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 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.
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, 52 A.3d 200 (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, 990 A.2d 701 (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 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, 723 A.2d 612 (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, 723 A.2d 612. 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, 723 A.2d 612.
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, 24 A.3d 290 (2011); see also S.N.W., supra, 428 N.J.Super. at 254, 52 A.3d 200. 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 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, 24 A.3d 290.]
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, 17 A.3d 850 (App.Div.2011) and N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J.Super. 159, 980 A.2d 488 (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, 17 A.3d 850. 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 locking them in and prompting one of the boys to call 9-1-1. 410 N.J.Super. at 161-62, 980 A.2d 488. Although the mother was "arguably inattentive or even negligent," we held the facts did not meet the statutory standard. Id. at 168, 980 A.2d 488. 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, 24 A.3d 290. 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, 24 A.3d 290.5
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, 24 A.3d 290. 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 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 observed, the standard we must apply is whether "an ordinary reasonable person," G.S., supra, 157 N.J. at 179, 723 A.2d 612, 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 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."
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
Affirmed.
