Opinion
DOCKET NO. A-0942-14T4
10-05-2016
A.M.H. and G.L., Plaintiffs-Appellants, v. NEW JERSEY DIVISION OF CHILD PROTECTION and PERMANENCY, Defendant-Respondent.
Robert A. Vort, argued the cause for appellants. Kevin A. Terhune, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Terhune, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll and Sumners. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3782-11. Robert A. Vort, argued the cause for appellants. Kevin A. Terhune, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Terhune, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
The issue presented is whether defendant Division of Child Protection and Permanency (Division) is entitled to immunity under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, from a civil action by plaintiffs A.M.H. (Ann) and G.L. (George) arising from the termination of their parental rights to their daughter Clare. On reconsideration of defendant's summary judgment motion, the Law Division issued an order dismissing plaintiff's complaint. We conclude that the trial court's interpretation of the TCA to grant immunity to the Division was correct and therefore affirm.
Unfortunately, after submission of plaintiffs' brief on appeal, George passed away. To our knowledge, there have been no probate proceedings to appoint an administrator to prosecute this appeal on his behalf.
To preserve the minor child's anonymity, we identify her and her parents by the fictitious names used in N.J. Div. of Youth & Family Servs. v. A.M.H., Nos. A-0132-07, A-1926-07, A-2876-07 (App. Div. May 5, 2009) (slip op. at 2).
I.
The extensive factual background and procedural history in this dispute is detailed in our May 5, 2009 sixty-two-page unpublished opinion, where we reversed the termination of plaintiffs' parental rights based on the conclusion that "the trial judge heard the evidence and made findings of fact that we have found unsupported or not justifying termination of parental rights[,]" N.J. Div. of Youth & Family Servs. v. A.M.H., Nos. A-0132-07, A-1926-07, A-2876-07 (App. Div. May 5, 2009) (slip op. at 62). We further
Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law." Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).
remanded to the trial court to fashion reinstatement of visitation and consideration of a plan for reunification that will be in Clare's best interest, including therapy for [plaintiffs], individually, and jointly, as required, for [plaintiffs] and Clare, and such further services as are necessary to ensure that the trauma to Clare of separating from her foster parents will be minimized as much as possible.We only recite the facts and procedural history that are necessary for this decision.
Id. at 60-61.
Clare was removed from plaintiffs' custody on March 3, 2005, when she was just over five months old. Id. at 2, 6. That day, Clare was fastened into her car-seat in the back seat next to Ann, while George was driving. Id. at 4. Plaintiffs got into an argument, culminating in Ann pouring beer over George's head. Id. at 4-5. When George pulled the car over to clean himself off, Ann also exited the vehicle. Id. at 5. After returning to the car, George drove home with Clare, but left Ann at the side of the road. Id. at 4-5.
Following Ann's call to the police, George was soon pulled over. Id. at 5. Because he smelled of alcohol, the police officer administered a field sobriety tests to George. Ibid. Though George passed the tests, the officer noticed that Clare was not properly secured in her car seat, and brought both George and Clare to the police station. Ibid. At the station, George was subjected to a breathalyzer test which revealed that he was not intoxicated. Id. at 5-6.
After speaking to George and Ann, the police determined that the couple was not involved in a domestic violence situation. Ibid. Nevertheless, the Division was contacted, and through a series of misunderstandings and errors on the part of the responding Division worker, Clare was removed from plaintiffs' custody on an emergency basis pursuant to N.J.S.A. 9:6-8.29. Plaintiffs were both charged with abuse or neglect, N.J.S.A. 9:6-8.21(c), but were not advised that they had a right to the appointment of counsel if they lacked funds. A.M.H., supra, Nos. A-0132-07, A-1926-07, A-2876-07 (slip op. at 6).
During the March 7, 2005 trial, at which plaintiffs appeared without counsel, a Division worker and the Deputy Attorney General incorrectly asserted that George had been driving erratically, and the Division's previously-issued case plan required Clare to live with George's mother. Id. at 6-7. Although the judge acknowledged that neither Ann nor George was charged with domestic violence, and George was not charged with driving while intoxicated, the judge continued the removal of Clare from their custody. Id. at 8.
Over the next several months, plaintiffs participated in anger management programs, psychological and substance abuse evaluations, and weekly visitation with Clare. Ibid. Though some of these visits were less successful than others, no Division report ever reflected that either plaintiff exhibited inappropriate behavior. By this time, Clare was placed in long-term foster care. Ibid. Although the court had instructed the Division to look into either the paternal grandmother or aunt as caregivers, the Division failed to do so. Id. at 10.
On June 2, plaintiffs stipulated that their respective conduct on March 3 constituted abuse or neglect by exposing Clare to a risk of harm as defined in N.J.S.A. 9:6-8.21(c). Id. at 9. Visitation with Clare was continued, and plaintiffs were required to receive services. Id. at 8-9.
During the September 2005 compliance hearing, the Division failed to disclose the psychologist opined that George could serve as an independent caregiver of Clare, and that Ann did not pose an imminent threat to her daughter so long as she followed her prescribed treatment. Id. at 13. Thus, Clare remained in long-term foster care, and visitation with plaintiffs continued throughout 2005, 2006, and until November 16, 2007, when termination was ordered. Id. at 15, 28.
Though Ann tested positive for cocaine in September 2005, and for alcohol in December 2005, she continued to address her substance abuse by attending intensive outpatient treatment. Since then, Ann has not tested positive for drugs. George had never tested positive for drugs or alcohol.
Following our May 5, 2009 opinion reversing the termination of plaintiffs' parental rights and remand for a plan of reunification that would be in Clare's best interest, three different psychological examinations of Clare determined that she could not be reunited with plaintiffs without causing her great harm. Accordingly, on June 14, 2011, plaintiffs consented to the entry of a judgment for kinship legal guardianship (KLG), allowing plaintiffs visitation with Clare, but granting physical custody of the child to her foster parents with whom she had been residing since 2006.
Plaintiffs subsequently filed a civil complaint against the Division for wrongful retention of Clare, claiming that their "right to the care, custody and companionship of their daughter ha[d] been severely impeded by the conduct of [the Division]." Following discovery, the Division moved for summary judgment based on immunities under the TCA.
On July 24, 2014, the court entered an order and issued a written decision denying the motion. The court reasoned that plaintiffs showed "sufficient evidence to demonstrate that the actions of [the Division] ha[d] interfered with and violated their right to parent their child, therefore overcoming [the Division's] claim for qualified immunity." The court relied on our May 5, 2009 decision to support the finding that it was likely that the Division violated plaintiffs' rights to parent Clare, stating:
the opinion criticizes, among other things, the way in which [the Division] did not look for a relative with which to place the child, for not knowing that the [p]laintiffs were not required to live with plaintiff [George]'s mother, for not further investigating the limitations of plaintiff [George]'s mother [for placement], and for not refuting the allegation that [the Division] did not attempt to place the child with a blood relative. . . . [Even though the Appellate Division reversed the termination of their parental rights, it] was determined by mental health professionals that reunification with [p]laintiffs would be traumatic for the child, [and so plaintiffs] were not able to exercise their parental rights without causing harm to their child.
The Division filed a motion for reconsideration, alleging that the trial court misunderstood its arguments and misapplied the law. Specifically, the Division contended that it had not argued that it was entitled to qualified immunity, but to absolute immunity under the TCA. The Division also maintained that the court failed to consider immunity under the doctrine of quasi-judicial immunity, N.J.S.A. 59:2-3(b), immunity arising out of misrepresentations of Division workers, N.J.S.A. 59:2-1(a), and immunity for failure to enforce the law, N.J.S.A. 59:2-4.
On October 3, 2014, the trial court granted the Division's reconsideration motion and entered summary judgment dismissing the complaint. The court's written statement of reasons explained that the court had "failed to consider [the Division's] actual arguments set forth in its motion for summary judgment and the [c]ourt's analysis regarding [the Division's] immunity was misplaced." The court determined that despite the allegations that the Division's employees made misrepresentations, they acted within their authority, and the Division was entitled to absolute immunity under the TCA. This appeal followed.
II.
We are guided by well-established principles. We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). Thus, we consider, as the motion judge did, "'whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Id. at 406 (citation omitted). "If there is no genuine issue of material fact, we must then 'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citations omitted).
Plaintiffs contend that the Division did not plead absolute immunity from liability under the TCA for its actions. We disagree. In its second affirmative defense, the Division asserted, "[it] is immune from suit." In its third affirmative defense, the Division was more specific, contending:
The complaint and the proceedings resulting therefrom and any recovery resulting therefrom is barred, limited and/or controlled by all provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 through 59:12-3 inclusive, as if each section, provision, defense, and immunity
were listed herein separately, particularly, and at length.There is no question that such pleadings are sufficient to notify plaintiffs that the Division was asserting all immunities under the TCA.
Turning to the merits, plaintiffs cite to N.J.S.A. 59:9-3, which does not afford immunity for public employee conduct constituting malicious prosecution causing false arrest and false imprisonment. Plaintiffs argue that the Division's conduct did not satisfy the objective criteria for immunity because the Division and its workers did not act in good faith, and lied to the court in terminating plaintiffs' parental rights. Moreover, plaintiffs argue that, at best, the Division is entitled to qualified immunity only. We disagree with these contentions as well.
Under the TCA, state entities are generally immune from suit unless liability is expressly established by statute. See N.J.S.A. 59:2-1. The TCA specifically disclaims liability of public entities for "legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature." N.J.S.A. 59:2-3(b). In addition, with respect to public employees, the TCA provides that: "A public employee is not liable for an injury where a public entity is immune from liability for that injury." N.J.S.A. 59:3-1(c). Yet, immunity does not apply where the alleged misconduct "was outside the scope of [the public employee's] employment or constituted a crime, actual fraud, actual malice or willful misconduct." N.J.S.A. 59:3-14 (a).
In Delbridge v. Schaeffer, 238 N.J. Super. 323 (Law. Div. 1989), aff'd sub nom. A.D. v. Franco, 297 N.J. Super. 1 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994), cert. denied sub nom. Delbridge v. Franco, 513 U.S. 832, 115 S. Ct. 108, 130 L. Ed. 2d 56 (1994), the plaintiff-parents brought a civil lawsuit against the Division and individual DYFS employees after their parental rights to six children were terminated. Id. at 328-31. Given that the plaintiffs' claims arose out of the defendants' participation in a matter that was before the Family Part, the defendants were entitled to quasi-judicial absolute immunity. Id. at 340-42.
Although not binding on us, we find persuasive the Third Circuit's reasoning for affording immunity to Pennsylvania child welfare workers from a 42 U.S.C.A. § 1983 action in Ernst v. Child & Youth Servs., 108 F.3d 486 (3d Cir. 1997). The workers were "directly responsible for the recommendations made to the court in dependency proceedings." Id. at 496. The Third Circuit
"A child is 'dependent' under Pennsylvania law if he or she is "without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals." Ernst, supra, 108 F.3d at 489 n.3 (quoting 42 Pa. C.S.A. § 6302).
conclude[d] that the public policy considerations supporting absolute immunity for prosecutors are equally applicable to child welfare workers acting in a quasi-prosecutorial capacity in dependency proceedings. . . . Certainly, we want our child welfare workers to exercise care in deciding to interfere in parent-child relationships. But we do not want them to be so overly cautious, out of fear of personal liability, that they fail to intervene in situations in which children are in danger.
[Ibid.]
Here, plaintiffs argue that the termination of their parental rights was the result of the Division's false contentions before the Family Court. They argue that the Division misrepresented non-compliance with a pre-existing case plan requirement that the child lives with George's mother, that George was driving erratically when stopped by the police, and failed to advise plaintiffs they had a right to counsel. In these circumstances, we conclude that the Division is entitled to absolute immunity under N.J.S.A. 59:2-3(b) as the plaintiffs' claims arise from the Division's efforts to terminate their parental rights in a judicial proceeding. Moreover, there is no indication that the Division workers' conduct "was outside the scope of [their] employment or constituted a crime, actual fraud, actual malice or willful misconduct." N.J.S.A. 59:3-14(a).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION