case law, as the T.B. Court instructed in expressly

referring to two of our prior decisions – N.J. Div. of Youth &

Family Servs. v. A.R., 419 N.J. Super. 538 (App. Div. 2011) and

N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159

(App. Div. 2009). The facts in T.B. further illustrate the

statute's meaning.

In A.R., we found a parent to have been grossly negligent

when he placed a ten-month-old child on a twin bed without rails

next to a radiator and then closed the door behind him,

concluding that "'an ordinary reasonable person' would

understand the perilous situation in which the child was

placed." 419 N.J. Super. at 545-46. A different outcome was

warranted in J.L., where the mother of three- and five-year-old

sons permitted them to "return home alone" while she remained in

a nearby outdoor play area, because she had trained the boys to

leave ajar the door, which was equipped with a child-proof

cover, if they entered the home without her; on the occasion in

question, the door accidently closed behind the boys, thereby

6 A-3825-12T4
locking them in and prompting one of the boys to call 9-1-1.

410 N.J. Super. at 161-62. Although the mother was "arguably

inattentive or even negligent," we held the facts did not meet

the statutory standard. Id. at 168. And, in T.B., the Court

found the statutory standard was not violated when a mother, who

resided with her four-year-old child in a separate apartment but

in the same structure as her parents, assumed her parents were

home and mistakenly left the sleeping child home alone. 207

N.J. at 296-97. The Court held that "[the mother's] failure to

perform the cautionary act of calling upstairs to assure [the

grand]mother's presence was clearly negligent[,] [but] [u]nder

all of the circumstances known to her[4] . . ., it did not rise to

the level of gross negligence or recklessness." Id. at 310.5

4
The record in T.B. reveals the mother's assumption that her
mother and stepfather were home was not merely the product of
supposition but based on the work schedules and routine patterns
of all three adults. The details are fully explored in the
Supreme Court's opinion and need not be repeated here. 207 N.J.
at 296-98.
5
The child in A.R. was severely burned, 419 N.J. Super. at 541,
whereas the children in J.L. and T.B. were unharmed by their
parents' neglect, although the potential for harm in the latter
case was great because the four-year-old child woke and, not
finding his mother home, crossed the street to a neighbor's
home, T.B., supra, 207 N.J. at 297. The actual consequences did
not in those cases, however, govern the result because the
statute does not require that a court "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); see also N.J. Dep't of Children & Families v. A.L., 213
(continued)

7 A-3825-12T4
 These cases illustrate what T.B. referred to as a

"continuum between actions that are grossly negligent and those

that are merely negligent." Id. at 309. In applying that

framework, we consider the analogous yet somewhat different

circumstance of leaving a child alone in a motor vehicle –

analogous because the circumstance involves a young child being

left alone but different because the child was not only left

alone in public but in a motor vehicle, a circumstance that

compounded the risks.

Such events are apparently not as uncommon as might be

hoped; the parties have cited no less than six fairly recent

unreported decisions of this court dealing with young children

left unattended in motor vehicles. Although 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 Eleanor's neglect in

(continued)
N.J. 1, 23 (2013); N.J. Div. of Youth & Family Servs. v. V.T.,
423 N.J. Super. 320, 330 (App. Div. 2011). Indeed, the
abuse/neglect finding often arises because of a legitimate and
reasonable inference – stemming from the act or omission in
question – that "the child is subject to future danger." T.B.,
supra, 207 N.J. at 307 (emphasis added). We need look no
further than the statute itself to conclude that abuse or
neglect has occurred when a child's "physical, mental, or
emotional condition . . . 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." N.J.S.A. 9:6-
8.21(c)(4)(b) (emphasis added).

8 A-3825-12T4
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).6 As we have

6
Many states have criminalized the same conduct, although without
any uniformity in approach. See Cal. Veh. Code § 15620(a)(2)
(making punishable by fine the leaving of an unattended child
under six years of age in a motor vehicle "[w]hen the vehicle's
engine is running or the vehicle's keys are in the ignition, or
both"); Fla. Stat. § 316.6135(1) (making it a misdemeanor to
leave an unattended child under six years of age in a motor
vehicle "in excess of 15 minutes" or "[f]or any period of time
if the motor of the vehicle is running"); Haw. Rev. Stat. §
291C-121.5 (makes unlawful the leaving of an unattended child
under nine years of age in a motor vehicle "for five minutes or
longer"); 720 Ill. Comp. Stat. § 5/12C-5 (defining child
endangerment as including knowingly leaving an unattended child
six years of age or younger "in a motor vehicle for more than 10
minutes"); La. Rev. Stat. Ann. § 32:295.3 (making punishable by
fine or imprisonment not to exceed six months leaving an
unattended child under six years of age in a motor vehicle when
the operator "is more than ten feet from the vehicle and unable
to continuously observe the child"); Md. Code Ann., Fam. Law §
5-801 (making it a misdemeanor to leave an unattended child in a
motor vehicle if the "motor vehicle is out of the sight of the
person charged"); Mich. Comp. Laws § 750.135(a) (making it a
misdemeanor if a child under six years of age is unharmed when
left "unattended in a vehicle for a period of time that poses an
unreasonable risk of harm or injury," and a felony if serious
physical harm or death is caused); Nev. Rev. Stat. § 202.575
(making it a misdemeanor to leave an unattended child seven
years old or younger in a motor vehicle if "[t]he conditions
present a significant risk to the health and safety of the
child" or "[t]he engine of the motor vehicle is running or the
keys to the vehicle are in the ignition"); Okla. Stat. tit. 47,
§ 11-1119 (making it a misdemeanor to leave a child six years
old or younger "unattended in a motor vehicle if the conditions,
including, but not limited to, extreme weather, inadequate
ventilation, or hazardous or malfunctioning components within
the vehicle present a risk to the health or safety of the
(continued)

9 A-3825-12T4
observed, the standard we must apply is whether "an ordinary

reasonable person," G.S., supra, 157 N.J. at 179, would

recognize the peril. We have no hesitation in answering that

question in the affirmative. 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. Eleanor recognized the danger when she felt it

necessary to lock the vehicle's doors and lower both front

(continued)
unattended child"); 75 Pa. Con. Stat. § 3701.1 (making it a
"summary offense" to leave a child under six years of age
unattended when the motor vehicle "is out of the person's sight
and under circumstances which endanger the health, safety or
welfare of the child"); Tenn. Code Ann. § 55-10-803 (making it a
misdemeanor to leave a child seven years old or younger "in a
motor vehicle located on public property or while on . . .
premises . . . generally frequented by the public at large
without being supervised . . . if (1) The conditions present a
risk to the child's health or safety; (2) The engine of the
motor vehicle is running; or (3) The keys to the motor vehicle
are located anywhere inside the passenger compartment of the
vehicle"); Utah Code Ann. § 76-10-2202 (making it a misdemeanor
for a person to "intentionally, recklessly, knowingly, or with
criminal negligence" leave a child under nine years of age
unattended in a motor vehicle if the vehicle is on public
property or private property open to the public and "the
conditions present a risk to the child of: (i) hyperthermia;
(ii) hypothermia; or (iii) dehydration"); Wash. Rev. Code §
46.61.685 (making it a misdemeanor to leave a child under the
age of sixteen unattended in a motor vehicle "with its motor
running"). Two states impose criminal sanctions on day care or
child care providers who leave children unattended in motor
vehicles. See Ala. Code § 13A-11-290; Wis. Stat. § 948.53.

10 A-3825-12T4
windows by an inch.7 In fact, she repeated in her appellate

brief what she stated to the Division caseworker at the time:

"she now knew that what she did was wrong."

7
The dangers include but are not limited to the possibilities of
car theft or kidnapping. And the risk is by no means alleviated
when the vehicle's engine is turned off; on a hot day, the
temperature inside a motor vehicle can quickly spike to
dangerously high levels, just as it may rapidly and
precipitously dip on a cold night. Not long ago a sister
state's legislature made the following findings regarding
unattended children in motor vehicles:

[L]eaving a child unattended in a car can
too often have tragic consequences, either
because the child suffers from exposure to
excessive heat, is injured when the car is
stolen, or releases the emergency brake,
inadvertently starts the car, or puts the
car in gear. On average, thirty-six children
per year across the country die in hot
vehicles. About forty per cent of those
deaths occur when caregivers forget that
children are in the car. About twenty per
cent of children who die are intentionally
left in vehicles by caregivers who do not
know any better.

[W]ith an outside temperature of approx-
imately eighty-five degrees, the inside air
temperature in a car will reach one hundred-
thirty degrees or more. Under those
conditions, a small child, whose body
temperature increases three to five times
faster than an adult's, can succumb to the
heat in as short a time as fifteen minutes.
External temperatures as low as sixty-six
degrees can be fatal. As a result, the
five-minute trip to the bank that ends up
taking a half-hour can be deadly.

[2008 Haw. Sess. Laws, c. 170, § 1.]

11 A-3825-12T4
 In drawing this conclusion, 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-

8.21(c)(4)(b). For example, Eleanor greatly relies on an

unreported decision involving a mother, whose husband was out of

town and unavailable, leaving a sick and sleeping two-year-old

in a locked and warm vehicle for approximately ten minutes to

enter a store to purchase medicine for the child. In that case,

we found the circumstances militated against finding the mother

grossly negligent. Even were we to assume such conduct would

fall short of the statutory requirements – a question we need

not decide – the child here was not sick, Eleanor was only

purchasing items for a party, and other adults were available to

watch the child at home while Eleanor ran her errand. There

being an absence of any extenuating circumstances, we conclude

the Director reasonably found Eleanor's conduct was grossly

negligent.8

8
Eleanor strenuously argues the type of neighborhood – she claims
the Middlesex Mall in South Plainfield, where this incident
occurred, is "upscale" – is highly relevant in ascertaining the
degree of her negligence. In assuming only for present purposes
the accuracy of Eleanor's description of the Middlesex Mall, we
disagree with the point she urges. Although it may be fair to
conclude that leaving a child unattended in a high crime area
would constitute a risky undertaking, the risk is not
substantially reduced when the conduct occurs in less crime-
ridden locales. Even the most upscale of neighborhoods and
(continued)

12 A-3825-12T4
 Affirmed.

(continued)
shopping centers are troubled by crime. Moreover, as we have
endeavored to explain, the risk to the child is not limited to
exposure to criminality; the health risks of leaving a young
child in an unattended motor vehicle no doubt produce more
deaths or greater injuries than those caused by criminals.

13 A-3825-12T4