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W.R. As Guardian Ad Litem For v. New Jersey Division of Youth & Family Services ("Dyfs")

May 1, 2012


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS , Senior District Judge:

Presently before the Court are two motions for summary judgment. (Dkt. Nos. 76, 78) In response, Plaintiff has voluntarily withdrawn every claim except for two counts of negligence against the minor children's foster mother, Defendant Renee Fountain. *fn1 For the following reasons, the motions will be granted.


Between September 19, 2000 and January 14, 2002, the new Jersey Division of Youth and Family Services ("DYFS") placed J.C. and L.C. - aged six and eight respectively - in Defendant Fountain's foster care. (Pl.'s Facts at ¶ 1) *fn2 In the summer of 2000, Fountain began dating Gilbert Harden. ( Id. at ¶¶ 10-12) In the basement of the Harden home lived Defendants Dwayne Wynne and Vivian Moore. ( Id. at ¶ 10) Fountain has known Wynne for many years and a reasonable inference can be made that Fountain knew of Wynne's prior convictions and incarcerations. *fn3 ( Id. at ¶¶ 19, 23-27)

On several occasions, Fountain brought the minor children to stay at Harden's house overnight, in part, to play with Harden's minor child. ( Id. at ¶¶ 39-40, 42) While at these slumber parties, Wynne is alleged to have sexually abused the minor children multiple times. ( Id. at ¶¶ 52-56) Though the minor children reported the incidents to Fountain after the abuse occurred, she did not contact DYFS or otherwise seek the help of state protective services. ( See Pl.'s Br. Appx., Exs. G, K) DYFS was not alerted until late February 2002, when the minor children's grandmother learned of the abuse. ( Id. at Ex. L)


"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines , 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas , 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex , 477 U.S. at 323). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986).


The two remaining counts against Fountain allege negligent supervision. Because the counts do not seem to differ in their allegations against Fountain, and Plaintiff does not argue otherwise, the Court will treat the two counts as asserting one claim for negligent supervision.

In support of her Motion, Fountain argues that she is protected by parental immunity. "[T]he doctrine of parental immunity ... preclude[s] liability in cases of negligent supervision, but not for a parent's willful or wanton failure to supervise his or her children." Thorpe v. Wiggan , 405 N.J.Super. 68, 72 (App.Div. 2009) (quoting Foldi v. Jeffries , 93, N.J. 533, 549 (1983). To establish willful or wanton conduct, "it must appear that the defendant with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result." Foldi , 93 N.J. at 549 (quoting McLaughlin v. Rova Farms, Inc. , 56 N.J. 288, 305-06 (1970). "[W]here willful and wanton conduct is not at issue, the immunity will only apply if a defendant's conduct implicates customary child-care issues or a legitimate exercise of parental authority or supervision." Thorpe , 405 N.J.Super. at 72.

Here, the undisputed facts indicate that Fountain authorized her children to have a slumber party with her paramour's minor child. Fountain had no prior knowledge of Wynne's sexual predatory behavior. Even inferring that Fountain knew of Wynne's criminal history, including a felony robbery conviction, nothing suggests that Fountain had reason to suspect that her foster children were in danger of being sexually molested. *fn4 Accordingly, Fountain leaving the foster children unmonitored in her paramour's home was a customary child-care decision that can scarcely be said to be a wanton decision. To hold otherwise would subject parents to liability for the misconduct of all friends and acquaintances left temporarily unaccompanied with minor children.

Furthermore, Fountain's failure to report the abuse, though deplorable, did not cause further abuse. Fountain only learned of Wynne's alleged crimes after the last instance of abuse. Despite the tragic injuries alleged in this case, there is no legal basis to hold Fountain liable. As all other claims have been ...

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