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
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.)
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 ...