No Neglect by Mother who Mistakingly Left Child Home Alone

Last month the New Jersey Supreme Court in Dept of Children & Families, Div. of Youth & Family Servs. v. T.B. held that a finding of neglect was improperly entered against a mother who left her four-year-old child unsupervised for two hours under the mistaken belief that his grandmother was in the home.

Susan and her then four-year-old-son, John, were living with Susan’s mother, Mary, and step-father, Jim, who assisted in caring for John on a regular basis. Although Susan and John lived downstairs, the entire house was accessible to John and he moved freely to the upstairs portion of the home where his grandparents lived.

On Sunday, March 25, 2007, Susan and John returned home between 7:00 p.m. and 7:30 p.m. Susan immediately put John to bed and, with the belief that Mary was home, went to eat dinner with a friend. Susan believed that Mary was home sleeping because she saw Mary’s car in the driveway; Mary had been ill all week with the flu; Mary was always home on Sunday nights to prepare for work on Monday morning; and Jim worked on Sunday nights.

Mary, however, was not home because she and Jim took an impromptu trip to New York. Shortly after 9:00 p.m., John woke up and discovered that he was alone. He left the house, crossed the street, and told his neighbor that he could not find his mother. The police department was contacted. When Susan returned from dinner between 9:30 p.m. and 10:00 p.m. she was transported to the police station, where she gave a handwritten statement.

Mary and Jim returned from New York and attested to the impromptu nature of their trip and that Mary is always home on Sunday nights. No criminal charges were filed against Susan and the matter was turned over to DYFS.

DYFS substantiated the neglect allegation against Susan based upon inadequate supervision under New Jersey law.

Susan filed an appeal and the matter was referred to the Office of Administrative Law. After a hearing, the Administrative Law Judge (ALJ) recommended dismissal of the charges against Susan, concluding that DYFS did not prove by a preponderance of evidence that the physical, mental, or emotional condition of Susan’s child was impaired or was in imminent danger of becoming impaired as a result of her failure to exercise a minimum degree of care.

The DYFS Director rejected the ALJ’s decision and reinstated DYFS’s finding substantiating child neglect against Susan. The DYFS Director observed that Susan failed to take the cautionary actions of supervision that are expected and, although John was not harmed, the omission exposed him to a substantial risk of harm.

The Appellate Division affirmed. The Appellate Division was satisfied that sufficient credible evidence existed in the record to support the Director’s finding that Susan failed to exercise the minimum degree of care required under New Jersey law and concluded that Susan had placed John at substantial risk of harm by failing to ensure that her mother or step-father was at home before leaving the house.

The New Jersey Supreme Court granted Susan’s petition for certification.

The Court held that Susan did not fail to “exercise a minimum degree of care” under New Jersey law because her conduct did not rise to the level of gross negligence or recklessness. Therefore, her name must be removed from the Child Abuse Registry.

The Court explained that Susan’s conduct did not constitute a failure to “exercise a minimum degree of care.” Susan did not leave her 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 and that her mother had been ill all week with the flu. Further, her mother and step-father attested that Susan’s mother is always home on Sunday nights and that the trip to New York was unexpected. What occurred was totally out of the ordinary.

The Court concluded that although Susan’s failure to perform the cautionary act of assuring her mother’s presence was clearly negligent, under all of the circumstances known to her it did not rise to the level of gross negligence or recklessness.

1 Reply to "No Neglect by Mother who Mistakingly Left Child Home Alone"

  • Betty Busbee
    September 9, 2011 (4:11 pm)

    Sorry, but I think that the mother should have ensured that an adult was home. If Mary had been ill all week with the flu, Susan should have checked to see if she felt well enough to look after the child if he awakened. It is very doubtful that a child that age would immedicately go to sleep at 7:30, so he was probably still awake when Susan left. The fact that he awakened at about 9:00 shows that he may not have been asleep at all or may awaken often in the night. The child may not have been harmed, but there was definitely the potential for harm either in the home alone, crossing the street to go to the neighbor’s or some other manner. If nothing else, this family needed to be educated on the importance of communicating with others who live in the home about plans. Susan also needs to been educated on making certain there is an adult available and able to care for her child before leaving.