Opinion
DOCKET NO. A-0417-13T4
03-24-2015
A.H., as Administrator Ad Prosequendum for the Estate of E.C. and A.H., individually, Plaintiffs-Appellants, v. J.L., D.C., NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, NEW JERSEY DEPARTMENT OF HUMAN RESOURCES, NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, EILEEN CRUMMY, ELIZABETH MCGOVERN, SUZANNE BREWEN-ALVINO, ELAINE SPEVAK, KERRY BRUMBAUGH, JAMES VALENTINE and JENNY PAEZ, Defendants-Respondents.
Patti & Patti, attorneys for appellants (Jeffrey M. Patti, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter D. Wint, Assistant Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1856-10. Patti & Patti, attorneys for appellants (Jeffrey M. Patti, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter D. Wint, Assistant Attorney General, on the brief). PER CURIAM
Plaintiff, A.H. (Andrea or plaintiff), individually and in her capacity as administrator ad prosequendum of her late son's estate, appeals from orders dated May 3, 2013 and August 9, 2013, granting summary judgment dismissing her complaint against defendant New Jersey Department of Children and Families and several of its employees, and denying reconsideration. We affirm.
Because this case centers on complaints to, and investigations by, the Division of Child Protection and Permanency, we use pseudonyms for all of the family members to protect their privacy. See R. 1:38-3(d)(12). We have used the complete names of the State employee defendants in the caption, since the law does not require that we maintain their anonymity.
In summary, Andrea contended that the Division of Child Protection and Permanency (Division) and its employees were professionally negligent in failing to properly investigate and address the situation of Andrea's seventeen-year-old son, Ethan. Based on that same theory, she also asserted state civil rights claims under N.J.S.A. 10:6-2.
The agency was formerly known as the Division of Youth and Family Services.
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By way of brief background, following custody litigation between plaintiff and her former husband David, a Family Part judge had awarded David physical custody of Ethan. As a result, Ethan resided with David and David's significant other, Jolene, in her house. At some point, Jolene made a domestic violence complaint against David, who was incarcerated as a result. However, by his own expressed choice, Ethan continued to reside with Jolene. While he was residing there, Ethan died of a drug overdose.
Plaintiff asserts that Ethan was a troubled young man, who would have been better off living with her instead of with either David or Jolene. Plaintiff made several complaints to the Division concerning conditions at David and Jolene's household. The Division investigated and found no basis to intervene. In her Law Division action, plaintiff alleged that the Division should have done a more thorough investigation, and asserted that, but for the Division's negligence, Ethan would not have died.
In a cogent oral opinion issued on May 3, 2013, and supplemented in a second oral opinion on August 9, 2013, Judge Robert J. Brennan concluded that plaintiff needed an expert to prove her claims, and that her proposed expert witness had rendered a net opinion. The judge found that plaintiff's expert failed to set forth the standard of care applicable to the Division's investigation, and failed to address how the agency allegedly violated that standard of care. Instead, the judge found the expert simply asserted her personal opinions, untethered to any established standard of care. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). The judge also found that the named Division-employee defendants were entitled to immunity from plaintiff's civil rights claims because they were sued in their official capacities.
We review an order granting summary judgment de novo, using the same standard applied by the trial judge. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014). Thus, we determine whether there are material facts in dispute and, if not, whether viewing the facts most favorably to the non-moving party, the moving party is nonetheless entitled to judgment as a matter of law. Ibid.; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
After reviewing the expert report, we agree with Judge Brennan's analysis, and we affirm for the reasons stated in his opinions. Even assuming the facts to be as plaintiff asserted, defendants were still entitled to judgment as a matter of law because plaintiff did not produce a non-net expert opinion in support of her claims. See Davis, supra, 219 N.J. at 409-10; Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102-03 (App. Div. 2001). In light of that legal conclusion, the named Division employees were entitled to summary judgment whether they were sued in their official or individual capacities. Plaintiff's appellate arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION