SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Department of Children & Families v. E.D.-O. (A-109-13) (073916)

Argued April 27, 2015 -- Decided August 20, 2015

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal concerning allegations of neglect by a parent, the Court considers, among other issues,

whether N.J.S.A. 9:6-8.21(c)(4)(b) requires a finding that the parent’s conduct presents an imminent risk of harm to 

the child at the time of fact-finding or at the time of the event that triggered agency intervention.

In May 2009, E.D.-O. left her sleeping nineteen-month-old child unattended for approximately ten minutes 

in a locked motor vehicle with the motor running. E.D.-O. was arrested and charged with endangering the welfare 

of her child. She later was released, and the police referred the matter to the Division of Child Protection and 

Permanency (Division). Following an investigation, a Division caseworker substantiated the allegation of neglect 

based on E.D.-O. leaving the child unattended in the car while she shopped in a nearby store. The Division filed a 

complaint against E.D.-O. and her husband, pursuant to N.J.S.A. 9:6-8.21 to -8.73 (Title 9), seeking care and 

supervision of their four children. E.D.-O. then filed with the Division an appeal of the substantiation of neglect 

finding and requested an administrative hearing. The Division denied the request pending resolution of the criminal 

charges and the protective services litigation. The Title 9 complaint was resolved by a consent order, and E.D.-O.

renewed her administrative appeal of the substantiation determination.

On September 28, 2012, E.D.-O. filed a notice of tort claim with various State agencies, including the 

Division. A deputy attorney general then filed a motion seeking an order (1) summarily affirming the Division’s 

decision to substantiate neglect against E.D.-O., and (2) denying her request for a hearing. E.D.-O. filed a crossmotion for summary disposition. On March 4, 2013, the Division Director denied E.D.-O.’s request for a hearing, 

granted the Division’s motion for summary disposition, and ordered that E.D.-O.’s name be placed in the Central 

Registry, pursuant to N.J.S.A. 9:6-8.11. The Director stated that E.D.-O. failed to identify a contested fact that 

required an evidentiary hearing; therefore, the Director concluded that the Division was not required to forward 

E.D.-O.’s appeal to the Office of Administrative Law (OAL). 

E.D.-O. appealed, and the Appellate Division affirmed the final agency decision substantiating neglect. 

434 N.J. Super. 154 (App. Div. 2014). The appellate panel concluded that a hearing in the OAL was unnecessary 

because E.D.-O.’s actions plainly constituted gross neglect. The Court granted certification. 218 N.J. 530 (2014).

HELD: N.J.S.A. 9:6-8.21(c)(4)(b) requires a finding that the parent’s conduct presents an imminent risk of harm to 

the child at the time of the event that triggered the Division’s intervention. In addition, the determination of whether 

a parent’s conduct is negligent or grossly negligent requires an evaluation of the totality of the circumstances, which 

can only occur through a hearing. The Division should have referred E.D.-O.’s appeal to the OAL for a hearing.

1. Title 9’s definition of “abused or neglected child” initially looks for actual impairment to the child. Absent

evidence of actual harm, the focus shifts to whether there is a threat of harm. In those circumstances, the Division 

must show imminent danger or a substantial risk of harm by a preponderance of the evidence. That assessment must 

consist of a particularized review of a parent’s or caretaker’s actions and the impact of any act or omission on the 

child. In all but the most obvious instances, that analysis must avoid resort to categorical conclusions. (pp. 14-21)

2. Whether a parent’s or caretaker’s decision to leave a child unattended in a home or a car constitutes neglect has 

been the subject of several appellate decisions. This court has emphasized that “‘failure . . . to exercise a minimum 

degree of care’” -- the statutory foundation for a finding of neglect -- “at least requires grossly negligent or reckless 

conduct.” Dep’t of Children & Families v. T.B., 207 N.J. 294, 306 (2011) (quoting N.J.S.A. 9:6-8.21(c)(4)(b)). 

Appellate courts also have explained that the standard is not whether some potential for harm exists. A parent fails 
2

to exercise a minimum degree of care when she is aware of the dangers inherent in a situation and fails adequately to 

supervise the child or recklessly creates a risk of serious injury to the child. (pp. 21-26) 

3. Each determination of whether conduct constitutes child abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(b) 

requires a finding of whether the child suffered actual physical, mental, or emotional harm or whether the conduct 

exposed the child to an imminent risk of such harm. E.D.-O. contends that when no actual harm occurs to the child, 

the focus of the risk of harm is not at the time of the occurrence of the event, but at the time of fact-finding by the 

agency or an ALJ or a trial court. On this interpretive issue, the Court begins its inquiry with the plain language of 

the statute, which, in this case, is not dispositive. Moreover, the textual analysis advanced by E.D.-O. is out of step

with the legislative intent of the statute, and deviates from several opinions of this Court and of the Appellate 

Division. Applied strictly, E.D.-O.’s focus on the risk at that time of the fact-finding has the obvious potential to 

overlook conduct, even aberrational conduct, that had the clear capacity to produce a catastrophic result. Such an 

approach contravenes the legislative determination that child protective services and a court may intervene before a 

child experiences actual harm. Focusing on a parent’s conduct at the time of the incident does not preclude ever 

considering the risk of harm posed by a parent at the time of a hearing. In fact, the myriad dispositions available to 

the trial court after it enters a finding of abuse or neglect are fashioned based on current circumstances. (pp. 27-33)

4. The Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to –24, governs rulemaking by State agencies and 

provides basic ground rules for the conduct of administrative hearings in contested matters. A contested case 

commences when an agency renders a decision and a person seeks review of the decision. N.J.S.A. 52:14B-2(b). 

The agency must first determine whether the request for review constitutes a contested case. If so, the matter is 

forwarded to the OAL to assign an ALJ and schedule a hearing. The Division has promulgated rules governing 

dispute resolution. See N.J.A.C. 10:120A-1.2(a)(2). In essence, the Division has imported the summary disposition 

procedure utilized by the OAL, see N.J.A.C. 1:1-12.5, to perform its threshold function of identifying an appeal that 

requires reference to the OAL. The Court questions whether this two-step procedure was ever contemplated by the 

APA or is compliant with the APA’s overall intent. (pp. 34-37)

5. Any allegation of child neglect in which the conduct of the parent or caretaker does not cause actual harm is factsensitive and must be resolved on a case-by-case basis. The treatment of this matter and others discussed in this 

opinion evinces a proclivity by the Division to apply a categorical rule that any parent or caretaker who leaves a 

young child unattended for any length of time, particularly in a motor vehicle, has failed to exercise a minimum 

degree of care that places the child in imminent danger of impairing that child’s physical, emotional, or mental wellbeing. The Court continues to disapprove of the Division’s resort to a categorical approach to this subset of cases.

When substantiation of neglect must be determined on a case-by-case basis, there is little room for disposition of an 

appeal of a substantiation of neglect through the agency’s self-devised summary disposition procedure. E.D.-O.’s 

appeal from the Division’s substantiation of neglect should have been referred to the OAL, and E.D.-O. should have 

had the opportunity to advance all of the circumstances surrounding the event. (pp. 37-40)

6. The Court comments on the excessive amount of time that elapsed between E.D.-O.’s initial appeal of the 

substantiation determination, her renewed appeal following dismissal of the Title 9 complaint, and the filing of the 

motion for summary disposition in the Division. The Court finds the lapse of time troubling, and notes that no one -

- parents, caretakers, or the public -- is served when an issue as important as whether an adult abused or neglected a 

child remains unresolved for years. (pp. 40-41)

7. Finally, the Court notes that enrollment in the Central Registry is a consequence of a finding of abuse or neglect. 

N.J.S.A. 9:6-8.11. Although the Court is mindful of the consequences of enrollment in the Registry and the duration 

of those consequences, it is not the function of the Court to address those seeming excesses by distorting the analysis 

of the underlying conduct. The Court finds that the concerns addressed by E.D.-O. and others are best addressed by 

the Legislature and, perhaps, the Division. (pp. 41-42)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Office of 

Administrative Law for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZVINA and SOLOMON join in JUDGE CUFF’s opinion.
1

SUPREME COURT OF NEW JERSEY

A-109 September Term 2013

073916

DEPARTMENT OF CHILDREN AND 

FAMILIES, DIVISION OF CHILD 

PROTECTION AND PERMANENCY,

Petitioner-Respondent,

v.

E.D.-O.,

Respondent-Appellant.

Argued April 27, 2015 – Decided August 20, 2015

On certification to the Superior Court, 

Appellate Division, whose opinion is 

reported at 434 N.J. Super. 154 (App. Div. 

2014).

Sean Marotta argued the cause for appellant 

(Hogan Lovells US and Epstein Arlen, 

attorneys; Mr. Marotta, Daniel N. Epstein,

and Carol E. Matula, on the briefs).

Erin O’Leary, Deputy Attorney General,

argued the cause for respondent (John J. 

Hoffman, Acting Attorney General of New 

Jersey, attorney; Andrea M. Silkowitz,

Assistant Attorney General, of counsel; Ms. 

O’Leary, and Ann Avram Huber, Deputy 

Attorney General, on the briefs).

T. Gary Mitchell, Deputy Public Defender, 

argued the cause for amicus curiae Public 

Defender Parental Representation (Joseph E. 

Krakora, Public Defender, attorney; Mr. 

Mitchell and Robyn A. Veasey, Deputy Public 

Defender & Managing Attorney, of counsel).
2

Jeyanthi C. Rajaraman argued the cause for 

amicus curiae Legal Services of New Jersey

(Melville D. Miller, Jr., President, 

attorney; Ms. Rajaraman, Mr. Miller, and 

Mary M. McManus-Smith, on the brief).

JUDGE CUFF (temporarily assigned) delivered the opinion of 

the Court.

All too frequently we hear of a parent who left a child 

unattended in a motor vehicle. In some instances the outcome 

has been tragic. Yet, even when no harm comes to the child, the 

parent still may be charged with a criminal offense or, if such 

action is warranted, the matter may be referred to the relevant 

child welfare agency. This is one of the latter cases. 

In this appeal, on a morning in early May 2009, a mother 

left her sleeping nineteen-month-old child unattended for 

approximately ten minutes in a locked motor vehicle with the 

motor running in a shopping mall parking lot. The Division of 

Child Protection and Permanency1 (Division) substantiated 

neglect, and the mother filed for an administrative review of 

that determination. The Division filed a complaint in the 

Superior Court, pursuant to N.J.S.A. 9:6-8.21 to -8.73 (Title 

9), seeking care and supervision of the unattended child and her 

siblings. That complaint was resolved by a consent order, and 

 

1 Effective June 29, 2012, the Division of Youth and Family 

Services was renamed the Division of Child Protection and

Permanency. L. 2012, c. 16.
3

the mother renewed her administrative appeal of the 

substantiation determination.

Years later, the Division determined that no genuine issue 

of material fact existed and summarily disposed of the matter. 

The Appellate Division affirmed the final agency decision 

substantiating neglect. The appellate panel concluded that a 

hearing in the Office of Administrative Law (OAL) was 

unnecessary because the mother’s actions plainly constituted

gross neglect.

Before this Court, the mother argues that in a case in 

which no actual harm befell the child, the Division must 

evaluate whether her conduct caused an imminent risk of harm to 

her child at the time of fact-finding, rather than at the time 

of the event. To do otherwise, she insists, is contrary to the 

plain meaning and legislative intent of the statute. 

Furthermore, the mother argues that requiring her name to be 

listed on the Central Registry2 for a single lapse in judgment is 

unreasonable. 

 

2 N.J.S.A. 9:6-8.11 creates a child abuse registry that serves as 

“the repository of all information regarding child abuse or 

neglect that is accessible to the public pursuant to State and 

federal law.” The records may be disclosed to physicians, 

courts, child welfare agencies, and certain employers. See N.J. 

Dep’t of Children & Families v. A.L., 213 N.J. 1, 26 (2013) 

(citing N.J.S.A. 9:6-8.10a(b)(1)-(23)). 
4

Finally, the mother insists that the Division erred and the 

Appellate Division compounded the error by applying a 

categorical approach to evaluate her actions. She maintains 

that the Division should have referred her appeal to the OAL for 

a hearing by an Administrative Law Judge (ALJ).

We reject the interpretation of the definition of abuse and 

neglect, N.J.S.A. 9:6-8.21(c)(4)(b), advanced by the mother that 

the statute requires a finding that the parent’s conduct 

presents an imminent risk of harm to the child at the time of 

fact-finding rather than at the time of the event that triggered 

the Division’s intervention. Such an interpretation is not 

supported by the text of the statute, the legislative history, 

the Court’s long-standing interpretation and application of the 

statute, or common sense.

We also hold that the Division should have referred the 

mother’s appeal to the OAL for a hearing. Leaving a child 

unattended in a car or a house is negligent conduct. However, 

this Court has emphasized that whether a parent’s conduct is 

negligent or grossly negligent requires an evaluation of the 

totality of the circumstances. Such an evaluation can only 

occur through a hearing. The Division not only denied the 

mother a timely determination of her appeal but also denied her 

an individualized review of the unique circumstances attendant 
5

to the incident involving her child. We therefore reverse and 

remand this matter for a hearing before the OAL.

I.

On the morning of May 6, 2009, E.D.-O. drove to the Dollar 

Tree store in the Middlesex Mall in South Plainfield with her 

nineteen-month-old daughter, S.O., to pick up party supplies for 

a birthday celebration for one of her other children. S.O. fell 

asleep in her car seat. Not wanting to wake her sleeping child, 

E.D.-O. decided to leave her asleep in the backseat of the car. 

She parked about 150 feet, or ten parking spaces, away from the 

store, left the engine running, opened both front windows

slightly, and locked the doors. The sky was overcast and the 

temperature was about fifty-five degrees. 

While E.D.-O. was in the store, a security guard noticed 

the running car and the sleeping child. He called the police. 

The security guard estimated that five or ten minutes elapsed 

between the time he observed the car and the arrival of the 

police. When E.D.-O. emerged from the store, she was confronted 

by a police officer. E.D.-O. indicated that she observed police 

activity around her car while she was paying for her 

merchandise. She estimated that she left her daughter 

unattended for less than ten minutes. 

A police officer arrested E.D.-O. and charged her with 

endangering the welfare of her child. E.D.-O. contacted her 
6

father, who took custody of the child. E.D.-O. was released on 

her own recognizance, and the police referred the matter to the 

Division.

Later that day, a caseworker from the Division arrived at 

E.D.-O.’s home. The caseworker reported that E.D.-O. cried 

during the interview and stated that she had never left this 

child or any of her other children unattended in a car. She 

told the caseworker that she usually would leave S.O. with her 

parents or stay home if S.O. was sleeping. However, E.D.-O. 

said, that morning, S.O. had fallen asleep on the drive to the 

store. The caseworker inspected the house, finding that each 

child had their own bedroom, the house was clean, and there was 

adequate food for the family. She also reported that S.O. was 

dressed appropriately and appeared to be well-nurtured.

The Division caseworker interviewed E.D.-O.’s husband and 

three other children, ages nine, six, and four years old. E.D.-

O.’s husband informed the caseworker that his wife had never 

left their children unattended before this incident. He stated 

that she was a caring mother who also very capably managed his 

electrical business. He told the caseworker he was confident 

E.D.-O. would never make this mistake again and that he believed 

she realized that she had made a bad decision. The children 

confirmed that their parents never left them home alone. At the 

conclusion of her investigation, the caseworker substantiated 
7

the allegation of neglect based on E.D.-O. leaving the child 

unattended in the car while she shopped in a nearby store. 

II.

On May 19, 2009, the Division filed a complaint in Superior 

Court against E.D.-O. and her husband seeking care and 

supervision of their four children. 

On May 27, 2009, soon after the Division filed its 

complaint, E.D.-O. filed with the Division an appeal of the 

substantiation of neglect finding and requested an 

administrative hearing. The Division denied the request pending 

resolution of the criminal charges and the protective services 

litigation. On September 9, 2009, following dismissal of the 

Title 9 complaint pursuant to a consent order,3 E.D.-O. renewed 

her request to appeal the substantiation of neglect. Counsel 

for E.D.-O. sent additional letters concerning E.D.-O.’s 

substantiation appeal on November 9, 2009, August 12, 2010, and 

July 19, 2012. 

On September 28, 2012, E.D.-O. filed a notice of tort claim 

with various State agencies, including the Division. As the 

basis for E.D.-O.’s claim, the notice identified the Division’s 

refusal to schedule a hearing, thus causing injury to E.D.-O.’s

 

3 The record does not reveal the disposition of the criminal 

charge filed against E.D.-O., although there is no mention in 

the record of any conviction entered against E.D.-O.
8

reputation. On December 3, 2012, a deputy attorney general 

filed a motion seeking an order summarily affirming the 

Division’s decision to substantiate neglect against E.D.-O. and 

denying her request for a hearing. E.D.-O. filed a cross-motion 

for summary disposition in which she noted that the Appellate 

Division had reached different results in various cases 

addressing the issue of whether leaving a child unattended 

constituted neglect. 

On March 4, 2013, the Division Director denied E.D.-O.’s 

request for a hearing, granted the Division’s motion for summary 

disposition, and ordered that E.D.-O.’s name be placed in the 

Central Registry. The Director stated that E.D.-O. failed to 

identify a contested fact that required an evidentiary hearing;

therefore, the Director concluded that the Division was not 

required to forward E.D.-O.’s appeal to the OAL. 

E.D.-O. appealed, and the Appellate Division affirmed.

Dep’t of Children & Families, Div. of Child Prot. & Permanency 

v. E.D.-O., 434 N.J. Super. 154 (App. Div. 2014). In so doing, 

it agreed that an evidentiary hearing was not required. Id. at 

157. The panel noted that the material facts were not disputed 

and that the Director had properly invoked the summary 

disposition procedure. Ibid. 

The Appellate Division proceeded to frame the legal issue 

as “whether the material facts support a finding of abuse or 
9

neglect.” Ibid. It answered that inquiry in the affirmative,

stating that

[a]lthough 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 [E.D.-O.’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). 

[Id. at 160.]

The Appellate Division acknowledged that the child was not 

harmed but emphasized that a finding of neglect often “arise[s]

because of a legitimate and reasonable inference -- stemming 

from the act or omission in question -- that ‘the child is 

subject to future danger.’” Id. at 159 n.5 (quoting Dep’t of 

Children & Families v. T.B., 207 N.J. 294, 307 (2011)). 

Regarding the facts of the appeal, the panel determined 

that “‘an ordinary reasonable person’” would have “recognize[d] 

the peril.” Id. at 161 (quoting G.S. v. Dep’t of Human Servs., 

157 N.J. 161, 179 (1999)). Specifically, the panel explained 

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.” Ibid. The panel 

determined that “[E.D.-O.] recognized the danger when she felt 

it necessary to lock the vehicle’s doors and lower both the 
10

front windows by an inch.” Ibid. The panel conceded however 

that there may be circumstances when leaving a child unattended 

in a motor vehicle may not run afoul of N.J.S.A. 9:6-

8.21(c)(4)(b). It cited as an example a parent who left a sick 

and sleeping child in a car while the parent entered a pharmacy 

to purchase a prescription for the child. Id. at 162. Those 

extenuating circumstances would not be considered grossly 

negligent conduct as defined by section 8.21(c)(4)(b). 

This Court granted E.D.-O.’s petition for certification. 

218 N.J. 530 (2014). 

III.

A.

E.D.-O. advances three arguments in support of her 

contention that the Appellate Division’s judgment must be 

reversed.

First, she argues that a parent should not be placed on the 

Central Registry when the alleged act of abuse or neglect is 

aberrational and the parent does not pose a risk of harm to any 

child at the time the complaint seeking care and supervision of 

her children is heard or the Director renders a decision. This 

argument relies on a textual analysis of N.J.S.A. 9:6-

8.21(c)(4)(b), New Jersey Division of Child Protection & 

Permanency v. M.C., 435 N.J. Super. 405 (App. Div.), certif. 

granted, 220 N.J. 41 (2014), to support her contention that the 
11

Division is required to prove that the child has suffered actual 

harm or that the child remains at risk of imminent harm at the 

time of the fact-finding. According to E.D.-O., the facts of 

this case could never support a finding of neglect because the 

child suffered no actual harm and there was absolutely no 

evidence that there was any present or continuing risk of harm 

at the time the Director rendered her decision. E.D.-O. argues 

that her inclusion in the Central Registry, when her conduct 

posed no present or continuing risk of harm to the child, only 

compounds the error.

Second, E.D.-O. contends that the Director should have 

granted her motion for summary disposition because the Division 

failed to produce particularized evidence that she placed her 

daughter in imminent danger or subjected her to a substantial 

risk of harm. 

Third, E.D.-O. maintains that she should have received an 

evidentiary hearing. 

B.

The Division urges this Court to affirm the judgment of the 

Appellate Division. The Division invokes the rule extending 

deference to agency fact-finding and interpretation of a statute 

the agency is charged with enforcing. The Division also urges 

that the finding of neglect is well supported by the record. It 

submits that there are no exigent or extenuating circumstances 
12

that justify the action taken by E.D.-O. in this case. The 

Division also maintains that its disposition is consistent with 

well-established authority. 

Furthermore, the Division urges the Court to reject E.D.-

O.’s interpretation of section 8.21(c)(4)(b) that the child must 

be in imminent danger of becoming impaired at the time of the 

finding. The Division submits that the interpretation offered 

by E.D.-O. is contrary to established authority and that a plain 

reading of the statute indicates that the risk of harm posed by 

a parent must be evaluated at the time of the parent’s abusive 

or neglectful conduct. 

The Division also contends that an administrative hearing 

before the OAL was not required because no material fact was in 

dispute. The Division emphasizes that both parties maintained 

that summary disposition was appropriate to resolve the issue.

The Division maintains that E.D.-O. has waived this argument 

because she failed to request an evidentiary hearing before the 

agency.

C.

Amicus curiae Office of Parental Representation of the 

Office of the Public Defender (OPR) urges this Court to reverse 

the judgment of the Appellate Division. OPR contends that E.D.-

O. did not receive a full and fair hearing and that the Director 

applied a categorical rule. OPR contends that the record lacked 
13

any particularized evidence of imminent danger to the sleeping 

child.

OPR also expresses concern about the litigation tactics 

employed by the Division. OPR argues that the Division’s

decision to dismiss the complaint it filed in Superior Court 

should preclude further litigation of the issue in a court of 

law or before the agency. OPR postulates that the Division may 

have engaged in forum shopping to assure a favorable outcome.

Finally, OPR posits that “a defendant . . . will rarely ever 

consent to forego a fact-finding, without attempting first to 

secure . . . [a] withdrawal of a substantiation of neglect or 

abuse.” As a result, the Family Part will experience an 

increase in litigation.

OPR also argues that the statute requires the agency or a 

court to address fact-sensitive claims in an evidentiary 

hearing. It maintains that inclusion on the Central Registry 

without an evidentiary hearing is contrary to the procedural 

protections contemplated by Title 9. 

Amicus curiae Legal Services of New Jersey (LSNJ) urges 

this Court to reverse the Appellate Division’s judgment because 

E.D.-O. faces the “severe, frequently life-altering effects” of 

being placed on the Central Registry without an adjudication 

from a court or even a fact-finding hearing. LSNJ also 

highlights four procedural flaws committed by the Division,
14

including the omission of “an evidence-based fact-finding

hearing before a neutral adjudicator,” the unilateral 

determination by the Director of “no material issue of fact,”

the inordinate and unjustified delay of E.D.-O.’s appeal of the 

substantiation decision, and the failure to clearly notify E.D.-

O. and others of the effect of substantiation.

LSNJ also contends that the Appellate Division failed to 

consider all of the elements of N.J.S.A. 9:6-8.21(c)(4)(b), 

specifically, that “an act or omission . . . demonstrates 

reckless disregard of substantial danger,” that the child’s 

condition has been actually impaired or the child is in imminent 

danger of impairment, and that “a causal link [exists] between 

the recklessness and the ‘actual or imminent’ impairment.”

Finally, LSNJ urges this Court to provide guidance on the 

factors that should be considered in cases involving unattended 

children. 

IV.

A.

In general, “Title 9 controls the adjudication of abuse and 

neglect cases.” N.J. Div. of Youth & Family Servs. v. M.C. III, 

201 N.J. 328, 343 (2010) (citing N.J.S.A. 9:6-8.21 to -8.73). 

This Court has explained that “[t]he purpose animating Title 9

‘is to provide for the protection of children under 18 years of 

age who have had serious injury inflicted upon them.’” N.J. 
15

Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011)

(quoting N.J.S.A. 9:6-8.8). Indeed, Title 9 declares that its 

purpose is

to provide for the protection of children 

under 18 years of age who have had serious 

injury inflicted upon them by other than 

accidental means. The safety of the children 

served shall be of paramount concern. It is 

the intent of this legislation to assure that 

the lives of innocent children are immediately 

safeguarded from further injury and possible 

death and that the legal rights of such 

children are fully protected.

[N.J.S.A. 9:6-8.8(a).]

Title 9’s main focus is not the “culpability of parental 

conduct” but rather “the protection of children.” G.S., supra,

157 N.J. at 177. The sponsors of the original bill proclaimed 

this same focus:

This bill recognizes that children have 

certain legal rights, most important of these 

being the right of protection from physical 

abuse and neglect.

The purpose of this bill is to insure 

that these rights will be adequately protected 

by the appropriate courts and social service 

agencies. Any proceedings under this bill 

will be carried out with the best interest of 

the child or children involved as the primary 

concern.

[S. 1217 (Sponsor’s Statement), 196th Leg. 

(Apr. 29, 1974).]

Title 9 defines an “abused or neglected child,” in 

pertinent part, as
16

a child less than 18 years of age . . . 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 . . . in providing the 

child with proper supervision or guardianship, 

by unreasonably inflicting or allowing to be 

inflicted harm, or substantial risk thereof.

[N.J.S.A. 9:6-8.21(c)(4)(b).]

Accordingly, Title 9 initially looks for actual impairment to 

the child. However, when there is no evidence of actual harm, 

the focus shifts to whether there is a threat of harm. N.J. 

Dep’t of Children & Families v. A.L., 213 N.J. 1, 22 (2013). 

Thus, “a finding of abuse and neglect can be based on proof of 

imminent danger and a substantial risk of harm.” Id. at 23. 

Under those circumstances, “the Division must show imminent

danger or a substantial risk of harm to a child by a 

preponderance of the evidence.” Ibid. (citing N.J.S.A. 9:6-

8.21(c)(4)(b), -8.46(b)). Moreover, “[c]ourts need not wait to 

act until a child is actually irreparably impaired by parental 

inattention or neglect.” In re Guardianship of D.M.H., 161 N.J.

365, 383 (1999). 

To find abuse or neglect, the parent must “fail[] . . . to 

exercise a minimum degree of care.” N.J.S.A. 9:6-8.21(c)(4)(b). 

This Court examined the “minimum degree of care” standard in 

G.S.:
17

The phrase “minimum degree of care” denotes a 

lesser burden on the actor than a duty of 

ordinary care. If a lesser measure of care is 

required of an actor, then something more than 

ordinary negligence is required to hold the 

actor liable. The most logical higher measure 

of neglect is found in conduct that is grossly 

negligent because it is willful or wanton. 

Therefore, we believe the phrase “minimum 

degree of care” refers to conduct that is 

grossly or wantonly negligent, but not 

necessarily intentional. 

[G.S., supra, 157 N.J. at 178.]

The Court further explained what amounts to willful or wanton 

conduct: 

Conduct is considered willful or wanton 

if done with the knowledge that injury is 

likely to, or probably will, result . . . . 

The label turns on an evaluation of the 

seriousness of the actor’s misconduct. 

McLaughlin[ v. Rova Farms, Inc.], 56 N.J.

[288,] 306 [(1970)]. Although it is clear 

that the phrase implies more than simple 

negligence, it can apply to situations ranging 

from “slight inadvertence to malicious purpose 

to inflict injury.” Id. at 305; Krauth v. 

Israel Geller and Buckingham Homes, Inc., 31 

N.J. 270, 277 (1960) . . . . 

Essentially, the concept of willful and 

wanton misconduct implies that a person has 

acted with reckless disregard for the safety 

of others. Fielder[ v. Stonack], 141 N.J.

[101], 123 [(1995)]; McLaughlin, supra, 56 

N.J. 305. Where an ordinary reasonable person 

would understand that a situation poses 

dangerous risks and acts without regard for 

the potentially serious consequences, the law 

holds him responsible for the injuries he 

causes. Ibid. Thus, under a wanton and 

willful negligence standard, a person is 

liable for the foreseeable consequences of her 
18

actions, regardless of whether she actually 

intended to cause injury.

[G.S., supra, 157 N.J. at 178-79.]

Therefore, the Court held that “a guardian fails to exercise a 

minimum degree of care when he or she is aware of the dangers 

inherent in a situation and fails adequately to supervise the 

child or recklessly creates a risk of serious injury to that 

child.” Id. at 181; see also T.B., supra, 207 N.J. at 306 

(restating standard as “‘failure . . . to exercise a minimum 

degree of care’ requires at least grossly negligent or reckless 

conduct”).

Abuse and neglect cases “are fact-sensitive.” T.B., supra, 

207 N.J. at 309. An analysis of a parent’s conduct must account 

for the surrounding circumstances. G.S., supra, 157 N.J. at 

181-82 (“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.”). In G.S., this Court 

instructed that

the inquiry should focus on the harm to the 

child and whether that harm could have been 

prevented had the guardian performed some act 

to remedy the situation or remove the danger.

When a cautionary act by the guardian would 

prevent a child from having his or her 

physical, mental or emotional condition 

impaired, that guardian has failed to exercise 

a minimum degree of care as a matter of law. 

Ultimately, we leave it to [the Division] and 

the courts to determine, on a case-by-case 

basis, whether a caregiver has failed to 
19

exercise a minimum degree of care in 

protecting a child. 

[Id. at 182.]

Failing to perform a cautionary act, however, is not necessarily 

abuse or neglect. T.B., supra, 207 N.J. at 306-07. Instead, to 

be considered abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b),

that failure must rise to the level of gross negligence. Ibid.

(explaining mere negligence in failing to perform cautionary act 

insufficient under statute).

Furthermore, in light of the Legislature’s stated intention

to protect children, the focus in assessing a parent’s conduct 

is “on the parent’s level of culpability.” Id. at 307. As a 

result, the Court has stated that 

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.

[Ibid.]

That assessment must consist of a particularized review of 

a parent’s or caretaker’s actions and the impact of any act or 

omission on the child. P.W.R., supra, 205 N.J. at 33. In all 

but the most obvious instances, that assessment must avoid 

resort to categorical conclusions. See T.B., supra, 207 N.J. at 

309.
20

In cases where the child has not suffered actual harm, the 

Division must “demonstrat[e] some form of . . . threatened harm 

to a child.” A.L., supra, 213 N.J. at 25. A.L. illustrates the 

rule requiring a particularized review of each situation in 

which the Division asserts that a parent or caretaker has 

neglected a child. Ibid. In A.L., the Division filed a 

complaint pursuant to N.J.S.A. 9:6-8.21(c)(4)(b) alleging that 

the mother had abused or neglected her infant, who tested 

positive for cocaine metabolites. Id. at 9. At the factfinding hearing, the Division relied solely on medical records 

from the hospital at which the child was born and the mother’s 

prenatal drug use to support its allegation that the mother had 

abused or neglected her child. Id. at 12-13. The Division 

conceded that it could not prove actual harm to the child. Id.

at 13. However, it argued that the mother’s prenatal drug use 

and the presence of cocaine metabolites in the infant supported 

a finding that the mother had exposed her child to a substantial 

risk of harm. Ibid. 

The Court determined that “[t]he records, without more, 

revealed little about the degree of future harm posed to the 

newborn, which is the statute’s critical focus in this case.”

Id. at 9. The Court also noted that the Division had adduced no 

evidence about A.L.’s behavior or the health and development of 

her child in the months following the child’s birth. Id. at 12-
21

13. The Court emphasized the obligation of the Division to 

demonstrate “some form of actual or threatened harm to a child.”

Id. at 25. Ultimately, it concluded that “a report noting the 

presence of cocaine metabolites in [the baby’s first stool], 

without more, does not establish proof of imminent danger or 

substantial risk of harm.” Id. at 27-28. 

B.

Whether a parent’s or caretaker’s decision to leave a child 

unattended in a home or a car constitutes neglect has been the 

subject of several appellate decisions. In T.B., supra, the 

Court examined whether a parent neglected her child when she 

left her sleeping four-year-old son alone in their home for over 

two hours. 207 N.J. at 296-97. When he awoke and could not 

find his mother, the child left the house. Id. at 297. He was 

found across the street from his home. Ibid. 

In T.B., the mother contested the Division’s substantiation 

of neglect. Id. at 299. At a hearing, she testified that she 

saw her own mother’s car parked in the driveway and assumed her 

mother was at home before dropping off her son. Id. at 297-98. 

The child and his mother lived in the same home as the maternal 

grandparents, who also regularly participated in the child’s 

care. Id. at 296-97. The Court emphasized that “‘failure . . . 

to exercise a minimum degree of care’” -- the statutory 

foundation for a finding of neglect -- “at least requires 
22

grossly negligent or reckless conduct.” Id. at 306 (quoting 

N.J.S.A. 9:6-8.21(c)(4)(b)). The Court also emphasized that 

“the ‘cautionary act’ language in G.S. is informed by the 

grossly negligent or reckless standard that that case 

established. In other words, every failure to perform a 

cautionary act is not abuse or neglect.” Ibid. 

Applying that understanding of the standard articulated in 

N.J.S.A. 9:6-8.21(c)(4)(b), the Court concluded that the 

mother’s conduct was not grossly negligent or reckless, id. at 

309, although her conduct was certainly negligent, id. at 310. 

The Court explained that 

[t]his is not a situation in which she left 

her four-year-old son at home alone knowing 

there was no adult supervision. Instead, [the 

mother], 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 . . . . What occurred on the 

date in question was totally out of the 

ordinary. To be sure, [the mother’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.

[Id. at 309-10.]
23

The Court therefore did not reach the issue of whether the 

mother’s clearly negligent act posed a risk of harm to her 

child. Id. at 310. 

In New Jersey Division of Youth & Family Services v. J.L., 

410 N.J. Super. 159 (App. Div. 2009), the Appellate Division 

reversed a final determination by the Director of the Division 

of Youth & Family Services that a mother committed an act of 

child neglect, as defined by N.J.S.A. 9:6-8.21(c)(4)(b), when 

she permitted her four-year-old and six-year-old sons to leave 

the recreation area of the condominium development in which the 

family lived and enter the family home alone. Id. at 161, 174. 

The mother remained in the recreation area to speak with a 

friend but could see the boys at all times as they made their 

way to their home. Id. at 161. J.L. had trained the boys to 

leave the door, which was equipped with a child-proof cover, 

ajar if they entered the home without her. Ibid. However, on 

that day, the door closed. Ibid. The boys were unable to open 

it. Ibid. The older boy called 9-1-1 and the police arrived 

about ten minutes later. Id. at 162. Realizing that the 

children had not returned, the mother collected their 

belongings. Ibid. As she approached her home, she realized 

that the police were at her front door. Ibid. Between the time 

they left their mother and the police arrived, the children were 

unsupervised for approximately thirty minutes. Id. at 166.
24

In reversing the Director’s final decision that the mother 

had committed an act of child neglect by failing to supervise 

her sons, the Appellate Division rejected the Division’s 

contention that the mother’s conduct rose to the level of gross 

negligence because of the potential of harm to the children 

while unsupervised. Id. at 168. The appellate panel emphasized 

however that “the standard is not whether some potential for 

harm exists. A parent fails to exercise a minimum degree of 

care when she is ‘aware of the dangers inherent in a situation 

and fails adequately to supervise the child or recklessly 

creates a risk of serious injury to the child.’” Id. at 168-69 

(quoting G.S., supra, 157 N.J. at 181). 

In Department of Children & Family Services v. G.R., 435 

N.J. Super. 392, 393 (App. Div. 2014), a mother left her twoyear-old child asleep in a car while she entered a Target store.

A police officer observed the unattended child and issued a 

summons to the mother when she returned five minutes later.

Ibid. The Appellate Division determined that the Director erred 

by granting the Division’s motion to proceed summarily and in 

concluding that the mother’s conduct constituted child neglect.

Id. at 399. The appellate panel noted that the existence of 

multiple disputed issues of fact required referring the matter

to the OAL. Ibid. The panel proceeded to provide some 

instructions to guide the remand. Id. at 399-400. The panel 
25

emphasized that whether a parent or caregiver has failed to 

exercise a minimum degree of care is to be “‘analyzed in light 

of the dangers of the situation,’” id. at 400 (quoting G.S., 

supra, 157 N.J. at 181-82), and on a case-by-case basis, id. at 

401. 

In another case, the Appellate Division affirmed a 

substantiation of neglect by a school bus driver who left a 

five-year-old child asleep in a bus for over an hour. N.J.

Dep’t of Children & Families v. R.R., 436 N.J. Super. 53, 55

(App. Div. 2014). There, the driver did not conduct an 

independent inspection of the bus at the end of the route but 

relied on the advice of an aide known to the driver to be 

unreliable. Id. at 58. Following a hearing and an ALJ’s 

recommendation that the driver’s conduct could not be considered 

grossly negligent or reckless, the Department of Children and 

Families concluded that the driver’s failure to personally 

inspect the bus at the end of the route was willful and wanton 

conduct. Ibid. The Appellate Division determined that the 

totality of the circumstances -- failing to personally inspect 

the bus, deferring to the advice of her unreliable aide, and 

leaving the young child alone on a bus on a day in which the 

temperature soared above ninety degrees -- fully satisfied the 

statutory standard of grossly negligent or reckless conduct that 
26

created an imminent risk of harm to the sleeping child. Id. at 

59-60. 

To be sure, “[w]hether a particular event is to be 

classified as merely negligent or grossly negligent defies 

‘mathematical precision.’” Div. of Youth & Family Servs. v. 

A.R., 419 N.J. Super. 538, 544 (App. Div. 2011) (quoting G.S., 

supra, 157 N.J. at 178). In some instances, it is a close call. 

See, e.g., T.B., supra, 207 N.J. at 309. In other cases, it is 

not. For example, in A.R., supra, the court considered whether 

a father neglected his ten-month-old son who he left unattended 

on a twin bed without railings. 419 N.J. Super. at 543. The 

bed was situated next to an operating radiator. Ibid. There 

was evidence that the father placed some blankets to prevent the 

child from rolling off the bed. Id. at 545-46. Hours later, a 

ten-year-old child sleeping in the same room awoke to find the 

infant on the floor against the hot radiator. Id. at 541. The 

child suffered severe burns to his right cheek, head, and left 

arm. Id. at 540. 

The Appellate Division reversed the trial court’s finding 

that the father’s conduct was merely negligent. In this case of 

actual harm, the panel determined that “[a]n ordinary reasonable 

person would understand the perilous situation in which the 

child was placed, and for that reason, defendant’s conduct 

amounted to gross negligence.” Id. at 546. 
27

V.

Each determination of whether the conduct of a parent or 

caretaker constitutes child abuse or neglect pursuant to 

N.J.S.A. 9:6-8.21(c)(4)(b) requires a determination of whether 

the child suffered actual physical, mental, or emotional harm or 

whether the conduct exposed the child to an imminent risk of 

such harm. E.D.-O. argues that whether her conduct placed her 

child “in imminent danger of” physical, mental, or emotional 

harm must be assessed at the time the trial court conducts its 

fact-finding in the context of a complaint filed by the Division 

pursuant to Title 9, or at the time the agency substantiates 

neglect or an ALJ concludes an appeal of a Division 

substantiation of neglect. In other words, E.D.-O. contends 

that in a case in which no actual harm occurs to the child, the 

focus of the risk of harm is not at the time of the occurrence 

of the event that brought the child and the family to the 

attention of the Division, but at the time of fact-finding by 

the agency or an ALJ or a trial court. According to E.D.-O., 

the inquiry in a risk of harm case is whether the parent or 

caretaker’s conduct poses a current risk of imminent harm to the 

child. 

E.D.-O. presents, for the first time before this Court, her 

argument that whether her conduct exposed the child to an 

imminent risk of harm should be measured at the time of fact-
28

finding. We elect to address this interpretive issue due to the 

need to remand this matter to the OAL for a hearing. In 

instances in which the Court must engage in the interpretation 

of a statute, our fundamental task “is to discern and effectuate 

the intent of the Legislature.” Murray v. Plainfield Rescue 

Squad, 210 N.J. 581, 592 (2012). We commence our inquiry with 

the plain language of the statute, to which we accord its 

ordinary meaning. DiProspero v. Penn, 183 N.J. 477, 492 (2005).

“If the Legislature’s intent is clear from the statutory 

language and its context with related provisions, we apply the 

law as written.” Shelton v. Restaurant.com, 214 N.J. 419, 429 

(2013). We turn to legislative history and other intrinsic 

tools to identify legislative intent when the statutory language 

is ambiguous, is at odds with the general statutory scheme, or 

the plain language leads to a result at odds with the public 

policy objective of the statute. Wilson ex rel. Manzano v. City

of Jersey City, 209 N.J. 558, 572 (2012). 

The text of N.J.S.A. 9:6-8.21(c)(4)(b) is designed to 

capture grossly negligent conduct that has harmed or poses a 

risk of imminent harm to a child. When the child has not 

suffered actual harm, the use of the present tense “is” can be 

interpreted to focus the fact-finder on the conduct at the time 

of the incident, in order to evaluate what could have occurred 

but for certain fortuitous circumstances. The use of the verb 
29

“is” can also be interpreted as requiring the fact-finder to 

concentrate on the risk of harm posed to the child at the time 

of formal fact-finding. The use of the verb “is” can just as 

likely be interpreted to require the fact-finder to evaluate the 

risk of harm to the child at the time of the event, at the time 

of fact-finding, and at the time a court fashions a remedy to 

prevent future harm. We therefore conclude that the use of the 

present tense in this definition that encompasses incidents of 

actual harm and risk of harm is not dispositive.

Our next inquiry is whether E.D.-O.’s position is 

consistent with the legislative history of Title 9. N.J.S.A.

9:6-8.21(c)(4)(b) is part of an extended definition of “abused 

or neglected child.” It, in turn, is part of an act originally 

adopted in 1974 and amended several times over the years. L.

1974, c. 119. Codified at N.J.S.A. 9:6-8.21 to -8.73, the Act 

governs actions filed by the Division to redress conduct by 

parents or guardians that causes abuse or neglect to children 

under eighteen years of age. The overriding purpose of the 

statute is “‘to assure that the lives of innocent children are 

immediately safeguarded from further injury and possible death 

and that the legal rights of such children are fully 

protected.’” State v. P.Z., 152 N.J. 86, 96-99 (1997) (quoting 

N.J.S.A. 9:6-8.8); accord N.J. Div. of Youth & Family Servs. v. 

R.D., 207 N.J. 88, 109 (2011). It has been noted that, in 
30

focusing on the risk of harm as well as actual harm to a child 

from grossly negligent conduct of a parent or guardian, the 

Legislature sought to squash the notion of a “free pass” if the 

child did not suffer actual harm. See D.M.H., supra, 161 N.J.

at 383 (“Courts need not wait to act until a child is actually 

irreparably impaired by parental inattention or neglect.”) 

Thus, we conclude that the textual analysis advanced by E.D.-O. 

is simply out of step with the legislative intent of the 

statute.

E.D.-O.’s approach deviates from several opinions of this

Court and the Appellate Division. In G.S., supra, the Court 

addressed the “failure to exercise a minimum degree of care” 

language of N.J.S.A. 9:6-8.21(c)(4)(b). 157 N.J. at 177-82. 

The Court declared that “the phrase ‘minimum degree of care’ 

refers to conduct that is grossly or wantonly negligent, but not 

necessarily intentional.” Id. at 178. Willful or wanton 

conduct is “done with the knowledge that injury is likely to, or 

probably will, result.” Ibid. 

In G.S., a caretaker administered an entire bottle of 

medication to a child. Id. at 168. When his mother returned to 

pick up her child, he was semi-conscious. Ibid. When the child 

arrived at the hospital, he was “lethargic and pale,” and “his 

heart rate was plummeting.” Ibid. Although he suffered no 
31

permanent harm, he remained hospitalized for forty-eight hours. 

Ibid. 

The Court concluded that there was sufficient evidence to 

support a finding of neglect by the caretaker. Id. at 182. In 

so holding, the Court focused on the caretaker’s conduct at the 

time she administered the medication. Ibid. To be sure, the 

physical manifestations of the overdose and the need for 

hospitalization may classify G.S. as an actual harm case, but 

the Court highlighted a “wide range of harmful conduct that all 

reasonable persons would characterize as neglect.” Id. at 180. 

Among those instances of harmful conduct is leaving a two-yearold alone in a house, id. at 180-81, even though no actual harm 

befell the child. Finally, the Court directed that

[w]hether 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 . . . . We 

simply remind [the Division] and the courts 

that the inquiry should focus on the harm to 

the child and whether that harm could have 

been prevented had the guardian performed some 

act to remedy the situation or remove the 

danger.

[Id. at 181-82.]

T.B., supra, a case in which no actual harm befell the 

unattended child, applied the standard established in G.S. and

followed the Court’s admonition that the neglect analysis must 

focus on what the parent did or could have done to remove the 
32

danger to the child created by the parent’s conduct. 207 N.J.

at 309-10. The Court focused solely on the mother’s acts and 

omissions on the night she left her four-year-old son 

unattended. Ibid. 

Similarly, the Appellate Division used the G.S. standard 

and analytical paradigm to affirm a finding that a father 

neglected his children by allowing their intoxicated mother to 

drive them home from a family vacation. Div. of Child Prot. & 

Permanency v. J.A., 436 N.J. Super. 61, 68-69 (App. Div. 2014). 

Focusing on the risk of harm to the children at the time he 

permitted an intoxicated person to drive a car occupied by 

children, the appellate panel concluded that “no reasonable 

person could fail to appreciate the danger of permitting 

children to ride in a motor vehicle driven by an inebriated 

driver.” Ibid. The panel further concluded that the father was 

grossly negligent “in failing to protect the children from the 

imminent risk of harm.” Id. at 69-70. 

Thus, the position advanced by E.D.-O. to measure risk of 

harm to a child due to a parent’s act or failure to act is out

of step with both the legislative purpose of the statute and 

this Court’s interpretation of the statute, specifically 

N.J.S.A. 9:6-8.21(c)(4)(b). Applied strictly, E.D.-O.’s focus 

on the risk the parent poses to a child at the time the incident 

is reviewed by a fact-finder has the obvious potential to
33

overlook conduct, even aberrational conduct, that had the clear 

capacity to produce a catastrophic result. Such an approach 

contravenes the legislative determination that child protective 

services and a court may intervene before a child experiences 

actual harm. 

Focusing on a parent’s conduct at the time of the incident 

to determine if a parent created an imminent risk of harm to a 

child does not preclude ever considering the risk of harm posed 

by a parent at the time of a hearing. Indeed, the statute 

contemplates not only a fact-finding hearing, but also a 

dispositional hearing. N.J.S.A. 9:6-8.47. The myriad 

dispositions available to the trial court after it enters a 

finding of abuse or neglect are fashioned based on current 

circumstances. For example, N.J.S.A. 9:6-8.50(e) expressly 

permits a trial court to suspend a dispositional hearing 

indefinitely to permit the Division to report the current status 

of the parent and child and whether any further services or 

supervision are required.

VI.

A child or a family may come to the attention of the 

Division in various circumstances. The police may respond to a 

call from a family member or neighbor expressing concerns about 

the well-being of a child, as in T.B.; a hospital may call the 

Division to report suspected child abuse or neglect, as in A.L.;
34

a school official may call the Division to recount a student’s 

report of physical or emotional abuse or neglect, as in M.C.; or 

police or security personnel may encounter an unattended child 

in a car, as in G.R. and this appeal. If the Division 

determines that the circumstances warrant a substantiation of 

neglect,4 the parent or caretaker may seek review of that 

determination. Following that appeal, the Director of the 

Division reviews the record and issues a final determination, 

which is appealable as of right to the Appellate Division. R.

2:2-3(a)(2).

The Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 

to –24, governs rulemaking by State agencies and provides basic 

ground rules for the conduct of administrative hearings in 

contested matters within an agency’s area of responsibility. 

See also N.J.S.A. 52:14F-1 to -23 (establishing independent OAL 

for independent fact-finding in administrative disputes). A 

contested case commences when an agency renders a decision and a 

person seeks review of the decision. N.J.S.A. 52:14B-2(b). The 

agency must first determine whether the request for review 

 

4 N.J.A.C. 10:120A-1.3(a) defines “substantiated” as “a finding 

when the available information, as evaluated by the child 

protective investigator and supervisor, indicates by a 

preponderance of the evidence that a child is an abused or 

neglected child as defined in N.J.A.C. 10:133-1.3 because the 

child victim has been harmed or placed at risk of harm by a 

parent or guardian.”
35

constitutes a contested case. If so, the matter is forwarded by 

the agency to the OAL. The OAL will assign the matter to an ALJ

and schedule a hearing. 

N.J.S.A. 52:14B-2(b) defines “contested case” as 

a proceeding . . . in which the legal rights, 

duties, obligations, privileges, benefits or 

other legal relations of specific parties are 

required by constitutional right or by statute

to be determined by an agency by decisions,

determinations, or orders, addressed to them 

or disposing of their interests, after 

opportunity for an agency hearing. 

N.J.A.C. 1:1-2.1 emphasizes that a contested case is an 

adversary proceeding and “must be designed to result in an 

adjudication concerning the rights, duties, obligations, 

privileges, benefits or other legal relations of specific 

parties over which there exist disputed questions of fact, law 

or disposition relating to past, current or proposed activities 

or interests.”

If a matter does not meet the APA definition of a contested 

case, the matter is an “uncontested case.” 37 New Jersey 

Practice, Administrative Law and Practice § 5.15, at 254 (Steven 

L. Lefelt et al.) (2d ed. 2000). The agency can retain the 

matter and dispose of the request for review as it considers 

appropriate. Ibid. However, an agency head may request the OAL 

to appoint an ALJ “to conduct an uncontested case.” N.J.A.C.

1:1-21.1(a). 
36

The Division has promulgated rules governing dispute 

resolution, see generally N.J.A.C. 10:120A, which are designed 

to “describe the preliminary efforts provided by the Division to 

resolve disputes regarding . . . [a] finding of substantiated 

child abuse or neglect made by the Division.” N.J.A.C. 10:120A1.2(a)(2). The rules also describe the procedure for requesting 

formal resolution through the OAL. N.J.A.C. 10:120A-1.2(c).

The Administrative Hearings Unit (AHU) is required to transmit 

to the OAL a request “by a perpetrator of child abuse or 

neglect” to review a substantiated finding of abuse or neglect, 

N.J.A.C. 10:120A-4.3(a)(2), unless the AHU has determined to 

summarily dispose of the request to dispute such a finding,

N.J.A.C. 10:120A-4.3(c)(3). The Division may elect to invoke 

the motion for summary disposition procedure when the Director 

of Legal Affairs or his designee, in consultation with a 

representative of the Attorney General’s Office, determine that 

there are no material facts in dispute. N.J.A.C. 10:120A4.2(b).

Once that determination has been made, the appeal is 

transmitted to the Attorney General’s Office “for assignment for 

preparation of the Motion for Summary Disposition.” N.J.A.C.

10:120A-4.2(b)(1). When the motion is filed, the appellant has 

ten days to file exceptions. N.J.A.C. 10:120A-4.2(c)(1). If 

the agency head or designee determines that there are no 
37

material facts in dispute, the Commissioner may deny the request 

for administrative review and determination as to whether the 

substantiation of neglect is consistent with governing law, 

regulations, and agency policy. N.J.A.C. 10:120A-4.2(d). If 

the agency head determines that material facts are in dispute, 

the request for an administrative hearing will be granted and 

the AHU will transmit the matter to the OAL. N.J.A.C. 10:120A4.2(e). 

In essence, the Division has imported the summary 

disposition procedure utilized by the OAL, see N.J.A.C. 1:1-

12.5, to perform its threshold function of identifying an appeal 

that requires reference to the OAL. Given the APA’s definition 

of a “contested case,” N.J.S.A. 52:14B-2(b), we question whether 

this two-step procedure was ever contemplated by the APA or is 

compliant with the APA’s overall intent to allow citizens the 

opportunity to fully and fairly contest administrative agency 

determinations that are grounded in factual applications of an 

agency’s enabling statute. This two-step procedure may have 

also contributed to the wholly unacceptable time it has taken in 

some instances to dispose of appeals from substantiation 

decisions by the Division.

VII.

Any allegation of child neglect in which the conduct of the 

parent or caretaker does not cause actual harm is fact-sensitive 
38

and must be resolved on a case-by-case basis. The antithesis of 

a case-by-case review is an agency determination that certain 

conduct poses an imminent risk of physical, emotional, or mental 

harm to a child without regard to the circumstances at the time 

of the conduct. The treatment of this matter, as well as others

discussed in this opinion, evinces a proclivity by the Division 

to apply a categorical rule that any parent or caretaker, who 

leaves a young child unattended for any length of time, 

particularly in a motor vehicle, has failed to exercise a 

minimum degree of care that places the child in imminent danger 

of impairing that child’s physical, emotional, or mental wellbeing. Yet, in all but one of the cases discussed involving an 

unattended child, see G.R., supra, 435 N.J. Super. at 401-02,

the parent or caretaker received an evidentiary hearing before 

an ALJ, see R.R., supra, 436 N.J. Super. at 55-56; J.L., supra, 

436 N.J. Super. at 164-65, or the trial court conducted an 

evidentiary hearing to adjudicate a complaint filed by the 

Division pursuant to N.J.S.A. 9:6-8.21 to -8.73, see A.R., 

supra, 419 N.J. Super. at 540. In the one exception, G.R., 

supra, an appellate panel held that the agency erred by 

proceeding summarily. 435 N.J. Super. at 399. We have

expressly disapproved and continue to disapprove of the 

Division’s resort to a categorical approach to this subset of 

cases.
39

To be sure, E.D.-O. filed a cross-motion for summary 

disposition in response to the motion filed by a deputy attorney 

general. The record supported a determination that no material 

fact was disputed only if a categorical rule applied to 

unattended children cases. E.D.-O.’s submission emphasized the 

aberrational nature of the single incident. In short, the 

essence of E.D.-O.’s position was that the totality of the 

circumstances precluded a finding that she had acted in any way 

that created an imminent and substantial risk of harm to her 

sleeping toddler.

This Court and the Appellate Division have identified 

circumstances when a child has been left unattended that may 

compel a finding of inattentiveness or even negligent conduct, 

but certainly do not rise to the level of grossly negligent 

conduct. For example, in G.R., supra, the Appellate Division 

identified seven circumstances that should be considered in 

evaluating a parent’s conduct in such situations. 435 N.J. 

Super. at 399. Those factors included the distance between the 

store and the parked car, the mother’s ability to keep the car 

in sight, how long the car was out of view, how long the child 

remained unattended, and any extenuating circumstances. Ibid. 

We note that the weather on the day the child is left unattended 

and the ability of someone to enter the vehicle are also 

relevant considerations. In other words, when substantiation of 
40

neglect must be determined on a case-by-case basis, there is 

little room for disposition of an appeal of a substantiation of 

neglect through the agency’s self-devised summary disposition 

procedure.

E.D.-O.’s appeal from the Division’s substantiation of 

neglect should have been referred to the OAL. She should have 

had the opportunity to advance all of the circumstances 

surrounding the event. Those circumstances include but are not 

limited to the actual distance between the vehicle and the 

store, her ability to keep the vehicle in view, the length of 

time she left the child unattended, the number of vehicles and 

persons in the area, the ability to gain access to the interior 

of the car, and the temperature inside and outside the car.

We would be remiss if we did not comment on the excessive 

amount of time that elapsed between E.D.-O.’s initial appeal of 

the substantiation determination, her renewed appeal following 

dismissal of the Title 9 complaint, and the filing of the motion 

for summary disposition in the Division. The lapse of time is 

troubling. Approximately three years and four months elapsed 

before the motion was filed, and that appears to have been 

initiated by a notice of tort claim. No person who has been 

aggrieved by agency action should have to resort to such 

measures to have an appeal resolved.
41

No one -- parents, caretakers, or the public -- is served 

when an issue as important as whether an adult abused or 

neglected a child remains unresolved for years. Inordinate 

delay in resolving substantiation appeals also takes on the 

specter of the absurd when, as in this case, the child was 

nineteen months old at the time of the underlying event, four 

years old when the Director finally issued her decision, and 

will be almost eight years old when the matter is remanded for a 

hearing before an ALJ. 

Finally, we observe that whether a parent’s or caretaker’s 

conduct causes an imminent risk of harm is evaluated through the 

lens of the statutory standard as interpreted and applied by the 

Court, rather than through the lens of the consequences of a 

finding of neglect, specifically, enrollment in the Central 

Registry. Enrollment in the Registry is a consequence of a 

finding of abuse or neglect. N.J.S.A. 9:6-8.11. We are mindful 

of the consequences of enrollment in the Registry and the 

duration of those consequences. We are aware that for some 

acts, enrollment in the Registry may seem draconian. See W. 

Todd Miller, The Central Registry Statute for Abuse and Neglect 

Matters is Constitutionally Flawed, 8 Rutgers J.L. & Pub. Pol’y, 

651, 652 (2011). However, it is not the function of this Court 

to address those seeming excesses by distorting the analysis of 

the underlying conduct. The concerns addressed by E.D.-O. and 
42

others are best addressed by the Legislature and, perhaps, the 

Division.

VIII.

The judgment of the Appellate Division is reversed and the 

matter is remanded to the OAL for further proceedings consistent 

with this opinion. We do not retain jurisdiction.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, FERNANDEZ-VINA and SOLOMON join in JUDGE CUFF’s 

opinion.
SUPREME COURT OF NEW JERSEY

NO. A-109 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

DEPARTMENT OF CHILDREN AND

FAMILIES, DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Petitioner-Respondent,

v.

E.D.-O.,

Respondent-Appellant.

DECIDED August 20, 2015

Chief Justice Rabner PRESIDING

OPINION BY Judge Cuff (temporarily assigned)

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 7