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R.H. and K.H., Married Individuals, As Natural Parents and Guardians v. George Mischenko and Victoria Mischenko

June 3, 2011

R.H. AND K.H., MARRIED INDIVIDUALS, AS NATURAL PARENTS AND GUARDIANS AD LITEM FOR THEIR MINOR SON, B.H., AND R.H. AND K.H., INDIVIDUALLY, PLAINTIFFS-RESPONDENTS/CROSS-APPELLANTS,
v.
GEORGE MISCHENKO AND VICTORIA MISCHENKO, HUSBAND AND WIFE, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2373-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 18, 2011 - Decided Before Judges A.A. Rodriguez, Grall and C.L. Miniman.

On September 1, 2004, B.H., the four-year-old autistic and non-verbal son of R.H. and K.H. (plaintiffs), was physically and sexually assaulted multiple times by Christine Mischenko. Christine, then twenty-three years old, was a behavioral therapist and a heroin user, and she was living with her parents, George and Victoria Mischenko. Since January 2003, she had been providing services for B.H. in his home either as an employee of New Horizons in Autism pursuant to a contract between New Horizons and the child's school district or directly pursuant to a private and independent arrangement with plaintiffs. On the date of the attacks, she was providing services to B.H. by arrangement with his parents, not through New Horizons. The September 1 assaults, as well as Christine's injection of heroin, were captured by a hidden camera installed by B.H.'s parents. They contacted the police, and in 2005, Christine pled guilty to endangering B.H.'s welfare and was sentenced to nine years of imprisonment.

In 2006, plaintiffs, on their own behalf and as guardians of their son, filed a civil suit for damages contending that the Mischenkos' negligence made them, as well as their daughter, liable for their injuries.*fn1 They relied on J.S. v. R.T.H., 155 N.J. 330 (1998), and the parents' failure to act to prevent the abuse inflicted on B.H. Relying on Sacci v. Metaxas, 355 N.J. Super. 499, 507 (App. Div. 1992), the Mischenkos contended they owed no duty to advise anyone of their adult daughter's drug problem. They filed a notice and demand under the frivolous litigation rule and statute, R. 1:4-8 and N.J.S.A. 2A:15-59.1, and moved to dismiss the complaint for failure to state a claim.

R. 4:6-2(e).

Plaintiffs did not withdraw the complaint and prevailed on the Mischenkos' motion to dismiss. Following discovery, the judge dismissed their complaint on summary judgment and denied the Mischenkos' application for fees. The Mischenkos appeal, and plaintiffs cross-appeal.*fn2

Both appeals turn on the legal issue of duty - a question of whether plaintiffs' interests are entitled to legal protection against the Mischenkos' conduct. J.S., supra, 155 N.J. at 338. We conclude that they are not. Nevertheless, because of the complexity of the question presented, we further conclude that plaintiffs' action was not frivolous. Accordingly, we affirm both orders.

Christine has a history of drug and alcohol use. When she was seventeen, she was caught with an open beer can in a park. Thereafter, she went to two counseling sessions; her mother went with her to a session on the danger of drugs and alcohol. According to the young man who was Christine's boyfriend from their last years in high school until her arrest, she experimented with drugs before she went to college. She used alcohol and marijuana in her parents' home when they were not there and had experimented with cocaine and ecstasy. She did not use heroin until her sophomore or junior year of college, when she was living away from home. When using heroin, she progressed from snorting the drug on occasion to injecting ever-increasing amounts three times a day.

Despite her drug use, Christine managed to do her course work and work part-time for New Horizons as an after-school aide. In that capacity, she was first assigned to work with B.H. in his home in January 2003. She apparently did well enough. In June 2003, at age twenty-two, Christine returned from college to live in her parents' home and work as a full-time behavioral therapist for New Horizons with B.H. and others. By September 1, 2004, she had been promoted and had told her parents about it.

After moving back come, Christine lived rent free and continued to use a car given to her by her parents and registered in her mother's name. She also continued her regular use of heroin, injecting herself with the drug in her bedroom and her car. At times, her boyfriend also used heroin in her bedroom; they were high in the presence of her parents on occasion.

In April 2004, the boyfriend's sister discovered him using heroin in his bedroom. Consequently, his mother alerted the Mischenkos, and they confronted their daughter. She acknowledged her heroin use and needing help. Thereafter, Christine admitted herself to a five-day in-patient program in Princeton; her parents drove her there but did not participate or receive any reports from the facility or its professionals. They did know she was supposed to attend Narcotics Anonymous on a regular basis.

When Christine returned home, she told her parents she was attending Narcotics Anonymous and resumed her work with New Horizons. They did not consider telling New Horizons about their daughter's in-patient treatment or her drug problem and did not monitor her abstinence or try to confirm her attendance at Narcotics Anonymous. Although the Mischenkos knew their daughter worked with autistic children in their homes through New Horizons, they did not know her clients or that she worked in any home when a parent of the child was not present. The Mischenkos stated that their daughter was home virtually every night and that she was regularly eating meals with the family. They explained that they had "no reason" ...


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