On appeal from the Superior Court of New Jersey, Law Division, Monmouth County
Havey, Stern and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The New Jersey Division of Youth and Family Services (DYFS) administers the State's foster care program. N.J.S.A. 30:4C-26(a); N.J.A.C. 10:120-1.1, -1.2. Its efforts include providing financial help to foster parents to defray some of the costs of providing foster care. N.J.S.A. 30:4C-27, -29. At one time, DYFS paid for insurance to indemnify foster parents against financial losses from damage to their property negligently caused by their foster children. Subsequently, the insurance was replaced by a State-funded Liability Program for Foster Parents in place of the insurance. The present case requires us to decide the proper forum for adjudicating a foster parent's claims under that program.
N.J.S.A. 30:4C-26(a) directs the Commissioner of Human Services to promulgate rules and regulations necessary to effectuate the purposes of the statutes which govern foster care. But the Liability Program for Foster Parents was not established by regulation. The Department of Human Services has promulgated its provisions only in a brochure which DYFS distributes to persons who are or are about to become foster parents. The following provisions are pertinent to the present suit:
B. Damage to Property of Foster Parent
This program shall cover damage to real and personal property of a foster parent caused by a foster child and occurring while the foster child is in the care and custody of the foster parent. . . . .
C. Damage to Dwelling of Foster Parent
Where an act of a foster child results in damage to the dwelling of the foster [parents' home] by fire or other similar catastrophic acts such that it or any part of it is uninhabitable, the limit of reimbursement is increased from $25,000 to $100,000 for such loss. However, such reimbursement is specifically made excess to any coverage available to the foster parent(s) under any policy or insurance.
The State shall be responsible for the preparation of procedures to be utilized in the implementation of this program.
Plaintiff Geraldine Scott was a foster parent. She submitted a claim under the Liability Program for Foster Parents seeking indemnification for the financial loss which she suffered from damage to her home, allegedly caused by a fire negligently started by her foster child when he left a hot iron on a bed. A senior claims investigator in the Bureau of Risk Management denied her claim, explaining that there was "no conclusive evidence to determine who actually left the iron on which ultimately was the cause of this fire," but that Ms. Scott could appeal to a deputy attorney general whom he named. She ...