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Alegria M. v. Canella

August 6, 2009

ALEGRIA*FN1 M., AN INFANT BY HER GUARDIAN AD LITEM, LISA LOPEZ, PLAINTIFF,
v.
DEBI CANELLA, DEFENDANT/THIRD PARTY PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, THIRD PARTY DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1716-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2008

Before Judges Skillman, Collester and Grall.

Debi Canella appeals from the September 20, 2007, order of Judge W. Hunt Dumont dismissing her third-party complaint and granting summary judgment in favor of third-party defendant, State of New Jersey, Department of Human Services, Division of Youth and Family Services (Division or DYFS). We affirm.

The case arises out of the foster placement by DYFS of a six-month infant named Alegria with Debi Canella and her husband Jack Canella on August 5, 2003. At that time, Debi Canella was forty-six years old and had been married to her husband for twelve years. They had a biological child, then nine years old, and lived in Whippany. Ms. Canella was a "stay-at-home mother," and her husband operated a construction company.

In 2001, the Canellas made application with the Division to become foster parents. After background information, personal interviews, and a home inspection, Ms. Canella successfully completed a required training program. On October 4, 2001, she was approved by the Division as a foster parent. Ms. Canella and her husband then signed a Foster Family Care Agreement with the Division on October 5, 2001, which was renewed each year through 2003. Between 2001 and 2004, Ms. Canella was a foster parent to five children for different periods of time. In the fall of 2003, Ms. Canella agreed to be the foster parent for the six-month-old baby girl named Alegria. She said that the Division worker told her that there was a good possibility of adopting the child, and she and her husband set up an initial meeting with the Division to begin adoption proceedings.

On the morning of December 15, 2003, Ms. Canella went Christmas shopping and took Alegria with her. Alegria, then ten months old, was appropriately dressed in a down winter jacket and a hat, and Ms. Canella placed her in a rear-facing child car seat in the backseat behind the front passenger side. A mirror was attached to the headrest of the back passenger seat permitting her to see the child's face through the rear-view mirror.

After she concluded shopping, Ms. Canella placed Alegria back in the car seat, buckling the seat belt fastened between the child's legs. On the way home, she saw in the rear-view mirror that Alegria had spit up. She cleaned the child's mouth, and felt her head to determine that she did not have a temperature. After Alegria was given her pacifier, she fell asleep on the ride home. When they arrived at home, Ms. Canella pulled into the garage and closed the electronic garage door.

The garage was heated and attached to the home. A door led to a bathroom and laundry room on the same level, and a door led to a set of stairs to the next level where the kitchen and living room were located.

Alegria was still asleep in her car seat, and Ms. Canella elected to leave her in the car because she did not want to wake her up for fear she would not be able to fall back asleep. Ms. Canella said she left the car window open as well as the door between the garage and the lower level so that she could hear Alegria when she woke up. Ms. Canella unloaded her packages from the car, sorted them, went to the bathroom, spoke on the telephone, ate a sandwich for lunch and smoked a cigarette. She said that she checked on Alegria several times.

When she opened the car door to remove Alegria from the car seat, Ms. Canella saw that the seat belt that was fastened between her legs was unbuckled, and that she was pale and not breathing. She patted Alegria on her back, placed her on the garage floor and began CPR. She then called 9-1-1, and the operator told her to continue CPR until help arrived. When she saw that Alegria's tongue was swollen and pushed back in her throat, Ms. Canella pulled the tongue forward and held it down while she continued to administer CPR.

Within minutes the Hanover Township Police Department arrived and took over application of CPR until EMS workers arrived. Because she was cyanotic, Alegria was intubated and transported by ambulance to the Morristown Memorial Hospital emergency room where was diagnosed with "traumatic asphyxia." Ms. Canella certified that she remained at the hospital for forty-eight hours while Alegria was being treated.

Ms. Canella and her husband were interviewed by the Hanover Township police and the Morris County Prosecutor's Office at the hospital, and it was determined there was no criminal neglect and no need for further investigation. They were also interviewed by Lina Gaza on behalf of the Division and were told that Alegria was to be removed from their custody pending the Division's investigation of child neglect. On December 24, 2003, Ms. Gaza told the Ms. Canella and her husband that they would receive the ...


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