In the spring of 2007, Susan and her four-year-old son John lived with Susan’s mother, Mary, and step-father, Jim, in Atlantic Highlands.   DYFS v. T.B., ___ N.J. ___ (2011).  (We will use the same fictitious names for the family members as the Supreme Court did in its opinion.)  Susan and John lived downstairs in a space that had its own bedrooms, bathroom, kitchen, and other living areas.  John had access to the entire house and moved freely upstairs to where his grandparents lived.  Mary and Jim helped Susan care for John because Susan had a very busy work and education schedule.

On Sunday, March 25, 2007, Susan and John visited family and returned home between 7:00 and 7:30 p.m.  John fell asleep in the car and Susan immediately put him to bed.  Susan saw Mary’s car in the driveway and thought that her mother was asleep upstairs because Mary had been ill recently and she was “always home” and “in bed early” on Sunday nights in order to be ready for work on Monday morning.  Assuming Mary was home, Susan went out to dinner with a friend.  However, Mary was not home, as she and Jim had made an impromptu decision to go to New York.

John woke up and realized he was alone shortly after 9:00 p.m.  He exited the house and crossed the street, which was a 25-mile-per-hour residential street, and told a neighbor he could not find his mother.  That neighbor contacted a policeman who lived nearby.  After no one answered at Susan’s house, the policeman contacted the Atlantic Highlands Police Department.  The responding officer interviewed John, who was upset and wanted his mother.  The police entered the home and discovered that no one was there.

Susan returned home between 9:30 and 10:00 p.m.  After the police told her what happened, Susan got upset and cried.  Eventually Susan explained to the police what had happened and that she we went out because she assumed her mother was home.  Mary and Jim confirmed Susan’s version of what had happened.  The police did not file criminal charges and turned the matter over to the Division of Youth and Family Services (“DYFS”).

After an investigation, the DYFS caseworker found that no safety intervention was necessary and that there were no negative issues apart from the subject incident.  However, DYFS substantiated a neglect allegation against Susan.  Susan challenged that finding with the Office of Administrative Law.  Following a hearing, the Administrative Law Judge recommended that, even though Susan had made an unfortunate mistake, the charges against her should be dismissed.  The DYFS Director disagreed and reinstated the finding against Susan of child neglect.  Susan appealed the Director’s decision but the Appellate Division affirmed, concluding that Susan had placed John at substantial risk of harm.

The Supreme Court reversed.  As an initial matter, the Court described the deference it must pay to an administrative agency’s determination and it outlined well-established principles of statutory interpretation.  The Court then turned to the provision at issue, N.J.S.A. 9:6-8.21(c)(4)(b), which defines an “abused or neglected child” as follows:  “a child 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, as herein defined, 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.” (emphasis added)

Because the focus of the appeal was the “minimum degree of care” language was the disputed issue, the Court proceeded to review G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161 (1999), in which it had ruled that the phrase meant “conduct that is grossly or wantonly negligent, but not necessarily intentional.”  The Court pointed out that the Legislature had never amended the governing statute following its decision in G.S., which it took to mean that the Legislature agreed with its interpretation.

After analyzing relevant caselaw, the Court conceded that the determination of whether particular conduct is negligent, grossly negligent, or reckless can be difficult and that it is always a very fact-sensitive decision.  Recognizing that this was a “close case,” the Court concluded that even though Susan was negligent, she was not grossly negligent or reckless.

The Court elaborated:  “This is not a situation in which she left her four-year-old son at home alone knowing there was no adult supervision.  Instead, Susan, 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.  In addition, she knew her mother had been ill all week with the flu.  Further, her mother and step-father both attested to their weekly Sunday routine: that  Susan’s mother is always home on Sunday nights and that the trip to New York was unexpected.  Ordinarily, Susan’s mother would remain home alone, with her car in the driveway while the step-father went to work.  What occurred on the date in question was totally out of the ordinary.  To be sure, Susan’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.”