                         RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4594-12T4

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

                                                   May 2, 2014
      Petitioner-Respondent,
                                                APPELLATE DIVISION
v.

G.R.,

     Respondent-Appellant.
___________________________________

            Argued April 9, 2014 – Decided May 2, 2014

            Before Judges Fuentes, Fasciale and Haas.

            On appeal from the Department of Children
            and Families, Division of Child Protection
            and Permanency, Docket No. AHU-08-0191.

            Kevin T.     Conway   argued    the        cause   for
            appellant.

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

      The opinion of the court was delivered by

FASCIALE, J.A.D.

      G.R. appeals from an April 12, 2013 final agency decision

by   the   Director   (the   "Director")   of    the    Division     of   Child
Protection and Permanency (the "Division") summarily concluding

that G.R. neglected her two-year-old son by failing to exercise

a   minimum     degree   of   care    as        required    by     N.J.S.A.     9:6-

8.21c(4)(b).      The    Division    took    approximately         five   years    to

resolve G.R.'s administrative appeal and place her name on the

child abuse registry (the "Registry").                 Although G.R. timely

disputed the Division's initial substantiation of neglect, she

lived   with    the   uncertainty    of    the    outcome    of     her   challenge

during the entire five years.         This substantial delay was caused

by agency inaction and the inadvertent misplacement of G.R.'s

file by a Deputy Attorney General (DAG).                    We reverse without

prejudice, remand, and direct the Office of Administrative Law

(OAL) to conduct a hearing to resolve disputed material issues

of fact and to address G.R.'s contention that the case should be

dismissed as a matter of fundamental fairness.

                                     I.

     G.R.     acknowledges    that   on    the    afternoon       of   December   6,

2007, she left her son unattended in her minivan in a mall

parking   lot    while   shopping     in    a    Target     store      (hereinafter

referred to as "the incident").             The parties dispute where G.R.

parked, what path she took to enter the store, and the length of

time she was away from her vehicle.                  G.R. contends that she

parked twenty feet from a side entrance to the store, left her




                                       2                                   A-4594-12T4
son in the minivan appropriately dressed and sleeping, ensured

that he was properly secured in his car seat, turned off the

engine, locked the vehicle, and returned as soon as five minutes

later.    Although the record is unclear about what G.R. planned

to buy from Target, a Division caseworker later noted that G.R.

"grabbed the few things that [G.R.] needed."                        As she returned to

the    minivan,       a    police        officer   issued      her     a     summons     for

endangering the welfare of her child.1

       Six days later, on December 12, 2007, the police referred

the    matter    to       the   Division.          At    midnight      that     night,     a

caseworker arrived at G.R.'s home and verified with G.R. that

the incident occurred.              The caseworker observed that the house

appeared to be clean and organized, and that the two-year-old

and G.R.'s two other children (then eight and ten years old)

were   healthy,        clean,      and    sleeping      in   their    bedrooms.          The

caseworker      left      G.R.'s    home     satisfied       that    there    were     "[n]o

signs of abuse or neglect."

       On December 17, 2007, the caseworker returned to the home

and talked to G.R., her husband, and the two oldest children.

G.R. and her husband acknowledged the incident, signed a case

plan agreeing that G.R. would attend parenting skills classes


1
  The record does not reveal the disposition of the criminal
charges.



                                              3                                  A-4594-12T4
with   a   licensed     social    worker,      and    agreed    to    refrain      from

leaving their children unattended in a vehicle.                       Nevertheless,

on   the   basis   of   the   incident,       the    caseworker      stated   in    her

investigation       summary      that    "[a]llegations         of    neglect       are

substantiated."

       On January 28, 2008, the Division notified G.R. in writing

that she neglected her son by leaving him unattended in the

minivan, stating in pertinent part that

            the   Division   is   required   to   send   to
            local/State    police    certain    identifying
            information    regarding   all   substantiated
            incidents of child abuse and neglect in
            their jurisdiction.

            In addition, N.J.S.A. 9:6-8.10a authorizes
            the     Division     to    identify    confirmed
            perpetrators of child abuse or neglect to
            agencies, persons, or entities who are
            mandated    by    statute   to   consider   such
            information     when    conducting    background
            screenings      of    employees,     prospective
            employees,     interns,    or   volunteers   who
            provide, or seek to provide, services to
            children.        For   certain   employment,   a
            substantiation of child abuse or neglect
            will prevent you from getting or keeping a
            job.[2]

The Division informed G.R. that she had the right to appeal from

its initial determination and to request an OAL hearing.                              On

February    8,     2008,   G.R.'s       counsel      wrote     to    the   Division,

2
  G.R.'s counsel reported to us at oral argument that G.R. has
been employed as a school librarian.




                                          4                                   A-4594-12T4
requested a hearing, and demanded discovery of the Division's

file materials.

       In March 2008, the social worker who had conducted four

parenting classes with G.R. notified the Division that she did

not feel that G.R. was a risk to her children "in any way," and

stated that the incident was "clearly a cultural difference."3

The Division obtained reports from the children's pediatrician,

a school nurse, and G.R.'s local police department, all showing

that G.R. was a          good and caring parent.              As a result, the

Division concluded that the children were safe, and it did not

initiate a Title Nine action.          On appeal, it is uncontested that

the incident amounted to a one-time event and that G.R. was

otherwise an attentive parent.

       On   April   2,   2008,   the   Division      closed       its   file.     The

caseworker completed a Case Closing Checklist indicating that

G.R.   fully    complied     with   the       case   plan    by    completing     the

parenting     sessions,     specifically        noting      the   social   worker's

opinions that G.R. was "great with her children" and that the

incident was the result of a "cultural clash."                      The caseworker

also wrote in her case summary that "[m]om was very happy to

hear that the case was being closed."

3
  G.R. had recently immigrated to the United States from Germany,
and she contended that in her former country it was not unusual
to leave one's child unattended in a vehicle for a short time.



                                          5                                 A-4594-12T4
    On      May     1,    2008,      an    Appeals    Administrator       from     the

Department of Children and Families (the "Department") wrote to

G.R. stating that the Department's Administrative Hearings Unit

(AHU)   had    received        her   request    for   a    hearing.    The   Appeals

Administrator indicated in part that

              due to the volume of requests for appeals,
              it will take at least several months before
              the OAL will be able to hear your matter.
              You will be provided with information about
              your case during the discovery phase of the
              OAL hearing process.

              [(Emphasis added).]

One year and eight months later, on December 23, 2009, G.R.'s

counsel wrote to the DAG to follow up on G.R's administrative

appeal and reiterated G.R.'s request for a hearing.4                           G.R.'s

counsel acknowledged that the DAG might be inclined to file a

motion for summary disposition, but stated that such a motion

would be "premature as no facts have yet been elicited at a

hearing."         The    DAG   did   not   respond    to    G.R.'s    December   2009

letter until two years and eight months later.                          Finally, on

August 27, 2012, the DAG provided the requested discovery and,

to her credit, indicated that she had misplaced the file.                          The

OAL failed to schedule a hearing in the interim and the AHU did

not provide G.R. with any information about her appeal.

4
  G.R.'s counsel referenced various prior emails in his letter,
but those emails are not a part of the record.



                                            6                                A-4594-12T4
    In January 2013, more than five years after the incident,

the Division filed a motion for summary disposition pursuant to

N.J.A.C. 10:120A-4.2.      G.R. filed opposition contending that the

motion was untimely and that there were disputed material facts

requiring   a   hearing.      G.R.'s   counsel   insisted   that   G.R.    be

afforded the opportunity to cross-examine the police officer,

police   dispatcher,    and    Division    caseworker.      However,      the

Director granted the Division's motion to proceed summarily and

affirmed the substantiation of neglect.           In part, the Division

stated that

            the    competent evidence   in   the  record
            established that [the child] was left alone
            in the vehicle for at least [twenty-five]
            minutes. . . .    The DAG [herself] observed
            that, as Target is located on the fourth
            level of the mall, it would be virtually
            impossible for G.R. to enter the mall, go to
            the fourth level, shop and pay for her
            items, exit and return to [the minivan]
            within five to ten minutes [as contended by
            G.R.5]

The Director adopted the DAG's observation and found that "[i]t

is inconceivable that G.R. could enter the mall, . . . and at

all times observe the [minivan] without any obstruction."                 The

Director concluded that G.R. neglected the child pursuant to




5
  On appeal to us, the Division now concedes that Target has a
side entrance accessible from the parking lot at ground level.



                                       7                           A-4594-12T4
N.J.S.A. 9:6-8.21c(4)(b) and ordered that G.R.'s name be listed

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

    On    appeal,      G.R.    argues    that       (1)    the    matter       should   be

dismissed in the interests of justice because of the excessive

delay between the incident and the                   DAG's motion for summary

disposition; (2) the Director erred by granting the Division's

motion because there existed disputed material issues of fact

requiring a hearing; and (3) the incident does not constitute

neglect     under   N.J.S.A.       9:6-8.21c(4)(b).                Because       we     are

remanding for further proceedings, we need not resolve G.R.'s

contention that there was insufficient evidence for the Division

to substantiate neglect.

                                        II.

    We      conclude    that     the    Director          erred    by     granting      the

Division's     motion   to     proceed     summarily        and    determining        that

there existed no disputed material facts.                        Motions for summary

disposition    of   disputes      before      the    Director       are    governed      in

general   by   N.J.A.C.       10:120A-4.2,      which      provides       in   pertinent

part that

            (b) The Director of Legal Affairs or
            designee,    in    consultation    with    a
            representative of the Attorney General's
            Office, shall determine whether to proceed
            with a Motion for Summary Disposition, based
            on whether or not there are material facts
            in dispute.




                                         8                                       A-4594-12T4
              1. When the Director of Legal Affairs or
              designee and the representative of the
              Attorney   General's  Office   determine   to
              proceed   with    a   Motion   for    Summary
              Disposition because no material facts are in
              dispute, the case shall be transmitted to
              the Attorney General's Office for assignment
              for preparation of the Motion for Summary
              Disposition.

              [(Emphasis added).]

      Here, there existed material disputed facts that required a

hearing, including but not limited to: the length of time that

G.R. was away from the minivan; whether G.R. used the parking

lot-level entrance to Target or walked through the mall to reach

the   store;    if   she    used   the    parking   lot-level    entrance,   the

distance between where she parked and that door; whether G.R.

lost sight of the minivan while she was in the store, and if so,

for     how    long;       and     whether    there    existed     extenuating

circumstances surrounding the incident.               We make the following

remarks to guide the parties on remand.

      Pursuant       to    N.J.S.A.      9:6-8.21c(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




                                          9                            A-4594-12T4
            unreasonably inflicting or allowing to be
            inflicted harm, or substantial risk thereof.

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

proscribe "grossly or wantonly negligent" conduct that need not

be intentional for the actor to be held liable.                   G.S. v. Dep't

of Human Servs., 157 N.J. 161, 178 (1999).                 A parent "fails to

exercise a minimum degree of care when [the parent] 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."          Id. at 181.

       "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."                  Id. at 181-82.         A

finding    of    abuse   must    be   based    on   a   preponderance     of    the

"competent,      material   and    relevant     evidence."        N.J.S.A.     9:6-

8.46b.    In 2011, the Court confirmed the "grossly negligent or

reckless standard," but observed that "every failure to perform

a cautionary act is not abuse or neglect."                Dept. of Children &

Families v. T.B., 207 N.J. 294, 306-07 (2011).                Mere negligence

does not trigger the statute.          Ibid.

       In assessing whether a parent who leaves a child unattended

in a vehicle has exercised a minimum degree of care, we recently

reiterated that the focus of the potential culpability aligns

with



                                        10                               A-4594-12T4
           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.

           [Dept. of Children & Families v. E.D.-O.,
           434 N.J. Super. 154, 158 (App. Div. 2014)
           (citation omitted).]

In E.D.-O., the mother left her nineteen-month-old child secured

in a car seat in a locked and parked car with its engine running

150 feet from the store where she was shopping.                Id. at 155-56.

Affirming the Division's substantiation of neglect, we stated

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."                 Id. at 161.       Yet in

acknowledging     that   there    may    be    circumstances   that    militate

against a finding that a parent was grossly negligent, we also

remarked   that    "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-

8.21c(4)(b).    Id. at 162.

    The Division's analysis of whether a parent has committed

an act of neglect should be conducted "on a case-by-case basis."

T.B., supra, 207 N.J. at 306 (quoting G.S., supra, 157 N.J. at




                                        11                             A-4594-12T4
182).     The court or the Division should consider the totality of

the circumstances in determining whether the parent's acts were

sufficiently      negligent       to    warrant         placement      on    the   Registry.

See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.

320, 329 (App. Div. 2011).

                                            III.

    G.R.     contends       that       we   should        vacate    the      final    agency

decision    and    dismiss    the       case       in    the    interests      of    justice

because (1) the inaction by the DAG, AHU, and OAL deprived her

of administrative procedural due process; and (2) the Director's

summary     affirmance       contravened            principles          of     fundamental

fairness.        We disagree that G.R. was denied due process, but

direct     the    parties    to        address      G.R.'s      fundamental          fairness

argument on remand.

                                            A.

    G.R.     focuses    on    two       interrelated           facts    to    support      her

contention that she was denied procedural due process: the DAG

delayed filing the motion for summary disposition, and there was

never a hearing before the OAL.                         G.R.'s failure to exercise

available    judicial       remedies,        however,          militates      against      her

claim that the she was deprived of procedural due process.

    It is undisputed that the OAL failed to schedule a hearing,

and that the AHU did not provide G.R. with information about the




                                             12                                      A-4594-12T4
status of the case or comply with N.J.A.C. 10:120A-4.2(a), which

provides:

              When the [AHU] determines that an appellant
              is ineligible for an administrative hearing
              because of the absence of material disputed
              facts, the [AHU] recommends to the Director
              of Legal Affairs or designee that the matter
              is appropriate for a Motion for Summary
              Disposition.

We conclude, however, that G.R. could have applied to compel the

Division to schedule and conduct an OAL hearing consistent with

N.J.A.C. 10:120A-4.2(b)(2) (disallowing summary proceedings in

matters involving disputed material facts) and N.J.A.C. 10:120A-

4.3(a)(2) (requiring the AHU to transmit contested cases to the

OAL).    See Hosp. Ctr. at Orange v. Guhl, 331 N.J. Super. 322,

340 (App. Div. 2000) (indicating that "[t]he availability of . .

. expeditious judicial remed[ies] may negate any claim that a

party has been deprived of a constitutionally protected interest

as a result of agency inaction").

       The same opportunity existed regarding the delay caused by

the DAG inadvertently misplacing the file.               The DAG moved for

summary disposition more than four years after G.R. could have

reasonably expected to receive a hearing date.                 However, from

December 2009 to January 2013, a period of about three years,

G.R.    did    not   inquire     about    the   status    of   her   pending

administrative appeal.         Although N.J.A.C. 1:1-12.5 provides that




                                     13                              A-4594-12T4
motions for summary disposition "must be filed no later than

[thirty] days prior to the first scheduled [OAL] hearing date or

by such date as ordered by the [Administrative Law] judge," G.R.

failed to exercise judicial remedies that were available to her.

                                    B.

    G.R.'s fundamental fairness argument requires attention on

remand   because   the   Director   did   not   consider   the   contention

other than to state that G.R. was not prejudiced by the delay.

As Justice Patterson recently stated in State v. Miller, 216

N.J. 40, 71-72 (2013), cert. denied, ___ U.S. ___, 134 S. Ct.

1329, 188 L. Ed. 2d 339 (2014), the doctrine of fundamental

fairness

           is an integral part of due process, and is
           often extrapolated from or implied in other
           constitutional guarantees.      The doctrine
           effectuates   imperatives   that   government
           minimize arbitrary action, and is often
           employed    when   narrowed    constitutional
           standards    fall   short    of    protecting
           individual[s]       against       unjustified
           harassment, anxiety, or expense.

           Fundamental fairness is a doctrine to be
           sparingly applied.   The doctrine is applied
           in those rare cases where not to do so will
           subject   [an  individual]   to   oppression,
           harassment, or egregious deprivation.

           [(Emphasis added) (citations          and   internal
           quotation marks omitted).]

In limited circumstances, agency actions may be set aside as

fundamentally unfair where the agency failed to act within a



                                     14                            A-4594-12T4
reasonable time and the delay "evidence[d] an entire lack of

that acute appreciation of justice which should characterize a

tribunal with [such a] delicate and important duty."                         In re

Arndt,   67   N.J.    432,    436-37       (1975)   (alterations    in   original)

(citation and internal quotation marks omitted) (concluding "the

proceedings    as    a     whole    were    conducted   with   seriously    unfair

disregard" of the party's rights).

    Here, G.R. lived with the uncertainty of whether her name

would appear on the Registry for approximately five years.                       The

Registry serves an important public function by assuring that

adoption agencies, employers such as day care centers, and other

organizations       that    deal     with    children   are    apprised    of    the

harmful conduct that led a particular individual to be listed on

the Registry.        N.J. Div. of Youth & Family Servs. v. M.R., 314

N.J. Super. 390, 399-402 (App. Div. 1998).                     Yet the adverse

reputational consequences for an innocent individual listed in

the Registry can be devastating.                    See N.J. Div. of Youth &

Family Servs. v. S.S., 372 N.J. Super. 13, 27 (App. Div. 2004),

certif. denied, 182 N.J. 426 (2005).                Disclosing a name from the

Registry "'not only injure[s] [a person's] good name' but also

significantly        limits        that     person's    'capacity    to     obtain

employment in a vast array of education-related jobs.'"                    Div. of

Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 66 (App. Div.




                                            15                             A-4594-12T4
2005)      (alterations     in    original)      (citation      omitted).         And

although Registry reports are deemed confidential, they "may be

disclosed as authorized in N.J.S.A. 9:6-8.10a [listing twenty-

three    entities     entitled     to   Registry      records     upon     request],

subject to certain restrictions."               M.R., supra, 314 N.J. Super.

at 399-400.        On this record, we are unable to determine whether

G.R. suffered from unjustified anxiety or expense, or whether

the     Division's      failure   to     apply    the    fundamental       fairness

doctrine subjected her to oppression or egregious deprivation.

                                        IV.

      We     conclude      primarily     that    G.R.     is    entitled     to    an

administrative        hearing     because       the   parties      have     disputed

material facts.         On remand, G.R. may renew her contentions that

she is entitled to a dismissal based on the five-year delay or

on the grounds of fundamental fairness.                       We note that delay

alone      "will     not    generally     affect        the     validity     of    an

administrative determination, particularly where no prejudice is

shown."      In re Kallen, 92 N.J. 14, 27 (1983) (citation and

internal quotation marks omitted); see also State v. Yoskowitz,

116 N.J. 679 (1989) (remanding for the trial court to determine

if prosecution was barred by principles of fundamental fairness,

as the record was inadequate on that issue).                       We express no

opinion on the merits of G.R.'s request to dismiss the case or




                                         16                                 A-4594-12T4
whether   the   incident   constituted     neglect   under     the   statute

because both issues are dependent on the remand proceedings.

       Reversed and remanded for further proceedings consistent

with   this   opinion   and   applicable   law.      We   do   not    retain

jurisdiction.




                                   17                                A-4594-12T4
