United States District Court, D. New Jersey
April 6, 2005.
K.J., T.J. AND M.J., by their Guardian ad litem, MARCIA ROBINSON LOWRY, Plaintiffs,
DIVISION OF YOUTH AND FAMILY SERVICES, DEPARTMENT OF HUMAN SERVICES, STATE OF NEW JERSEY, PATRICIA BELASCO-BARR, MICHELE GUHL, CHARLES VENTI, DORIS JONES, MANAGERIAL DOES 1-10, SUPERVISORY DOES 1-10, and CASEWORK DOES 1-10, Defendants.
The opinion of the court was delivered by: STANLEY BROTMAN, Senior District Judge
OPINION ON MOTION TO DISMISS UNDER RULE 12(b)(6)
On October 10, 2003 Plaintiffs' older brother, B.J., was
observed eating out of a trash can in Collingswood, New
Jersey.*fn1 (OCA Rpt. at 1.) Police responded to an early
morning call about a "little kid" eating garbage and encountered
an evidently malnourished nineteen year-old. B.J. weighed just
forty-five pounds and stood only four feet tall. (Id.)
Investigations led police to the Jackson home, where B.J. lived
with his adoptive parents as well as Plaintiffs K.J., T.J. and M.J. ("Plaintiffs" or the "Minor Children"). Plaintiffs appeared
to be "dramatically underweight." (Id.) Consequently, the three
Plaintiffs and their older brother B.J. were removed from the
Jackson home and taken immediately to a local hospital. (Id.)
Plaintiffs commenced this lawsuit seven months later, naming
the State of New Jersey, New Jersey Division of Youth and Family
Services ("DYFS"), the New Jersey Department of Human Services
("DHS"), present and former directors of DYFS, and individual
caseworkers and supervisors of DYFS.*fn2 This Opinion and
accompanying order concern a Motion to Dismiss for failure to
state a claim upon which relief can be granted on behalf of
Defendants' State of New Jersey, DYFS, DHS, and the present and
former directors of DYFS (collectively the "State Defendants")
pursuant to FED. R. CIV. PRO. 12(b)(6).*fn3
I. FACTUAL BACKGROUND.
Defendants approved the Jacksons as foster parents in August of
1991 and placed B.J. with them in December 1991. (Compl. at ¶¶
26, 27.) At the time B.J. was placed in the foster home he
weighed 43.75 pounds and stood 48.25 inches tall. (Compl. at ¶
27.) He was seven years old. (Id.) Comparatively, when B.J. was discovered eating
garbage twelve years later, he weighed only forty-five pounds and
was four feet tall. (Id.) During the twelve years after B.J.
began living in the Jackson home, Defendants placed each of the
Plaintiffs there and repeatedly visited the household.*fn4
Plaintiffs allege that Defendants were obligated by statutes,
regulations, and internal agency policies to visit and inspect
the living conditions of the children. (OCA Rpt. at 22-23, 24,
26). These obligations may have even required Defendants to
interview the children in the household at various times during
the foster care placement and adoption processes. (Id.) These
visits, along with other encounters, raise disconcerting
questions about DYFS' involvement in child placement cases in New
DYFS received a phone call in September 1992 reporting that a
foster child in the Jackson home had complained he was hungry.
(OCA Rpt. at 10.) The caller reported that the child had only
gained one-half of one pound in weight and not grown in height
since being placed there. (Id.) DYFS investigated the incident
but did not reach any conclusions about neglect or abuse. (Id.)
Notwithstanding the patent problems with B.J.'s placement,
Plaintiffs were each placed as foster children in the Jackson
home in 1995: T.J. was placed in March, M.J. was placed in
August, and, K.J. was placed in November of 1995.
A. Plaintiffs' Placements in the Jackson Home.
T.J. was placed in the Jackson household on March 8, 1995 at seventeen months of age. At the time, he weighed twenty-eight
pounds and was roughly two feet seven inches tall. (Compl. at ¶
37; OCA Rpt. at 15.)
Two months after T.J. was placed, in May 1995, DYFS received a
report from B.J.'s school expressing concern because he had
failed to gain weight and because Mrs. Jackson had delayed his
doctor's appointments. (OCA Rpt. at 10 and 15.) According to the
OCA Report the caller reported that B.J. complained the "Jacksons
did not give him enough to eat." (OCA Rpt. at 15.) The DYFS
investigator noted that B.J.'s foster mother stated that B.J. had
a stomach problem, requiring control of his diet. B.J. remained
in the Jackson home, but did not return to school the following
September. (OCA Rpt. at 11.)
Other reports on B.J. were received by DYFS. A caseworker
reported that B.J. had begged her to take him out to eat. (OCA
Rpt. at 11.) At another time, a therapist noted that B.J.
disclosed that he had been climbing out of a second story window
to eat from garbage cans. (Id.) Finally, between 1994 and 1996,
caseworkers reported in writing on four separate occasions that
B.J. appeared thin or underweight. (Id.)
Defendants placed M.J. in the Jackson home in August of 1995.
(Compl. at ¶ 44.) He was seventeen months old, weighed seventeen
pounds eight ounces, and was twenty-nine inches long. (Compl. at
¶ 44; OCA Rpt. at 18.)
T.J.'s medical records reveal his abnormal lack of growth and
development. By August 25, 1995, just six months after T.J. was
first placed in the Jackson home, he had lost four pounds of
weight. (OCA Rpt. at 15.) Approximately six weeks later, DYFS
reports reflected that he had lost another pound and weighed only twenty-three pounds. (Id.) Almost exactly one year later, on
October 15, 1996, T.J.'s pre-adoption examination occurred.
(Id.) He was three years of age and weighed twenty-one pounds.
K.J. had been in three foster homes before he joined T.J. and
M.J. in the Jackson home on November 2, 1995. (OCA Rpt. at 14.)
Prior to this placement, a supervisor had recommended that K.J.
be placed in a home with fewer children where he could get more
individual attention. (Id.) Instead, K.J. was placed in the
Jackson home along with eight other children. (Id.)
When K.J. was placed in the Jackson home, he was seven years of
age, weighed thirty-eight pounds and stood three feet nine inches
tall. (Id.) Eight months after being placed in the Jackson
home, on June 4, 1996, K.J. had a pre-adoptive medical
examination. (Id.) K.J.'s weight was recorded as forty-one
pounds and his height was forty-four inches. (Id.)
In spite of Plaintiffs' numerous growth and nutrition problems,
B.J.'s adoption was finalized on July 8, 1996. (OCA. Rpt. at 12.)
Thereafter, a monthly adoptive subsidy was paid to his adoptive
parents on his behalf. (Id.) Upon B.J.'s adoption, a DYFS
report noted that the foster parents had installed an alarm
system which denied him access to the kitchen. (Compl. at ¶ 63.)
K.J. had another medical exam on September 10, 1996. (OCA Rpt.
at 14.) In the three months since his June exam K.J. had lost
three pounds. (Id.) The medical records list his weight as
thirty-eight pounds and his height as forty-five inches. (Id.)
With DYFS' approval, both M.J.'s and K.J.'s adoption were
finalized on March 14, 1997. (OCA Rpt. at 15.) Similarly, T.J.'s
adoption was finalized on December 12, 1997. (OCA Rpt. at 17). At
the time of T.J.'s adoption DYFS reports indicate that he
generally enjoyed good health without mentioning T.J.'s low weight and height. (Id.)
B. Defendants' Documentation of Plaintiffs' Medical and
The OCA Preliminary Report charges DYFS with a "systemic"
failure to comply with its statutory and regulatory duties as
well as its own policies. (OCA Rpt. at 3). DYFS has a minimum
visitation requirement ("MVR") for each child placed outside the
home which specifies the frequency for which caseworkers must
visit the child. (OCA Rpt. at 30.) The MVR schedules normally set
visits in a range from once per week to once every twelve weeks.
(Id.) In January 2003, the policy for MVRs changed to requiring
visits at least once per month. (Id.) Therefore, DYFS
caseworkers had many opportunities to see the conditions of the
household during the years they were placed there.
In addition, DYFS regulations between 1991 and 1999 required
"updated medicals and in-person interviews during re-evaluations"
of a household for additional surrogate placements. (OCA Rpt. at
27.) To that end, at least four DYFS employees evaluated the
Plaintiffs' foster and adoptive home between 1991 and 2002.
(Id.) DYFS supervisors reviewed and approved of at least two of
these employees' work. (Id.)
Nonetheless, according to DYFS records, none of the employees
responsible for the Jackson home obtained medical records or
interviewed all members of the household during any reevaluation.
(Id.) Specifically, in September 19, 1997 a DYFS employee
conducted a reevaluation of the household. The employee reported
that no members of the household had any medical problems
requiring treatment. (Id.) The medical history gathered by the
OCA contradicts this. In particular, the medical evaluations
occurring before the children were adopted in 1997 document
specific medical concerns for each child. For example, a physician evaluating K.J. in September 1996
described him as "underdeveloped" and suggested possible
diagnoses of fetal alcohol syndrome and failure-to-thrive
syndrome. (OCA Rpt. at 14.) One month later, in October 1996, a
pediatric neurodevelopmentalist observed that T.J. was "markedly
underweight and undersized and presented with failure-to-thrive
syndrome." (Id. at 16.) Likewise, in August 1996 a physician
noted that M.J. presented with significant failure-to-thrive
syndrome and possible fetal alcohol syndrome. (OCA Rpt. at 19.)
In a similar manner, the recorded notes of B.J.'s caseworker
described B.J. as "thin" or "underweight" on four occasions
between December 22, 1994 and March 27, 1996. (Id.) Thus, one
year before the DYFS employee asserted that no one in the home
required medical treatment, and before any of the Plaintiffs were
adopted, DYFS records document concerns for the boys' health.
Like DYFS, DHS reevaluated and approved the home for foster
care in 1999 and 2002. (Compl. at ¶ 107.) Caseworkers also
visited the home and saw Plaintiffs a number of times after their
adoption in 1997. (Compl. at ¶¶ 105-106.)
C. Plaintiffs' Improvement upon Removal from the Surrogate
When removed from his adoptive home, Plaintiff T.J. was ten
years old and weighed twenty-eight pounds. (Compl. at ¶ 4; OCA
Rpt. at 15.) From the time T.J. was less than one and a half
years old through his tenth birthday, he gained no weight and had
grown only seven inches. (OCA Rpt. at 15.) Likewise, when
Plaintiff M.J. was removed, he was nine years old and weighed
twenty-two pounds. (Compl. at ¶ 4.) He had gained only four
pounds, eight ounces in over seven years. K.J. also hardly
developed while in the Jackson home. K.J. was fourteen years old, weighed forty
pounds, and stood four feet tall when removed from his adoptive
home. (Compl. at ¶ 4.) He gained two pounds and three inches in
seven years while under the Jackson's care and the supervision of
DYFS and DHS.
After their removal from the Jackson home in October 2003 K.J.,
T.J. and M.J. were placed on a normal diet and given vitamins.
(OCA Rpt. at 12, 15, 18). Less than four months later each boy
had gained a substantial amount of weight and grown considerably
taller. K.J. gained thirty-three pounds and grew one and three
quarter inches. (OCA Rpt. at 12). Similarly, T.J. grew three
inches and gained fifteen pounds. (OCA Rpt. at 15). M.J. grew
more than four inches and gained over twenty pounds. (OCA Rpt. at
18). In each case, doctors concluded that the child's low weight
and height were not caused by any medical conditions. (OCA Rpt.
at 12, 15 and 18.)
D. Procedural History.
Plaintiffs filed a Complaint on May 26, 2004 in the Superior
Court of New Jersey, Law Division, Camden County. On July 23,
2004, a notice of removal was filed by Defendants and the action
was removed to the United States District Court of the District
of New Jersey. Before removal on June 17, 2004, the New Jersey
Superior Court appointed a guardian ad litem for the Minor
Children. The Court appointed guardian was in response to a
petition filed by the Child Advocate of the State of New Jersey
for the OCA pursuant to N.J. STAT. ANN. § 52:17D-7. Defendants
challenged the Superior Court's appointment of a guardian ad
litem, by filing a Motion to Vacate which was later withdrawn by
Stipulation on September 24, 2004.
Fourteen Causes of Action*fn5 are alleged in the Complaint
and Defendants seek to dismiss all of the claims against them. In
the first three Counts, Plaintiffs allege violations of their
federal constitutional due process rights. Plaintiffs seek to
hold the individual defendants liable under Section 1983 for violations of their federal due process
rights. 42 U.S.C. § 1983 (1988) ("Section 1983"). Counts Four and
Five allege violations of substantive due process under the New
Jersey Constitution against all Defendants. Counts Six through
Ten allege violations of Plaintiffs' rights as established by the
New Jersey Child Placement Bill of Rights Act, seeking damages
against all Defendants. Count Eleven seeks damages for negligence
under the New Jersey Torts Claim Act ("TCA") against all
Defendants. Counts Twelve and Thirteen seek damages for the
violation of the New Jersey Law Against Discrimination ("LAD")
against all Defendants. N.J. STAT. ANN. §§ 10:5-1 through 10:5-49
(2000). The Plaintiffs voluntarily dismissed Count Fourteen.
II. STANDARD FOR MOTION TO DISMISS FOR FAILURE TO STATE A
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss a complaint for "failure to state a claim upon
which relief can be granted." The rule seeks to screen out claims
for which there is clearly no remedy, or where the plaintiff has
no right to assert. Port Auth. v. Arcadian Corp., 189 F.3d 305,
311-12 (3d Cir. 1999). Under Rule 12(b)(6), a complaint should not be dismissed for
failure to state a claim "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957). In the alternative, when amendment can cure the
defects in a complaint, the plaintiff should be given an
opportunity to amend within a reasonable time period. Shane v.
Fauver, 213 F.3d 113, 116 (3d Cir. 2000). The issue, therefore,
is not whether the plaintiff will ultimately prevail, but whether
the claimant is entitled to offer evidence to support the claims.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). See also Maio v.
Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
In considering whether a complaint should be dismissed for
failure to state a claim upon which relief can be granted, the
court must consider only those facts alleged in the complaint and
accept all of the allegations as true, drawing all reasonable
inferences in the plaintiff's favor. ALA v. CCAIR, Inc.,
29 F.3d 855, 859 (3d Cir. 1994); Jordan v. Fox, Rothschild, O'Brien
& Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). Under some
circumstances, an authentic document attached to a motion to
dismiss may be considered by the court. Pension Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993),
cert. denied, 510 U.S. 1042 (1994). See also Garlanger v.
Verbeke, 223 F. Supp. 2d 596, 601 (D.N.J. 2002). Legal conclusions offered in the guise of factual allegations, however,
are given no presumption of truthfulness. See, e.g., Papasan v.
Allain, 478 U.S. 265, 286 (1986). See also Kost v.
Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
III. ANALYSIS OF STATE DEFENDANTS' MOTION TO DISMISS.
The Motion to Dismiss seeks to dismiss all claims against the
State Defendants, which encompasses DYFS, DHS, the State of New
Jersey, and the present and former directors of DYFS who have
A. Section 1983 Violations of Federal Constitutional Due
Process. (Counts One through Three).
The State Defendants suggest that each of the Section 1983
Counts do not state a sufficient liberty interest which is
redressable under federal due process. Defendants also argue that
the named officials cannot be held liable under Section 1983 for
their actions.*fn6 The court disagrees.
In cases where the official conduct alleged is sufficiently
egregious, the arbitrary actions of an official may support a
claim under Section 1983 for a violation of due process.
Sacramento v. Lewis, 523 U.S. 833, 846 (1998). See also Rivas
v. Passaic, 365 F.3d 181, 195 (3d Cir. 2004). Before evaluating
a Section 1983 claim, a court must identify "whether the
plaintiff has alleged a deprivation of a constitutional right at
all." Lewis, 523 U.S. at 841. See also Coleman v. DYFS,
246 F. Supp. 2d 385, 388 (D.N.J. 2003). Next, Plaintiffs were placed into surrogate care by the State
which impinged upon their liberty interests. In general the
government has no affirmative duty under the Constitution to take
action to assure that each citizen is able to exercise, enjoy or
realize the benefits of a particular right. DeShaney v.
Winnebago Co. Dept. of Soc. Servs., 489 U.S. 189, 195
(1989).*fn7 With respect to the right to liberty, exceptions
to the DeShaney rule exist when the government has placed
sufficient restraints on a person's liberty to create a special
relationship with the individual. At this point a substantive due
process right arises out of the affirmative duties created by
that special relationship.
The Third Circuit has held that a state's intervention under
the surrogate care system sufficiently imposes upon a child's
liberty interest to provide a substantive due process right.
Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (holding
"when the state places a child in state-regulated foster care,
the state has entered into a special relationship with that child
which imposes upon it certain affirmative duties.") Accord
Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en banc).
Accordingly, the breach of a state's affirmative duties can
provide for liability under Section 1983. Nicini,
212 F.3d at 808 ("The failure to perform such duties can give rise, under
sufficiently culpable circumstances, to liability under Section
1983.") Cf. D.R. v. Middle Bucks Area Voc. Tech. School,
972 F.2d 1364, 1369 (3d Cir. 1992). For the special relationship
exception to apply, a court must determine that the plaintiff has
alleged a protected interest and a sufficient relationship with the government in order to state a
cause of action. Nicini, 212 F.3d at 810.
Another exception to DeShaney arises under conditions of a
state-created danger. The Third Circuit has recognized
circumstances where this cause of action may lay. Kneipp v.
Tedder, 95 F.3d 1199, 1205-09 (3d Cir. 1996). In Kneipp,
police officers intervened to remove plaintiff's private source
of protection, thereby placing her in danger. Id. The Third
Circuit determined that their intervention supplied a sufficient
encroachment upon plaintiff's liberty interest to implicate a
protected right. Id.*fn8 But see D.R. v. Middle Bucks
Area Vo. Tech. School, 972 F.2d 1364, (3d Cir. 1992) (finding
that "the school defendants did not restrict D.R.'s freedom to
the extent that she was prevented from meeting her basic needs.")
The court finds that the Plaintiffs have properly alleged their
substantive due process claims under Section 1983 to permit
Counts One and Two to remain in the action.
The Plaintiffs also allege that the State provided insufficient
process before the deprivation of their liberty interest and
insufficient remedies for the deprivation. To state a claim for a
deprivation of liberty, the Supreme Court requires allegations of
either predeprivation process or a postdeprivation remedy.
Zinermon v. Burch, 494 U.S. 113 (1990).
Defendants further assert that the conduct alleged does not
support a procedural due process right. Daniels v. Williams,
474 U.S. 327 (1986) (holding that procedural due process affords
protection only against deliberate acts by the government). The
Third Circuit has permitted a cause of action based upon conduct
which alleges gross negligence. Ryan v. Burlington Co., 674 F. Supp. 464 (D.N.J. 1987), aff'd,
860 F.2d 1199 (3d Cir. 1988). Cf. McClary v. O'Hare, 786 F.2d 83
(2d Cir. 1986) (requiring an allegation of reckless conduct to
find a cause stated). Plaintiffs have alleged the deprivation and
gross negligence required to support the cause of action alleged
in Count Three.
Finally, Plaintiffs alternatively requested remedies under
Section 1983 based upon rights arising under New Jersey
legislation. State law does not give rise to a right enforceable
under federal law. The Supreme Court established that Section
1983 provides a cause of action for violations of rights arising
under federal legislative provisions. Maine v. Thiboutot,
448 U.S. 1, 4 (1980).*fn9 See also Benn v. Universal Health
Sys., 371 F.3d 165, 174 (3d Cir. 2004).
1. Fictitious Names.
Defendants also argue that the claims alleged under Section
1983 should be dismissed because they are made against persons
who have not yet been named. These claims shall remain a part of
Courts will allow claims based upon "fictitious" defendants
because they may be found and named later through the discovery
process. Alston v. Parker, 363 F.3d 229, 233 n. 6 (3d Cir.
2004) (citing Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998).
See also Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 36 (E.D.
Pa. 1990), aff'd, 946 F.2d 202 (3d Cir. 1991) (stating that
fictitious defendants are permitted "as stand-ins for real
parties until discovery permits the intended defendants to be installed.") In such cases, courts
allow claims for relief to survive a motion to dismiss.
Plaintiffs have sufficiently alleged claims under Section 1983
as to be entitled to present evidence in support of Counts One
The court now turns to the claims alleging violations of
Plaintiffs' rights under New Jersey law. Plaintiffs seek remedies
in damages pursuant to the New Jersey legislative provisions
which they suggest contain implied remedies.
B. Implying Remedies under New Jersey Legislative
New Jersey utilizes the Restatement rule for determining when a
legislative provision should be read as containing an implied
remedy. Bortz v. Rammel, 151 N.J. Super. 312, 321 (App.Div.),
certif. denied, 75 N.J. 539 (1977). For those statutes which
omit any reference to remedies, the Restatement allows for a
civil remedy to be implied. Restatement (Second) of Torts § 874A
(1979). The Restatement proposes:
[w]hen a legislative provision protects a class of
persons by proscribing or requiring certain conduct
but does not provide a civil remedy for the
violation, the court may, if it determines that the
remedy is appropriate in furtherance of the purpose
of the legislation and needed to assure the
effectiveness of the provision, accord to an injured
member of the class a right of action. . . .
RESTATEMENT (SECOND) OF TORTS § 874A (1979). The comments to the
Restatement further explain that this rule applies to statutory as well as
When inferring a private right of action, the central inquiry,
therefore, seeks to determine whether the legislature intended to
provide a civil remedy under the statute. See, e.g., Jalowiecki
v. Leuc, 182 N.J. Super. 22, 30 (App.Div. 1981). In order to
make this determination, New Jersey courts examine: (1) whether
plaintiff is a member of the class for whose benefit the statute
was enacted; (2) evidence that the legislature intended to create
a private right of action under the statute; and (3) whether
inferring a remedy would be consistent with the underlying
purpose of the legislative scheme. Castro v. NYT Television,
370 N.J. Super. 282, 291 (App.Div. 2004) (citing R.J. Gaydos
Ins. Agency v. Nat'l Consumer Ins. Co., 168 N.J. 255, 271
(2001)). These guidelines will be considered for implying
remedies under the New Jersey legislative provisions as requested
1. New Jersey Child Placement Bill of Rights Act (Count Six).
The parties disagree as to whether the Child Placement Bill of
Rights Act (the "Act" or the "Child Placement Bill of Rights
Act") provides a private cause of action in damages. N.J. STAT. ANN. 9:6B-1 to 9:6B-6 (1991). Defendants contend that
Castro effectively forecloses a remedy under the Act. Castro
is distinguishable from the instant action and not dispositive of
the question. As discussed, when implying a remedy pursuant to a
legislative provision, the New Jersey courts seek to determine
whether the legislature intended to provide a civil remedy under
the statute. The inquiry here centers around whether that remedy
would be consistent with the underlying purpose of the
First, the overall scheme of the New Jersey child welfare
statutes will be considered as a factor in the determination of
the underlying purpose of the Child Placement Bill of Rights Act.
The Act outlines the State's responsibilities when undertaking to
protect children by placing them outside of the home. N.J. STAT.
ANN. 9:6B-1 to 9:6B-6. The main provisions of the New Jersey
child welfare laws contain the specific requirements and
regulations for the administrative oversight of the child
placement process. However, the legislature created the Child
Placement Bill of Rights Act as separate from the body of the
child welfare laws, suggesting that it was meant to provide a
Title 30 and Title 9 contain the body of the New Jersey child
welfare laws. Each title contains provisions for separate
proceedings with respect to a child's placement outside of the
home. Chapter 4C of Title 30 encompasses the primary termination
of parental rights provisions enacted as the Child Placement
Review Act (N.J. STAT. ANN. §§ 30:4C-50 to 30:4C-65) and the
Child Placement Act (N.J. STAT. ANN. §§ 30:4C-1 to 30:4C-83).
Both Chapters under Title 30 prescribe specific procedures with
respect to placing children outside the home.
Title 9, on the other hand, contains the provisions for
temporary placement in cases of abuse or neglect. N.J. STAT. ANN.
§§ 9:6-1 to 9:6-8.106. Under that title, the definition for abused or neglected child provides that either action or inaction
by the parent may constitute grounds to find abuse or neglect.
Id. A finding of abuse or neglect allows the state agency to
file a complaint seeking to terminate parental rights under Title
30. N.J. STAT. ANN. § 9:2-18. Each of the New Jersey child
welfare acts also requires a different burden of proof and
provides for separate remedial schemes. N.J. STAT. ANN. §
9:6-8.46 (requiring a preponderance of the evidence for a finding
of abuse or neglect). See also In re Guardianship of J.C.,
129 N.J. 1, 10 (1992) (requiring a higher standard of clear and
convincing evidence for termination of parental rights under
It appears that the New Jersey legislature designed the Child
Placement Bill of Rights Act to protect the most fundamental
rights of children placed outside the home. The Act's section on
legislative findings and declarations outlines three basic
principles. N.J. STAT. ANN. § 9:6B-2. These principles guide the
court's interpretation of the Act. First, the legislature states
that children placed outside of the home hold and enjoy rights
independent of their parent or legal guardian. N.J. STAT. ANN. §
9:6B-2 (a). Second, the legislature recognizes an affirmative
obligation of the State to recognize and protect the rights of
the child placed into surrogate care. N.J. STAT. ANN. § 9:6B-2
(b). Third, the legislature included a requirement for a clear
and consistent policy from the State for the promotion of
permanent placement over long-term temporary care. N.J. STAT.
ANN. § 9:6B-2 (c).
The Act directs further that surrogate placement must be
carried out in a manner "consistent with the health, safety and
physical and psychological welfare of the child and as
appropriate to the individual circumstances of the child's
physical or mental development. . . ." N.J. STAT. ANN. § 9:6B-4.
This section enumerates sixteen discrete guidelines for the State
to follow in order to protect the rights of children who receive
surrogate placement. These guidelines specify that when placing
children outside of the home, the State must take all reasonable
measures to protect their safety, right to contact with siblings,
interest in receiving permanent placement over continuous foster
care, and fundamental rights to adequate food, clothing, housing
and medical care.
One of the fundamental principles of statutory construction,
"ubi ius ibi remedium" proclaims that rights created by
legislation arise from an intention to confer an adequate remedy
to enforce those rights. RESTATEMENT (SECOND) OF TORTS § 874A
cmt. c (1979). Furthermore, a statutory construction which
renders any portion of a statute superfluous should be avoided.
See, e.g., Abbots Dairies v. Armstrong, 14 N.J. 319, 327-28
(1954). Under certain circumstances, a violation of a statute may
generate a remedy which is not explicitly stated in the act.
Parks v. Pep Boys, 282 N.J. Super 1, 14 (App.Div. 1995).
Consistent with the rules of statutory construction, the court
finds that the intent of the legislature was to provide an
effective remedy for the violation of the rights enumerated by
the Child Placement Bill of Rights Act.
The statutory construction found in Castro regarding the
underlying legislative purpose of the Hospital Patients' Bill of
Rights Act found is distinguishable from the instant case.
Castro v. NYT Television, 370 N.J. Super. 282 (App.Div. 2004).
In Castro, the court was asked to imply a private right of
action pursuant to the Hospital Patients' Bill of Rights Act.
N.J. STAT. ANN. § 26:2H-12.10. That Act enumerates seventeen
rights of hospital patients while explicitly providing a single
remedy for the violation of those rights: patients may complain
to the Department of Health which closely regulates the hospital
industry. Castro, 370 N.J. Super. at 290. Under that Act, "a
patient who claims a hospital has violated one of the rights
found in the Act `may file a written complaint against a hospital for failure
to comply with the provisions of this act'" with the Department
of Health. Castro, 370 N.J. Super. at 290 (quoting N.J. STAT.
ANN. § 26:2H-12.10).
The legislative history of the Hospital Bill of Rights Act also
shows that the legislature considered and removed language which
might have provided for a private cause of action under it.
Castro, 370 N.J. Super. at 292 ("This legislative history
demonstrates that the Legislature made a deliberate decision to
withhold authorization for patients to bring private actions for
alleged violations of the Hospital Patients Bill of Rights Act.")
The court determined that the legislature's inclusion of a
sufficient and explicit remedy in the Hospital Patients' Bill of
Rights Act precluded finding that the statute contained a
separate private right of action for violations of its
provisions. Castro, 370 N.J. Super. at 289-91.
In contrast, no remedies or remedial scheme were provided
within the Child Placement Bill of Rights Act. The Act enumerates
the rights of children who are placed in surrogate care by the
State, without articulating the remedy for a violation of those
rights. N.J. STAT. ANN. 9:B6-4 (stating that "a child placed
outside his home shall have the following rights. . . .") Under
these circumstances, the court must determine how the legislature
intended for the provisions of the Child Placement Bill of Rights
Act to be enforced in order to uphold its underlying purpose in
the legislative scheme. Having found that the underlying purpose
of the statutory scheme suggests a remedy for the Child Placement
Bill of Rights Act, the New Jersey case law interpreting the
child welfare laws will also be considered.
Under New Jersey law, the termination of parental rights is a
serious matter. When a minor child needs to be protected from
serious physical or emotional harm, the State may step in as parens patriae where "[i]n some instances, this may require
a partial or complete severance of the parent-child
relationship." In the Matter of the Adoption of a Child by P.S.
and J.S., 315 N.J. Super. 91 (App.Div. 1998) (citation
omitted).*fn11 The decision must be based upon a
determination of whether placement action would be in the child's
best interest. N.J. STAT. ANN. §§ 30:4C-15.1 to 30:4C-20.
Termination of parental rights will not be permitted under
circumstances where a child "might be better off" with
prospective foster or adoptive parents. In re Guardianship of
J.C., 129 N.J. 1, 19 (1992). In those cases where parental
rights are terminated, DYFS obtains full authority over a child.
See, e.g., In re Guardianship of R.O.M.C., 243 N.J. Super. 631
Because DYFS takes full authority over a minor child and
assumes the role of parens patriae during the placement
process, public policy requires that it have an enhanced duty
with respect to the children it undertakes to protect.
Accordingly, the legislature enacted a bill of rights which
articulates this affirmative duty of the State to enforce the
rights of children who receive surrogate placement. See, e.g.,
N.J. STAT. ANN. § 9:6B-2 (declaring, in part, that the "State has
an affirmative obligation to . . . enforce these rights in order
to protect and promote the welfare of the child placed outside
his home. . . .") The Act recognizes a basic principle that it is
the obligation of our society to protect children as members of a
vulnerable class of persons.
In addition, the New Jersey courts have upheld the provisions
protecting the rights of children under the Child Placement Bill of Rights Act. For
example, paragraphs e and f address the specific need for
siblings to maintain their sibling relationships when placed into
a surrogate home. N.J. STAT. ANN. § 9:6B-4 (e) & (f). The
Appellate Division of the New Jersey Superior court enforced
these siblings rights provisions as found under the Act. In the
Matter of C.R., 364 N.J. Super. 263, 278 (App.Div. 2003). In
that case, the court found that the review by the Chancery
Division of the specific proposed placement includes the right of
the child to consideration of sibling relationships as a part of
the totality of the circumstances for making the "best interests"
determination. C.R., 364 N.J. Super. at 349.
Next, New Jersey courts have recognized that the underlying
purposes of the Act include protection of the child's interest in
permanent placement. Guardianship of D.J.M.,
325 N.J. Super. 150 (N.J. Ch. 1999) (citing N.J. DYFS v. K.M., 136 N.J. 546,
559 (1994); N.J. STAT. ANN. §§ 9:6B-1 to 9:6B-6). See also
Guardianship of K.H.O., 308 N.J. Super. 432, 442 (App.Div.
1998) (stating that children in foster care are entitled to
contact with siblings and foster parents under the Child
Placement Bill of Rights Act). Cf. In re E.M.B.,
348 N.J. Super. 31 (App.Div. 2002) (citing N.J. STAT. ANN. § 30:4C-50)
(finding that the intent of the Child Placement Review Act is to
provide periodic review of each child in placement in order to
establish either permanent placement or return home). In
D.J.M., the Chancery Division also discusses the purpose behind
the later enactment of the New Jersey Adoption and Safe Families
Act (the "A.S.F.A.") in order to advance the legislature's intent
to place the safety of children first in guardianship
proceedings. D.J.M., 325 N.J. at 155 (citing SEN. JUDICIARY
COMM. STMT. TO SENATE BILL NO. 1705 (1999) ("[T]he safety of
children shall be the paramount concern, expanding the current State policy which protects a
child's best interests.") The A.S.F.A. further illustrates the
Legislature's continuing commitment to making a child's safety
the utmost priority when the State intervenes to place children
outside of the home.
Finally, the New Jersey Supreme Court has recognized the
special status of children, stating that they are members of "a
vulnerable class by virtue of their age and immaturity." Frugis
v. Bracigliano, 177 N.J. 250, 282 (2003). In Frugis, the Board
of Education ignored indications that a school official was
abusing students and failed to institute policies that may have
protected the students. As a result, the state Supreme Court
concluded that "[a]lthough the overarching mission of a board of
education is to educate, its first imperative must be to do no
harm to the children in its care." Id. at 268. In the instant
action, the overarching mission of the State government is to
protect children from harm. The State does so by intervening on
their behalf in situations of abuse and neglect, as prescribed
under its laws.
Any construction of the Child Placement Bill of Rights Act
which does not provide a private right of action would work
against the principals of statutory construction and would work
against the basic policy decisions underlying the enactment of
the legislation. The court can imagine no permissible reading of
the Act which would not provide a private remedy for the
violation of certain rights of a child being placed outside of
the home to adequate food, shelter and medical care, and the
right to a reasonably safe environment.
The foster care plan that satisfies all of the specific
provisions found under New Jersey law will be as individual as
each child. Without specific guidance, there is no adequate
measure of what the individual needs of a child in surrogate care
should be. The Child Placement Bill of Rights Act does not seek
to provide for administration over the child placement process
because those particulars are left to the devices of the child placement
system. See, e.g., N.J. STAT. ANN. §§ 30:4C-50 to 30:4C-65;
N.J. STAT. ANN. §§ 30:4C-1 to 30:4C-83; N.J. STAT. ANN. §§ 9:6-1
to 9:6-8.106. Instead, the Child Placement Bill of Rights Act
seeks to remedy the harm which arises when the State agencies and
the placement system fail to carry out the State's affirmative
obligation to protect the fundamental rights of the children
entrusted to its care.
Under the circumstances found here, it is the duty of the court
to provide those remedies which are necessary to make effective
the New Jersey legislature's purpose for enacting the Child
Placement Bill of Rights Act. An administrative review process
does not provide the type of review desirable for a resolution of
the issue as to whether a child's fundamental rights have been
protected by the State's placement process. Though a court should
refrain from legislating or administrating from the bench, the
basic adequacy of the oversight provided by the State and its
agencies may be addressed. Private enforcement provides the
necessary power behind the legislation where the possibility of
civil damages serves as the most effective enforcement mechanism
for the Act's goal to insure that the agencies responsible for
the child's welfare uphold the rights of the child. It is proper
and necessary, therefore, that the Child Placement Bill of Rights
Act provide a private right of action.
2. New Jersey Constitution. (Counts Four and Five).
The New Jersey Constitution contains neither the term "due
process" nor the phrase "equal protection." However, when a
statute is challenged under the State Constitution, the New
Jersey Supreme Court has construed it expansively. Caviglia v.
Royal Tours of Am., 178 N.J. 460, 472 (2004). For thirty years,
Article I, paragraph 1 of the State Constitution has been interpreted as guaranteeing the fundamental rights of life,
liberty, and property. Id. See also Montville v. Block 69,
74 N.J. 1, 21 (1977) ("In fact, we have at times interpreted our
State Constitution to provide greater protections than those
existing under analogous Federal provisions.") For due process
challenges to statutory provisions, the New Jersey Supreme Court
employs the analysis utilized by the federal courts. State Farm
Mut. Auto. Ins. v. State, 124 N.J. 32, 46-47 (1991) (stating
with respect to a challenge to the facial constitutionality of
the New Jersey Fair Automobile Insurance Reform Act that "[t]his
court has chosen to apply the same standards developed by the
United States Supreme Court under the federal Constitution for
resolving due process claims under the New Jersey Constitution.")
See also Roman Check Cashing, Inc. v. N.J. Dep't of Banking and
Ins., 169 N.J. 105, 110 (2001) (applying the due process
analysis utilized by federal courts in an action challenging a
distance requirement contained within the New Jersey Check
Cashers Regulatory Act).
The question here is whether a private right of action for
damages exists under the State Constitution for a violation of an
individual's due process rights by the State government.
Therefore, the court must determine whether inferring a remedy
for a violation of individual rights under State due process
would be consistent with the underlying purpose of the
constitutional and statutory scheme.
Few cases directly address implying a private right of action
for a due process violation of an individual's rights under the
New Jersey Constitution. In one instance, the New Jersey court
held that there is no special relationship exception available
under the New Jersey Tort Claims Act. Macaluso v. Knowles,
341 N.J. Super. 112 (App.Div. 2001) (declining to extend a right of action for a violation of a child's rights by the State in the
school environment).*fn12 In another case, the New Jersey
court declined to extend liability for damages based upon a
state-created danger theory. Gonzales v. Camden,
357 N.J. Super. 339 (App.Div. 2003). In this case, two shop owners were
shot when closing their store late at night after city inspectors
delayed them with an inspection. The plaintiffs contended that
the city inspectors, some of whom were armed, should have waited
and escorted them after closing of the store. Id. The court
declined to imply a due process right of action because no
affirmative duty existed for the city officials to protect the
Those cases permitting a private right of action for a
violation of an individual's rights under the New Jersey
Constitution appear to be limited to employment discrimination
under equal protection. See, e.g., Peper v. Princeton Univ. Bd.
of Trs., 77 N.J. 55 (1978). Cf. Cooper v. Nutley Sun Printing
Co., 36 N.J. 189 (1961) (providing an equitable remedy). In
these cases, the New Jersey courts permit an implied private
right of action for violations of individual rights under State
due process. It is not clear whether the New Jersey Supreme Court
would also infer a private cause of action against the State
A bill was sponsored in 2002 to close the gaps in state law by
providing remedies for violations of an individual's state and
federal constitutional rights. A-2073/S-1558 (N.J. 2002). Modeled
after Section 1983, the final Act was passed in September of
2004. New Jersey Civil Rights Act, N.J. STAT. ANN. §§ 10:6-1 and 10:6-2 (2004).
However, this civil rights act does not include a right of
action for private parties. Instead, it creates a civil claim for
deprivations of an individual's "substantive rights, privileges
or immunities" secured by the State Constitution or laws,
enforceable by the State Attorney General.*fn13 N.J. STAT.
ANN. § 10:6-2 (stating "the Attorney General may bring a civil
action for damages and for injunctive or other appropriate
relief. . . . If the Attorney General proceeds with and prevails
in an action brought pursuant to this subsection, the court shall
order the distribution of any award of damages to the injured
party and shall award reasonable attorney's fees and costs to the
Attorney General.") Sovereign immunity should not apply to violations of a
constitutional right, because no branch of government created the
constitution. The New Jersey State Constitution was created by
the people to govern their government.*fn14 Furthermore, a
state bill of rights will be enacted in order to provide
affirmative rights which define the limits of permissible
Under federal law, the Due Process Clause places no affirmative
duty upon a state to protect its citizens, but it does provide a
boundary which will limit a state's power to act. DeShaney v.
Winnebago Co. Dept. of Soc. Servs., 489 U.S. 189, 195 (1989).
Cf. D.R. v. Middle Bucks Area Voc. Tech. School, 972 F.2d 1364,
1372 (3d Cir. 1992); Filakowski v. Greenwich Home for Children,
Inc., 921 F.2d 459, 465 (3d Cir. 1990) (finding mentally
retarded adult's liberty not restrained by state where he was not
required to remain in facility and "enjoyed considerable freedom
of movement.") The Third Circuit has determined that the state's
intervention under the surrogate care system provides one
situation from which certain basic duties flow. Nicini v.
Morra, 212 F.3d 798, 808 (3d Cir. 2000) (holding "when the state
places a child in state-regulated foster care, the state has
entered into a special relationship with that child which imposes
upon it certain affirmative duties.")*fn15 The New Jersey
legislature agreed when it placed an affirmative duty on the State by statute. Child
Placement Bill of Rights Act, N.J. STAT. ANN. 9:6B-1 to 9:6B-6
As discussed in this opinion, the New Jersey Tort Claims Act
and the Child Placement Bill of Rights Act both provide remedies
against the State. Thirty years ago, the legislature opened the
State to suit under a tort claims act. In response to inaction
under the State laws, the legislature provided a specific bill of
rights act to address the rights of children within the State
surrogate care system. Recently, the legislature enacted a civil
rights act to provide additional remedies under the New Jersey
Because these remedies are available, it is not likely under
the legislative scheme that an additional remedy may be inferred
under the New Jersey Constitution for the circumstances of this
case. The court must conclude that insufficient justification has
been offered to provide the requested remedy against the State
government at this time. Counts Four and Five are dismissed.
3. Other State Statutes (Counts Seven through Ten).
Plaintiffs' Counts Seven, Eight, Nine and Ten each seeks
damages for alleged breaches of statutory and regulatory
provisions under New Jersey statutes. (Compl. ¶ 173; Compl. ¶
178; Compl. ¶ 182; Compl. ¶ 185-191.) These statutory provisions
do not explicitly nor independently provide remedies. The court
declines to find that any private right of action can be implied
within any of these statutes. Instead, a breach of a statutory
provision may provide evidence of a duty in a negligence action.
Because these counts do not articulate separate causes of action
from the Count alleged under the Tort Claims Act, below, they
shall be dismissed. C. Negligence under the New Jersey Tort Claims Act. (Count
New Jersey law supplies duties to its governmental agencies for
the protection of children when administering child placement
programs. N.J. STAT. ANN. §§ 9:6B-1 to 9:6B-6; §§ 30:4C-50 to
30:4C-65; §§ 30:4C-1 to 30:4C-83. See also Frugis v.
Braccigliano, 177 N.J. 250, 282 (2003) (remanding and directing
that the jury should be instructed on the heightened duty of
school boards to ensure students' safety from foreseeable harms).
Plaintiffs allege that the public employees charged with
overseeing these programs breached this duty and caused them
harm. Plaintiffs have properly stated claims for negligence which
fall within the waiver of sovereign immunity provided by the TCA.
N.J. STAT. ANN. 59:1-2 (1972).
Defendants contend, however, that specific immunities under the
TCA operate to shield them from all liability under this Count.
The immunities claimed do not apply to the actions of the public
employees who were alleged to have caused the harm here.
1. Licensing Immunity under the TCA.
Defendants' attempt to claim that their responsibilities merely
amounted to providing a license for foster care and adoptions.
Ball v. N.J. Telephone Co., 207 N.J. Super. 100, 504 A.2d 29
(App.Div. 1986) (determining that the government cannot evade
liability for its own conduct which created a dangerous condition
on its property merely because it also provided a license for
placement of a telephone pole). This immunity for licensing
activities is a narrow exception to the waiver of sovereign
immunity under the TCA. N.J. STAT. ANN. § 59:2-5 (1992). The
protected licensing functions only include those activities
directly related to the issuance or denial of a license
application. Ball states that "the immunity accorded by the statute was intended to protect public bodies in the performance
of their discretionary and ministerial licensing functions."
Id. at 110. The agency activities and oversight alleged in this
action fall outside of the exception.
The activities alleged here far exceed the scope of merely
providing a license to a foster parent or adoptive parent.
Plaintiffs are entitled to present evidence arising from the
Defendants' activities seeking to protect the welfare of the
Plaintiffs during the surrogate placement process.
2. Immunity for Enforcement of the Law under the TCA.
Defendants claim that there is no waiver of sovereign immunity
as to actions taken by them as an enforcer of the law. Plaintiffs
have alleged claims for a failure by the agency to fulfill its
duties in oversight over the child placement process. The claims
do not seek damages for the failure of any agency to enforce
regulations or to provide law enforcement. See, e.g., Saladana
v. Dimedio, 646 A.2d 522 (App.Div. 1994) (distinguishing
between negligence claims and claims against the government
serving in its "role as enforcer of the laws.") Instead, the
activities alleged fall outside the scope of the limited
exception to New Jersey's waiver of sovereign immunity for
enforcement of the law. N.J. STAT. ANN. § 59:2-4 (1992). See
also Cadmus v. Long Branch Bd. of Ed., 155 N.J. Super. 42
(1977). Plaintiffs are entitled to present evidence arising from
the Defendants oversight of the surrogate placement process which
falls outside the scope of the state's immunity for law
3. Judicial Immunity under the TCA.
The Defendants attempt to immunize all of their actions by
suggesting that the judicial removal proceeding resulted in the
entire cause of action. The argument ignores that the complaints against the Defendants arise from conduct which
extends beyond their participation in any judicial removal
proceedings. See, e.g., Delbridge v. Schaeffer, 569 A.2d 872
(N.J. Law Div. 1989) (asserting malicious prosecution claim that
the judicial proceeding which resulted in the removal of their
children had been unfair).
Caseworkers are entitled to absolute immunity for their actions
in preparing for dependency proceedings but that immunity does
not extend beyond the actual proceedings. Ernst v. Child and
Youth Servs. of Chester Co., 108 F.3d 486, 495 (3d Cir. 1997)
(holding that caseworkers' "immunity is broad enough to include
the formulation and presentation of recommendations to the court
in the course of such proceedings."); Miller v. Philadelphia,
174 F.3d 368, 375 (3d Cir. 1999) (declining to extend the
immunity to investigative or administrative acts). As such,
Plaintiffs are entitled to present evidence which falls outside
the scope of this narrow exception.
4. Negligence of Private Actors.
Finally, Defendants suggest that they are not responsible for
the abuse to the children because the abuse itself was caused by
the adoptive parents, who are private actors. Under the
circumstances of this case, the argument lacks merit because the
negligence of the adoptive parents is not at issue. Though as a
general proposition the government is not required to protect
individuals against private violence, under certain
circumstances, affirmative duties of care will be imposed.
Nicini, 212 F.3d at 806. Cf. D.R., 972 F.2d at 1374
(discussing the liability which may arise when a states'
affirmative acts work to a plaintiff's detriment by exposing them
to danger). Furthermore, State law imposes certain separate
affirmative duties in the child placement context on the various
state agencies involved in this case. Child Placement Bill of Rights Act, N.J. STAT. ANN. 9:6B-1 to 9:6B-6 (1991). The failures
and actions by the state government which breached these
affirmative duties support a claim for negligence. Defendants'
argument also ignores those actions taken by the state to
intervene by placing the Plaintiffs into surrogate care, thereby
giving rise to affirmative duties.
D. New Jersey Law Against Discrimination. (Counts Twelve
The LAD prohibits discrimination against persons on the basis
of enumerated categories, which include persons who are
handicapped. N.J. STAT. ANN. § 10:5-4.1 (2000). The statutory
definition of "handicapped" has been construed broadly to cover
more than severe disabilities. See, e.g., Clowes v. Terminix
Int'l, Inc., 109 N.J. 575, 593 (1988); Olson v. Gen'l Elec.
Aerospace, 966 F. Supp. 312, 315 (D.N.J. 1997). However, the
statute only addresses discrimination in three areas of public
concern: employment, places of public accommodation, and housing.
N.J. STAT. ANN. § 10:5-12 (2000).
Plaintiffs allege that the individual Defendants and state
agency discriminated against them on the basis of their status as
persons with eating disorders, thereby violating the LAD. These
claims do not fall within the areas where discrimination has been
prohibited under the statute. Plaintiffs have not alleged that
they were denied employment or refused housing by DYFS. Nor is
DYFS considered to be a place of public accommodation. Doe v.
Div. of Youth & Fam. Servs., 148 F. Supp. 2d 462, 496 (D.N.J.
2001). The definition of a place of public accommodation is not
so broad as to include the services provided by a state agency
within the meaning of public accommodation. Instead, it refers to
facilities maintained for the use of the general public. See,
e.g., Nat'l Org. for Women v. Little League Baseball,
127 N.J. Super. 522 (App.Div. 1974), aff'd, 67 N.J. 320 (1974).
As a result, Plaintiffs have failed to properly state a claim
under the LAD. The claims under Causes of Action numbered Twelve
and Thirteen are thereby dismissed.
E. Joint Tortfeasors.
Defendants final effort to dismiss this action alleges that the
adoptive parents are necessary parties to the action and,
therefore, they must be joined pursuant to Rule 19. Fed.R. Civ.
P. 19. As a matter of law, joint tortfeasors are not
indispensable parties. Furthermore, neither the New Jersey
apportionment rule nor the case law interpreting it suggest that
joint tortfeasors must be named defendants in order for it to
apply. N.J. STAT. ANN. § 59:9-3 (limiting contribution by public
entities to the extent of the public defendant's percentage share
of culpability when joint tortfeasors are available). Cf. Frugis
v. Bracigliano, 177 N.J. 250 (2003). The District Court of New
Jersey has stated "it is never necessary . . . to join a joint
tortfeasor as a defendant in an action against other
tortfeasors." Rodin Props.-Shore Mall v. Cushman & Wakefield of
Pa., 49 F. Supp. 2d 709 (D.N.J. 1999) (Brotman, J.) Defendants
may implead the Jacksons under Rule 14(a) if they believe it is
necessary. FED. R. CIV. PROC. 14(a).
For the foregoing reasons, the court finds that Defendants'
Motion to Dismiss is denied with respect to Counts One through
Three under Section 1983, Count Six under the New Jersey Child
Placement Bill of Rights, and Count Eleven under the New Jersey
Tort Claims Act. Plaintiffs' Counts Four and Five under the New
Jersey Constitution, Counts Seven through Ten under New Jersey
statutes and regulations and Counts Twelve and Thirteen under the
Law Against Discrimination are hereby dismissed for failure to
state a claim for which relief can be granted. Count Fourteen was voluntarily dismissed by Plaintiffs. ORDER DENYING DEFENDANTS' MOTION TO DISMISS
THIS MATTER having come before the Court on Defendants State
of New Jersey, New Jersey Division of Youth and Family Services,
Department of Human Services and individually named directors' of
that agency Motion to Dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. This Court having reviewed the
submissions of the parties and having heard oral argument on the
IT APPEARING that the first three Counts*fn16 of
Plaintiffs' Complaint properly state claims for damages under
Section 1983 which are federal in character;*fn17
IT APPEARING that a private right of action against the State
is inherent within the New Jersey Child Placement Bill of Rights
Act (Count Six);*fn18 IT APPEARING that Counts Four, Five, Seven, Eight, Nine and
Ten of Plaintiffs' Complaint fail to state a claim because a
private right of action for damages is not explicitly available
under the New Jersey laws cited;
IT APPEARING that Count Eleven properly states a claim for
negligence and the State of New Jersey has waived sovereign
immunity as to negligence claims pursuant to the New Jersey Tort
IT APPEARING that Counts Twelve and Thirteen of Plaintiffs'
Complaint fail to state a claim under the New Jersey Law Against
IT APPEARING that Count Fourteen of Plaintiffs' Complaint was
voluntarily dismissed by Plaintiffs; and
FOR THE REASONS stated in the Opinion of the Court filed on
this same date;
NOW THEREFORE, it is on this 6th day of April 2005;
HEREBY ORDERED that Counts Four, Five, Seven, Eight, Nine,
Ten, Twelve, Thirteen and Fourteen under Plaintiffs' Complaint
shall be dismissed from the action for failure to state a claim;
FURTHER ORDERED that Defendants' Motion to Dismiss is
DENIED as to Counts One through Three, Six, and Eleven under