RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2605-12T4

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, APPROVED FOR PUBLICATION

Petitioner-Respondent, June 9, 2014

v. APPELLATE DIVISION

R.R.,

Respondent-Appellant.

________________________________________

Submitted June 3, 2014 – Decided June 9, 2014

Before Judges Fisher, Koblitz and O'Connor.

On appeal from the New Jersey Department of Children and Families, Docket No. AHU 11- 1411.

Mellk O'Neill, attorneys for appellant (Arnold M. Mellk, of counsel; Gidian R. Mellk and Edward A. Cridge, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer Hoff, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

O'CONNOR, J.S.C., (temporarily assigned). On July 12, 2011, R.R., a school bus driver for the West

Windsor-Plainsboro Board of Education, failed to inspect the bus

at the conclusion of her route to determine if any children were

still on board. When R.R. exited the bus for the day, she left

behind five-year-old C.S., who was alone for almost an hour

before he was discovered. The Institutional Abuse Investigation

Unit (IAIU) of the Department of Children and Families (DCF)

substantiated that R.R. committed an act of neglect in violation

of N.J.S.A. 9:6-8.21(c)(4)(b). R.R. appealed the IAIU's

finding, which was ultimately affirmed by the DCF's Assistant

Commissioner of the Office of Performance Management and

Accountability (Commissioner). We affirm.

I

Following the IAIU finding that R.R. committed an act of

neglect, the Criminal History Review Unit of the Department of

Education (Department) suspended R.R.'s school bus "S"

endorsement on her driver's license for six months. R.R.

appealed both the IAIU finding of neglect and the Department's

decision to suspend the "S" endorsement on her driver's license

to the Office of Administrative Law.

The Administrative Law Judge (ALJ) who heard the appeal of

the decision to suspend the "S" endorsement found the following

facts. The route R.R. took on July 12, 2011 was not her usual

2 A-2605-12T4 one. She had, however, worked with the bus aide assigned to the

route in the past; in fact R.R. had previously complained to a

supervisor that the aide was inattentive, frequently making

cellular telephone calls and sending text messages while

children were on the bus. On the day of the incident, R.R.

noticed the aide sending text messages while the children were

being transported, and that she sat in the front instead of the

middle or back of the bus, where aides are required to sit to

better observe the children.

When R.R. reached C.S.'s home, she stopped the bus and

honked the horn. When an adult did not emerge, the aide told

R.R. that C.S. had not taken the bus that day. R.R. pulled away

and, after completing the route, returned to the bus parking lot

and dropped the aide off at her car. Before the aide got off

the bus, she reported that there were no children remaining.

Although R.R. also had an obligation to visually inspect the bus

at the end of a route to see if any children remained on board,

see N.J.S.A. 18A:39-28, she did not do so.

Within an hour of R.R. exiting the bus for the day, C.S.'s

mother contacted the school and reported that her son had not

arrived home. A staff person checked the bus and discovered

C.S. asleep in his seat, still buckled-in by a seat belt. The

child had been alone for a total of fifty-five minutes. R.R.

3 A-2605-12T4 admitted she did not check the vehicle before getting off,

explaining she had relied on the aide's representation that no

children remained on the bus after they reached the parking lot.

The ALJ affirmed the Department's decision to suspend the

"S" endorsement on R.R.'s license for six months, observing that

N.J.S.A. 18A:39-28 requires a school bus driver to visually

inspect the bus at the end of a transportation route to

determine if any pupils are still on board. The ALJ also noted

N.J.S.A. 18A:39-29 mandates a six month suspension of a school

bus driver's endorsement if a driver has left a pupil on a

school bus at the end of the driver's route. The ALJ concluded

that, apart from the fact R.R. had a statutory obligation to

make her own visual inspection of the bus at the end of her

route, her reliance on the aide's report that there were no

children left on board was unreasonable, given R.R.'s knowledge

the aide was inattentive both in the past and on the day of the

incident.

The ALJ filed her Initial Decision with the Acting

Commissioner of the Department, who adopted the court's

decision. R.R. did not appeal that decision.

Thereafter, another Administrative Law Judge heard the

appeal of the IAIU finding that R.R. had committed an act of

neglect under N.J.S.A. 9.6-8.21(c)(4)(b). The parties

4 A-2605-12T4 stipulated to the factual findings made by the first ALJ. The

parties also stipulated the highest temperature on the day of

the incident was ninety-five degrees. As no material facts were

in dispute, both R.R. and the DCF filed motions for summary

judgment. The second ALJ granted R.R.'s and denied the DCF's

motion for summary judgment, finding R.R. had not abused or

neglected C.S. as defined by N.J.S.A. 9.6-8.21(c)(4)(b), which,

he observed, requires a finding of "grossly or wantonly

negligent" and not merely negligent conduct.

Specifically, the second ALJ concluded it was reasonable

for R.R. to assume C.S. was not on the bus when no one emerged

from his home after she honked the horn, a conclusion that was

then reinforced when the aide commented the child had not taken

the bus that day. While R.R. harbored doubts about the aide's

attentiveness and reliability, the second ALJ opined it was

nonetheless reasonable for her to conclude the aide's

observations were accurate when in fact no adult met the child

at the stop.

The second ALJ dismissed the substantiation of neglect, and

filed his Initial Decision with the Commissioner. The

Commissioner rejected the second ALJ's recommendation and issued

a Final Decision affirming the substantiation of neglect, and

5 A-2605-12T4 ordered that R.R.'s name be placed on the Child Abuse Registry,

pursuant to N.J.S.A. 9:6-8.11.

The Commissioner found R.R. had engaged in wilful and

wanton conduct by failing to inspect the bus personally at the

end of the route, relying instead upon an untrustworthy,

unreliable aide's representation no children remained on board.

She further found R.R.'s assumption the child was not on the bus

because no one greeted him at his stop flawed, as R.R. was

unfamiliar with the route and unaware whether it was customary

for an adult to meet C.S. when he got off the bus. The

Commissioner also noted R.R. should have considered that the

child's caretaker may have been briefly detained inside of the

home, rather than assume the child was not on the bus.

II

Under N.J.S.A. 9:6-8.21(c)(4)(b), an "abused or neglected

child" means an individual under the age of eighteen years

whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]

Our Supreme Court has defined "minimum degree of care" as

"grossly or wantonly negligent" conduct. G.S. v. Dep't of Human

6 A-2605-12T4 Servs.,

(1999). A parent or guardian "fails

to exercise a minimum degree of care when [the guardian] is

aware of the dangers inherent in a situation," but "fails

adequately to supervise the child or recklessly creates a risk

of serious injury to that child."

. "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."

. A parent or

guardian is held to what "an ordinary reasonable person would

understand" in considering whether a situation "poses dangerous

risks" and whether the guardian acted "without regard for the

potentially serious consequences."

.

Actual harm need not befall a child for there to be a

violation of N.J.S.A. 9:6-8.21(c)(4)(b). See In re Guardianship

of D.M.H.,

(1999); see also N.J. Dep't of

Children & Families v. A.L.,

(2013); N.J. Div. of

Youth & Family Servs. v. V.T.,

(App.

Div. 2011). Abuse or neglect can occur 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). "[An] abuse/neglect finding often

arises because of a legitimate and reasonable inference —

7 A-2605-12T4 stemming from the act or omission in question — that 'the child

is subject to future danger.'" Dep't of Children & Families v.

E.D.-O.,

, 159 n.5 (App. Div. 2014) (quoting

N.J. Div. of Youth & Family Servs. v. T.B.,

(2011)). "[W]here 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."

.

We recently determined that a parent who left her nineteen-

month-old child unattended in a vehicle while the parent went

into a store 150 feet away failed to exercise the minimum degree

of care required by N.J.S.A. 9:6-8.21(c)(4)(b). E.D.-O., supra,

. Of concern was not only that the child

had been left alone but, "compounding the risks," had been left

alone in public and in a motor vehicle.

. We

concluded a young child is exposed to "substantial peril" when

left alone in a vehicle out of a parent's sight, "no matter how

briefly."

.

While the child in E.D.-O was younger than C.S. and the

engine was running, we do not discern any appreciable difference

between the extent of neglect that occurred in E.D.-O and here.

In both instances, a young, helpless child was left alone in a

vehicle parked in a lot to which the public had access. Here,

8 A-2605-12T4 there was the added element the temperature reached ninety-five

degrees on the day of the incident. Although fortuitously R.R.

had left the windows open on the bus before she left, given the

high temperatures the bus was very likely uncomfortably hot.

There is also the component that, in violation of a

statutory duty, R.R. had not even bothered to investigate

whether a child was still on the bus before she left for the

day. Her reliance upon the aide does not salvage her poor

judgment in light of R.R.'s knowledge the aide had been derelict

in her duties in the past, including on the day of the incident,

as evidenced by the aide's failure to properly position herself

on the bus where she could observe the students, and by her

preoccupation with sending text messages.

Appellate review of a final decision of a State

administrative agency is limited; we are obligated to "'defer to

an agency's expertise and superior knowledge of a particular

field.'"

-02 (citing Greenwood v.

State Police Training Ctr.,

(1992)). "Thus,

we are bound to uphold an agency's decision 'unless there is a

clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record.'"

(citing In

re Herrmann,

(2007)). We are satisfied the

Commissioner's conclusion R.R. violated N.J.S.A. 9:6-

9 A-2605-12T4 8.21(c)(4)(b) was not arbitrary, capricious, or unreasonable; in

fact, her decision is amply supported by the record.

Affirmed.

10 A-2605-12T4