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America Mercado and Gilberto Mercado v. State

Decided: July 12, 1985.

AMERICA MERCADO AND GILBERTO MERCADO, HUSBAND AND WIFE
v.
STATE OF NEW JERSEY



Palese, J.s.c.

Palese

Novel issues have been presented to the court by the State's motion for summary judgment. Plaintiff has instituted suit maintaining a cause of action under the Tort Claims Act.

Some procedural history is necessary to resolve the issues presented. While there is no stipulation of the facts, there is no material dispute with respect to the same.

Norma and Joselito Mercado, twins, were born to Spanish-speaking parents on February 12, 1973. In April 1973 the twins, having been hospitalized for malnutrition and neglect, were removed from the Mercados, together with the eight other Mercado children. The twins were then placed with Richard and Margaret Miller, an English-speaking couple, for foster care. In July 1973 the eight other children were returned to the Mercado home. The twins were never returned. On January 29, 1979, the Child Placement Review Board reported its recommendations that the continued placement outside of the home was in the children's best interests and the placement plan was appropriate for the children's needs.

After this decision, Division of Youth and Family Services (D.Y.F.S.) planned to return the twins to their parents in June 1979. In May 1979 Honorable Robert W. Page, Camden County Juvenile and Domestic Relations Court Presiding Judge, ordered continued placement of the twins with the Millers.

On June 11, 1979, Richard and Margaret Miller filed a complaint seeking custody; a complaint for adoption was also filed in Chancery. The Chancery Court ordered consolidation of the action and held that the adoption proceeding be stayed pending determination of the custody action in Juvenile & Domestic Relations Court.

The custody complaint was specially assigned to Honorable Mary Ellen Talbott and was heard on March 23, 1981 -- all parties being properly represented by counsel. D.Y.F.S. had previously had its complaint dismissed but was permitted to present witnesses at the trial. In concluding her lengthy and complete opinion, Judge Talbott wrote: "this court finds that clear and convincing evidence has been presented that Norma and Joselito would suffer psychological damage if returned to the Mercados." Parental rights of the Mercados were terminated and guardianship was granted to the Millers. The counterclaim of the Mercados for custody was denied.

An appeal was filed with the Appellate Division, which affirmed the opinion of the trial court. On March 28, 1983, the Mercados' petition for certification was denied by the Supreme Court.

On June 24, 1983, the Mercados filed a Notice of Tort Claim alleging ". . . the negligent actions of the State of New Jersey in the placement, continued placement and manner of placement of these two children in a foster home."

This complaint was then filed alleging as follows:

17. As a direct and proximate result of the conduct of the defendants as described herein, the plaintiffs suffered severe emotional stress, ...


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