On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1583-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Following the tragic death of her infant son at the hands of her husband, plaintiff Sandra Mejia filed this lawsuit against New Jersey Division of Youth and Family Services (DYFS), a DYFS case manager, Rasheeda Jamison, and her supervisor, Lori Toliver Johnson. She now appeals from an order granting summary judgment, dismissing her complaint. We affirm.
Plaintiff's son, Angel Cartegena, Jr. (Angel), was born on September 5, 2004. When plaintiff returned to work at the end of October 2004, Angel was cared for by a babysitter while she worked. Her husband, Angel Cartegena, Sr. (Cartegena), picked up Angel from the babysitter and cared for him as well.
On November 2, 2004, Cartegena picked up Angel from the babysitter at approximately 5:00 p.m. One hour later, he called plaintiff at work and told her that he saw blood in the baby's stool and on his diaper when he was changing the diaper. Plaintiff noticed red marks on Angel's left leg that appeared to be markings from two fingers.
Plaintiff brought Angel to a pediatrician the following morning. After examining the bruise, the pediatrician suspected child abuse and referred the matter to DYFS. DYFS called plaintiff to obtain the last name of the babysitter, but plaintiff did not know her last name and could only provide some personal information about her. DYFS performed a background Child Abuse Registry Inquiry on the plaintiff and Cartegena. No records were found for plaintiff; there was a record of a "confirmed fondle/touch" to a ten-year-old relative involving one "Angel Cartegena," but the records were insufficient to confirm or rule out Cartegena as the person named in that record.
Although her records reported an earlier contact, Jamison did not meet with plaintiff until November 8, 2004. Angel and his maternal aunt were present for the interview, but Cartegena was absent. No interpreter was used to assist in the interview of plaintiff, who is Spanish-speaking. Plaintiff expressed no concerns about Cartegena and stated that she was "okay" with him caring for Angel. She had suspected that the bruise was caused by one of the babysitter's children but the babysitter denied seeing any of the children going near Angel. Plaintiff gave Jamison the babysitter's first name and address. She stated that the babysitter had cared for Angel for three weeks but that the family would make other arrangements. Jamison inspected the apartment, found it to be "very clean and organized," and noted that there was sufficient food, diapers, clothes and toys for Angel. She observed that Angel was clean, had rosy cheeks, good skin color and smelled of baby powder. Angel was asleep at the time. Jamison did not inspect the bruise on Angel's leg because she did not want to wake him when plaintiff said that the bruise had faded. Further investigation was hampered by the screening worker's failure to obtain and accurately record critical information, such as contact information for the referring pediatrician, on the intake form. During the period between this first referral and the second referral on November 13, 2004, DYFS failed to interview Cartegena or the babysitter and failed to interview or investigate the other persons who regularly frequented the home, such as Angel's maternal aunt.
On November 13, 2004, at approximately 12:15 p.m., Cartegena called 9-1-1 and reported that he had found Angel unresponsive on the couch. Police responded, revived Angel, and transported him to Robert Wood Johnson Medical Center in Hamilton. Angel was then transferred to the Pediatric Intensive Care Unit in New Brunswick. Upon admission, Angel had massive brain swelling and retinal hemorrhages. He was diagnosed with Shaken Baby Syndrome. It was determined that the abuse had occurred twenty-four to ninety-two hours earlier. Angel died on November 15, 2004.
Plaintiff, Angel's maternal aunt and her paramour all stated that Angel had seemed fine when they left for work the morning that he was hospitalized. Plaintiff did not voice any suspicions about Cartegena, who subsequently pled guilty to causing Angel's death.
On June 16, 2006, plaintiff filed a complaint against DYFS and "John Doe" DYFS employees, alleging wrongful death. On October 10, 2006, plaintiff filed an amended complaint against DYFS, case manager Jamison, supervisor Toliver Johnson, and a "John Doe" DYFS centralized screening worker. Count One of the amended complaint alleged wrongful death, N.J.S.A. 2A:31-1 to -6. Count Two alleged that defendants deprived Angel of due process of law by failing to comply with Child Protection Investigative guidelines set forth in N.J.A.C. 10:129-1 to -6.4.
Defendants filed a motion for summary judgment on the grounds that plaintiff's failure to file a tort claims notice barred recovery on the wrongful death claim, N.J.S.A. 59:8-9, and that Count Two failed to state a claim upon which relief can be granted. The trial court granted the motion and dismissed both counts. Plaintiff's appeal is limited to the dismissal of the civil rights claim. Because that claim is alleged only against ...