August 6, 2009
ALEGRIA*FN1 M., AN INFANT BY HER GUARDIAN AD LITEM, LISA LOPEZ, PLAINTIFF,
DEBI CANELLA, DEFENDANT/THIRD PARTY PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Division's decision on whether there was child neglect within thirty days. Meanwhile Alegria was placed in another foster home.
On February 23, 2004, Ms. Canella received a letter from the Division regional supervisor stating:
Neglect, failure to provide appropriate supervision, was not substantiated, in accordance with N.J.S.A. 9:6-8.21. However, there was some information that raised concerns about your actions. No adjudicative findings have been made, however, as the Division's findings are investigative.
After receiving this letter, Ms. Canella contacted the Division regarding Alegria returning to her home, but received no response. Then in early March she was told that Alegria would not be returned. She tried to appeal the decision but on March 16, 2004, she was told that according to agency regulations, N.J.A.C. 10:120A-3.1(a)(3), she was not entitled to appeal because under agency regulation, N.J.A.C. 10:120A-31(a)(3), a foster parent had the right to appeal the removal of a child only after the child has been living with the foster parent for at least six months and Alegria had lived with her for four months.
On April 1, 2004, the manager of the Foster Home Licensing Unit of the Department of Human Services sent a letter to Ms. Canella and her husband informing them that their license as a foster home had been revoked because,
[t]he record shows that there were concerns raised regarding your actions during a recent investigation into your home. Specifically, it was determined that you placed a foster child in some degree of harm when you left her strapped in a car seat in a heated garage so that you could tend to activities in your home. In addition, you did not secure the child in the car seat upon your admission and it is also noted that if the foster child was in distress, you would not be able to hear her and respond in a timely manner.
The record also reveals that you failed to obey several violations in your home in spite of sufficient time and opportunity to do so. This includes that you did not maintain a life book for the foster child in your home and did not provide appropriate documentation for the firearms that you possess.
Ms. Canella and her husband sought administrative review of the revocation of their foster care license. Meanwhile, on May 24, 2004, she received a letter from the Division Abuse Investigation Unit stating that the finding in the Division's February 23, 2004, letter, that child neglect was not substantiated "was previously issued in error and should be disregarded" and that "your failure to provide appropriate supervision was substantiated regarding your actions." The letter further advised that her name would appear on a central registry which would preclude her from having employment involving children. Ms. Canella then sought appeal of the determination of substantiated child neglect.
A settlement agreement was reached between Ms. Canella and the Division. The Division changed its finding of "substantiated neglect" to "not substantiated" and removed her name from the central registry. Ms. Canella and her husband then withdrew their appeal of their foster home license revocation.
On September 8, 2005, a complaint was filed for Alegria by her guardian ad litem against Ms. Canella based on the incident of December 15, 2003, and alleging negligence, gross negligence, negligent compliance with the law, neglect and abuse. The third count charged "willful disregard" alleging that Ms. Canella's conduct was "outrageous, wanton and willful, in reckless indifference to the rights, safety, and interest of [Alegria], and taken with conscious disregard of her duties and obligations."
Ms. Canella requested representation under the Division's Foster Parent Liability Program (FPLP), a State contractual program which covers losses incurred by foster parents as well as legal representation and coverage on third-party claims up to $100,000. However, except for some property damage claims, all FPLP liability coverage is secondary to private insurance. Here FPLP coverage was secondary to Ms. Canella's automobile insurance. The automobile carrier provided Ms. Canella with a defense for all counts of the complaint except the third count alleging willful neglect. Moreover, under the FPLP coverage was excluded for "any act or omission by a foster parent involving... willful, malicious or intentional misconduct...." Since the willful disregard count alleged such misconduct, the FPLP did not provide representation to Ms. Canella. As a result Ms. Canella retained private counsel to defend against the willful disregard count, and she filed a third-party complaint against the Division for damages including payment of her counsel fees.
Ms. Canella's attorney filed a motion for partial summary judgment on the willful disregard count, and on April 3, 2007, partial summary judgment was granted and the count dismissed on grounds that there was no evidence Ms. Canella acted with conscious wrongdoing or with knowledge of a high degree of probability and reckless indifference to consequences. Thereafter, on June 8, 2007, the third-party action by Ms. Canella against the Division was severed from the remaining negligence counts of the complaint filed on Alegria's behalf. The negligence action was subsequently settled, leaving only Ms. Canella's third-party action against the Division.
On July 3, 2007, the Division moved for summary judgment on Ms. Canella's complaint. There was no opposition to the dismissal of eight of the sixteen counts. There remained the following allegations: indemnification for Ms. Canella's damages on the theory that the Division's liability was primary; negligence based on a claim of the Division's breach of duty; violation of the Law Against Discrimination (LAD); fundamental unfairness; violation of public policy because the Division's actions discouraged foster parenting; breach of the foster parent agreement; breach of implied condition of contract; ambiguity of the foster parent agreement; and violation of a covenant of good faith and fair dealing under the foster parent agreement. Judge Dumont granted the motion of the Division for summary judgment on all counts.
There are no genuine issues of material fact to preclude summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 541 (1995). We find no legal basis in contract or tort in support of Ms. Canella's argument that the Division has a duty to advise foster parents that they could be sued if they injure a foster child in their care. Ms. Canella relies on the Foster Family Care Agreement to support her contention and argues further that if the Division does not so advise a foster parent, it is obligated to provide a legal defense to the foster parent and indemnify. However, the agreement deals with the reciprocal responsibilities of the foster parents and the Division for care of children rather than any independent interest of the foster parent. There is neither an express nor implied provision as to any duty to defend, indemnify or notify foster parents that they are subject to suit by a foster child for willfully or wantonly causing injury to the child.
Furthermore, there is no support for Ms. Canella's contention that a foster parent may recover from the Division for the costs of defending a personal injury action by a foster child.
We find that the arguments made on Ms. Canella's behalf are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).