On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2153-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011
Before Judges Payne and Hayden.
Plaintiff, Peggy Anne Reinhardt, appeals from an order of summary judgment dismissing her complaint against Beatris Ortiz, an employee of the Department of Youth and Family Services (DYFS), for failure to provide timely notice of Reinhardt's tort claims and for failure to plead willful misconduct that would except Ortiz's conduct from the protections of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. We affirm.
The events in issue occurred in August 2009 and arose out of an ongoing custody dispute between Reinhardt and her two- year-old son's father, Robert Page. On June 12, 2009, Reinhardt had caused an order to show cause to be issued that permitted Page to have parenting time with his son on alternating Saturdays and Sundays from 11:00 a.m. to 5:00 p.m., but stayed pending further order an earlier order permitting Page to have overnight parenting time with the child. The return on the order to show cause was scheduled for June 18, 2009. However, on June 17, 2009, the parties consented to an order that maintained in effect the provisions of the June 12, 2009 order until further order of the court and cancelled the court appearance on the order to show cause.
On August 20, 2009, while the child was in Reinhardt's custody, he fell down the stairs, sustaining two bruises along his spine. The boy was taken to his pediatrician, who confirmed that the bruising was consistent with a fall down the stairs and found that no permanent injury had been sustained. On Saturday, August 22, 2009, Page took custody of the child in accordance with his scheduled visitation. However, when Page saw the bruising, he suspected abuse and took the child to Morristown Memorial Hospital, which informed DYFS. Special Response Unit (SPRU) worker, Beatris Ortiz, responded, examined the bruises, and determined to effect an emergency removal of the child from his mother's custody. Over Reinhardt's objection, and despite the Family Court orders of June 12 and 17, 2009, which Reinhardt allegedly brought to Ortiz's attention, Ortiz placed the child with the father, where he remained until Monday, August 24, 2009. At that time, a DYFS representative spoke to the child's pediatrician, confirmed that the injuries were accidental, and returned the child to Reinhardt. Reinhardt states that she has now been awarded sole custody of the child.
Shortly after the events in issue, on September 3, 2009, plaintiff wrote an e-mail to Commissioner Ricketts and Cristine Mozes at the Department of Children and Families (DCF) complaining about Ortiz's conduct. After describing what had occurred, Reinhardt wrote:
I am very sorry to have had this experience. It was terrible having to spend two days with out [sic] my son under unjust allegations simply because Mrs. Ortiz is a weekend response officer whom refused to adhere to a court order or even investigate properly. [Y]ou view the attachment*fn1 you can see there were prior concerns about my son[']s father being rough with our child.
I understand f[or] child's safety a court order can be superseded but Mrs. Ortiz placed my child based on negligence and ignorance. I am requesting disciplinary action and an ethics evaluation be placed upon Mrs. Ortiz.*fn2 The e-mail did not threaten suit, requesting only administrative action against Ortiz. Additionally, the notice lacked an address for plaintiff, and because it was an e-mail, it was not signed.
DYFS acknowledged receipt of "correspondence to Governor Jon S. Corzine regarding your involvement with the Division of Youth and Family Services"*fn3 by letter dated December 11, 2009.
The letter stated that Reinhardt's correspondence had been misdirected to the Essex North local office, but upon realizing that a Morris County worker was involved, the matter was forwarded to Executive Management in Morris County ...