[238 NJSuper Page 291] Plaintiffs allege that defendants conspired to deprive plaintiffs of their constitutional and civil rights and children by committing the following torts:
1. Abuse. 2. Acted as an Accessory. 3. Acted as an Accomplice. 4. Acted as an Advocate for DYFS, while depriving his clients and plaintiffs or rights. 5. Battery. 6. Calumny. 7. Breach of Peace. 8. Colusions. 9. Connivances. 10. Concealments Illegally. 11. Conspiracy. 12. Deceits. 13. Defamations. 14. Defrauds. 15. Defaults. 16. Discriminations. 17. Disfranchises. 18. Duresses -- Trying to force plaintiff to admit to something he did not do, with threats. 19. Deprived and deceited plaintiffs of due-process rights. 20. Deprived plaintiffs of equal protection of law and rights by frauds. 21. Extortions. 22. Frauds. 23. False Representations. 24. False Pretenses. 25. Infractions unlawfully. 26. Infringements of plaintiff's rights. 27. Illegal intent. 28. Malfeasances. 29. Malice. 30. Malicious Prosecutions. 31. Misfeasances. 32. Misrepresentations. 33. Legal Malpractice. 34. Unlawful Motives. 35. Nonfeasances. 36. Turpitudes. 37. Besides the violations of the statutes and rights. . . .
Defendants move for summary judgment to dismiss the complaints against them or, in the alternative, to dismiss the complaints for failure to state a claim upon which relief can be granted.
The issues involved are (1) whether the Office of the Public Defender, Law Guardian Program and its assistant deputy public defender have absolute immunity from suit by aggrieved parents whose children were placed with DYFS; (2) whether designated (pool) attorneys have absolute or qualified immunity from suit by their clients; (3) whether plaintiffs' complaints, including allegations of legal malpractice and conspiracy, against their pro bono attorneys set forth claims upon which relief can be granted; and (4) whether designated (pool) attorneys are "public employees" within the meaning of the Tort Claims Act, N.J.S.A. 59:1-3, and thereby entitled to indemnification by the State.
The court holds that both the law guardian program and its law guardian have absolute immunity from suit because they are court officers exercising judicial functions. Designated (pool) attorneys have immunity from suit except for legal malpractice, conspiracy or other intentional misconduct. They are "public employees" subject to provisions of the Tort Claims Act, and therefore, entitled to indemnification by the State. Plaintiffs' complaints alleging legal malpractice against their pro bono attorneys do not set forth claims upon which relief
can be granted. Plaintiffs' complaints against their court-appointed attorneys alleging a common law and civil rights conspiracy without setting forth any overt act are merely conclusory, and therefore, fail to state claims upon which relief can be granted.
Plaintiffs, Adolph and Jill Delbridge, filed six complaints*fn1 against the Office of the Public Defender, Law Guardian Program, an attorney with the law guardian program and two attorneys who served as designated counsel for plaintiffs, numbered as follows:
1. Thomas Hartley and the Office of the Public Defendant, Law Guardian Program.
4. Thomas Hartley and Office of the Public Defender, Law Guardian Program.
5. Jill Delbridge v. Joseph Contaldi.
6. Adolph Delbridge v. Joseph Apicella.
Defendant, Office of the Public Defender, Law Guardian Program is charged with the responsibility of acting as law guardian to children in child abuse or neglect proceedings. The law guardian is appointed by the court. N.J.S.A. 9:6-8.23. The parents, if indigent, enjoy the right to appointment of counsel for these proceedings. N.J.S.A. 9:6-8.23, -8.43.
Plaintiffs' seven children were removed from their home in Hudson County, pursuant to statute and court order, in the matters of which they complain, for reasons of child neglect and abuse.
In those proceedings, Thomas Hartley, an Assistant Deputy Public Defender with the Law Guardian Program of the Office of the Public Defender represented the interests of the children. Adolph and Jill Delbridge, as indigents, each had counsel appointed through the Office of the Public Defender for these proceedings. Because a conflict of interest would arise if staff attorneys represented plaintiffs, attorneys were appointed by the Public Defender, Alfred A. Slocum, through Hudson County Regional Office, from a list of designated counsel (or pool attorneys) pursuant to specific statutory authority. N.J.S.A. 2A:158A-9. Joseph Apicella was appointed to represent Adolph Delbridge, and Joseph Contaldi was appointed to represent Jill Delbridge.
The four complaints against the Office of the Public Defender, Law Guardian Program, and Thomas Hartley fall into two categories: the first two concern the removal of five children from plaintiffs' home on or about January 25, 1985. Plaintiffs allege that the law guardian program, in spite of their complaints, failed to supervise and otherwise insure that Thomas Hartley did his job properly. As to Hartley, these two complaints allege, inter alia, that, he violated the constitutional and civil rights of plaintiffs and their children, apparently, on equal protection grounds because plaintiffs are an interracial couple; he violated the attorneys' and prosecutors' code of conduct and state laws; he failed to properly represent the children; and he conspired with DYFS and the Attorney General against plaintiffs by suppressing evidence, perjury, malice and malicious prosecution. Hartley is also alleged to have kept plaintiffs' children from them and to have placed them up for adoption.
The third and fourth complaints against the law guardian program and Hartley concern the removal from plaintiffs' home of their seventh child on December 10, 1987, and subsequent events. Again, plaintiffs allege that the law guardian program failed to supervise Hartley and that Hartley violated the constitutional and civil rights of plaintiffs and their child. They also
allege that their children were neglected in foster care and that Hartley kept this information from plaintiffs. The same allegations concerning malicious prosecution and conspiracy, etc., are made against Hartley in the second two complaints as were made in the first two complaints.
Damages in the millions are sought from both defendants for "mental and physical harm" because plaintiffs have been deprived of "children, home, relationship and proper court relationship."
The last two complaints were filed against Joseph Contaldi, who represented Jill Delbridge, and Joseph Apicella, who represented Adolph Delbridge in the underlying child abuse/neglect proceedings. These complaints, which are virtually identical, allege that counsel conspired with the court and DYFS to protect the court and DYFS. They also allege improper representation and intentional legal malpractice. Unspecified damages are sought against each defendant because plaintiffs "suffered damages, losses and deprivation."
In response to defendants' motion to amend answers, plaintiffs filed a response in which they invoke, as to defendant Hartley, 42 U.S.C.A. § 1983 and as to defendants Apicella and Contaldi, 42 U.S.C.A. §§ 1983, 1985 and 1986 and 18 U.S.C.A. §§ 241-242.
A brief review of the underlying proceedings which form the basis of the Delbridge complaints is necessary for an understanding of the instant matters.
On January 25, 1985, the Attorney General, on behalf of the Division of Youth and Family Services (DYFS), filed a complaint in Superior Court, pursuant to N.J.S.A. 30:4C-12 and 9:6-8.21 et seq., concerning the protection of the five children of Adolph and Jill Delbridge. On the same day, the court ordered the removal of the children from plaintiffs' home and placed them in the custody of DYFS. In the same order, the court appointed the Public Defender as law guardian for the children.
Adolph Delbridge, on April 10, 1985 pled guilty to one count of an indictment charging him with a violation of N.J.S.A. 2C:24-4, endangering the welfare of one of his children.
Fact-finding hearings were held before Judge Hornstein to determine whether the children were abused or neglected by either or both parents. In an opinion dated October 23, 1986, Judge Hornstein found that plaintiffs' five children were neglected and abused within the meaning of N.J.S.A. 9:6-8.21c. and set the matter down for a dispositional hearing. The sixth child of the Delbridges became the subject of a DYFS protection complaint in November 1986 and on December 17, 1986, the child was placed in the custody of DYFS. That matter was consolidated with the original proceeding. On April 20, 1987, DYFS filed a complaint seeking termination of the parental rights of Adolph and Jill Delbridge. The law guardian program does not represent children in termination proceedings; however, Hartley continued as law guardian for the six children at the court's request until a guardian was appointed for the termination proceedings. The representation of plaintiffs by Apicella and Contaldi ended in June 1987 when the complaint was filed to terminate parental rights. The Department of the Public Advocate, Office of the Public Defender, does not represent parents in termination proceedings; rather, representation is provided by the private bar.
Upon DYFS's complaint, Judge Hornstein ordered the seventh child of Adolph and Jill Delbridge removed from their home in December 1987, and custody of the child was placed with DYFS. Hartley was assigned by the court to represent this child, who has now been returned to plaintiffs' custody.
Plaintiffs herein, in a collateral attack of these underlying proceedings, have filed other complaints alleging serious violations of plaintiffs' rights against a multitude of defendants, including Governor Thomas Kean, Attorney General Cary Edwards, three Hudson County judges, DYFS, attorneys, physicians, police and many other persons.
PLAINTIFFS ARE COLLATERALLY ESTOPPED FROM ARGUING THE MERITS AND/OR EFFICACY OF THE DECISION TO REMOVE THEIR CHILDREN.
Plaintiffs' response to this motion contains extensive reference to the underlying protective services and guardianship proceedings conducted pursuant to Title 9 and Title 30 before Judge Hornstein, which cannot be used to relitigate, in this forum, the outcome of the earlier proceedings which found Adolph and Jill Delbridge responsible for neglecting and abusing their six children and which ultimately terminated their parental rights.
The doctrine of collateral estoppel applies, and reconsideration in this case of the multitude of facts now presented by plaintiffs is legally impermissible. Collateral estoppel precludes a party from relitigating facts which that party actually litigated (or could have litigated) in an earlier proceeding and which were determined by a court having jurisdiction of the matter. Mazzilli v. Accident, etc., Casualty Ins. Co., 26 N.J. 307, 314-316, 139 A.2d 741 (1958); United Rental Equipment Co. v. Aetna Life and Cas. Ins. Co., 74 N.J. 92, 101, 376 A.2d 1183 (1977). In United Rental, the Court quoting from the Restatement, Judgments 2d, § 88, stated:
A party precluded from relitigating an issue with an opposing party, [under the principle of res judicata ], is also precluded from doing so with another person unless he lacked full and fair opportunity to litigate the issue in the first action or unless other circumstances justify affording him an opportunity to relitigate the issue. [74 N.J. at 101, 376 A.2d 1183]
Plaintiffs have submitted voluminous "facts" and attached numerous documents to their brief, all of which concern the underlying proceedings. For example, the psychological and sociological evaluations of plaintiffs have been submitted to the court. Essentially, they have asked this court to review those and other documents and make a finding that the removal of their children from their home, as well as the family court determinations, were defective. Plaintiffs deny this by alleging they are suing based upon the lies and conspiracy of defendants.
Such a review can be pursued only in the Appellate Division.*fn2 Plaintiffs had a "full and fair opportunity" to litigate those facts and issues in the earlier proceedings. Conservation of judicial resources and finality of judgments mandate that the doctrine of collateral estoppel be invoked.
DEFENDANTS, OFFICE OF THE PUBLIC DEFENDER, LAW GUARDIAN PROGRAM AND THOMAS HARTLEY OWED NO DUTY TO PLAINTIFFS NOR CAN PLAINTIFFS RAISE ALLEGED DEPRIVATION OF THEIR CHILDREN'S RIGHTS OR SUE ON THEIR BEHALF.
Thomas Hartley and the law guardian program were appointed by the court to represent the best interests of plaintiffs' children. N.J.S.A. 9:6-8.43. They owed no duty to plaintiffs since their sole legal responsibility was to the children. There can be no tort liability where there is no duty of care owed to the plaintiff. Prosser and Keeton, The Law of Torts (5 ed. 1984), § 53; Strachan v. John F. Kennedy Memorial Hospital, 209 N.J. Super. 300, 315-316, 507 A.2d 718 (App.Div.1986).
Plaintiffs allege in complaint no. 1 that defendants, Hartley and the law guardian program violated their children's civil and constitutional rights. In other complaints, plaintiffs allege that these defendants did not fulfill their duties to protect the children or represent their interests. By virtue of the orders of Judge Hornstein plaintiffs did not, at the time of these alleged deprivations, have control or custody of their children; rather, DYFS had sole control and responsibility. Plaintiffs may not raise allegations or obtain relief as to their children. The rules of court require that children must be represented in a lawsuit by a guardian ad litem appointed by the court. R. 4:26-2(a) Implicit in the rule is a requirement that
the proposed guardian certify that he has no interest in the litigation (or a conflict of interest). R. 4:26-2(b)(2).
A clear conflict of interest was present in the prior proceedings as the children had been removed from parental custody due to a finding of child abuse and neglect by plaintiffs. Thus, plaintiffs cannot maintain a lawsuit on behalf of their children.
Therefore, the complaints to the extent plaintiffs seek relief on behalf of the children are dismissed with prejudice.
DEFENDANTS, LAW GUARDIAN PROGRAM AND THOMAS HARTLEY HAVE ABSOLUTE IMMUNITY FROM SUIT.
Plaintiffs allege in the complaints and certifications, in the broadest conclusory terms, that defendant Thomas Hartley failed in his duty as law guardian and that he conspired with the court, DYFS and unnamed others to deprive plaintiffs of their children. Plaintiffs further allege malicious prosecution, perjury, malice and discrimination. As against the Office of the Public Defender, Law Guardian Program, plaintiffs apparently allege improper supervision.
Judges acting within the scope of their official duties are absolutely immune from liability for damages under 42 U.S. C.A. § 1983. Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). Similarly, quasi -judicial officials acting within the scope of their official duties are absolutely immune. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) (state prosecuting attorney); Bauers v. Heisel, 361 F.2d 581 (3 Cir.1966), cert. den. 386 U.S. 1021, 87 S. Ct. 1367, 18 L. Ed. 2d 457 (1967) (parole board members); Bethea v. Reid, 445 F.2d 1163 (3 Cir.1971) (assistant U.S. Attorney); Brown v. Joseph, 463 F.2d 1046 (3 Cir.1972) (county public defender).
Both of these defendants have absolute immunity from suit. The Office of the Public Defender, Law Guardian Program
was appointed by the court, Judge Hornstein, to act as the attorney for the children pursuant to N.J.S.A. 9:6-8.43. Thomas Hartley was assigned the responsibility by the office. In light of this delegation of responsibility, both defendants are cloaked with the long-standing immunity afforded judges by state and federal law. The New Jersey Supreme Court in Cashen v. Spann, 66 N.J. 541, 334 A.2d 8 (1975), cert. den. 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975), on remand 143 N.J. Super. 560, 364 A.2d 21 (Law Div.1976), aff'd on other grounds 150 N.J. Super. 500, 376 A.2d 186 (App.Div.1977), rev'd on other grounds 77 N.J. 138, 389 A.2d 969 (1978), discussed the question of judicial immunity, citing a long line of authority beginning in 1818 which has afforded judges absolute immunity in the discharge of their duties. Judges and other public officials enjoy judicial immunity to a federal civil rights action claim for money damages in an action arising out of a custody dispute. 42 U.S.C.A. § 1983. DiRuggiero v. Rodgers, 743 F.2d 1009 (3 Cir.1984). This has been so for fundamental reasons which go to the heart of our system of government. The Cashen court quoted Little v. Moore, 4 N.J.L. 84, 85 (Sup.Ct.1818), to explain those reasons:
It is a principle which lies at the very foundation of a free, vigorous and independent administration of justice. It may be traced from the earliest periods of our judicial history down to the present day. * * * Indeed, were we to subject the judges of the established courts of justice to private prosecutions whenever the passions or resentments of disappointed suitors might dictate that measure, we should subdue their independence and destroy their authority. [ Cashen v. Spann, supra, 66 N.J. at 545-546, 334 A.2d 8.]
The Cashen Court also noted that court officers exercising judicial functions are absolutely immune. In O'Regan v. Schermerhorn, 25 N.J.Misc. 1, 50 A.2d 10 (Sup.Ct.1946), the court held that a grand jury, at common law, acts as an arm of the court and enjoys the same immunities as the court. So long as a judicial officer has jurisdiction of the parties, the immunity is absolute, even if there are allegations of malice or corruption. 25 N.J.Misc. at 19-20, 50 A.2d at 20-21.
There is no doubt that in the instant matter the Office of the Public Defender, Law Guardian Program and Thomas Hartley were officers of the court, having been appointed by Judge Hornstein to represent the interests of the Delbridge children.
Although there are no reported New Jersey cases on this issue, two federal circuit courts of appeal have specifically addressed the question of the application of judicial immunity to law guardians. In re Scott County Master Docket, 618 F. Supp. 1534, 1570-1572 (D.C.Minn.1985), aff'd Myers v. Morris, 810 F.2d 1437, 1465-1468 (8 Cir.1987); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6 Cir.1984). In both cases, the court found that law guardians should be granted absolute judicial immunity because ...