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N.E. v. State, Department of Children and Families

Superior Court of New Jersey, Appellate Division

April 4, 2017

N.E., AS LEGAL GUARDIAN FOR INFANT J.V., Plaintiff-Respondent/ Cross-Appellant,

          Argued December 16, 2015.

         On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3980-10.

          Edward J. Dauber argued the cause for appellants/cross-respondents (Greenberg Dauber Epstein & Tucker and Greenbaum Rowe Smith & Davis, attorneys; Mr. Dauber, Linda G. Harvey, Kathryn B. Hein and John D. North, on the brief).

          David A. Mazie argued the cause for respondent/cross-appellant (Mazie Slater Katz & Freeman, attorneys; Mr. Mazie, of counsel and on the brief; David M. Estes, David M. Freeman and Beth G. Baldinger, on the brief).

          Before Judges Fuentes, Koblitz and Kennedy.

          FUENTES, P.J.A.D.

         On January 10, 2012, J.V. pled guilty before the Law Division, Criminal Part to second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and fourth degree child abuse, N.J.S.A. 9:6-1, against his then four-month-old son J.V. ("Baby Jesse").[1]As required by Rule 3:9-2, J.V. described under oath the facts supporting his guilty plea. He testified that on the morning of July 16, 2009, Baby Jesse's mother, Vivian, "dropped [his] son off" at his apartment. J.V. admitted that "at this point in time, " he was aware there was an order in effect from the Division of Youth and Family Services (the Division) prohibiting him from having "unsupervised contact" with Baby Jesse.

         J.V. admitted that when his infant son began to cry, he shook him with great force, knowingly "disregarding the risk" that the child would be injured. Baby Jesse "slipped" from his hands and "fell to the floor . . . [and] hit his head." J.V. called 911 when he noticed Baby Jesse was not breathing. J.V. acknowledged that as a direct result of his actions, Baby Jesse was "seriously injured." N.J.S.A. 2C:11-1(b) defines "[s]erious bodily injury" as an injury "which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" It is undisputed that Baby Jesse suffered catastrophic injuries.[2]

         It is also undisputed that after investigating a previous allegation of abuse, the Division had entered into a case plan agreement with Baby Jesse's mother, "Vivian, " and maternal grandmother, N.E. (the child's legal guardian). Both women agreed not to permit J.V. to have unsupervised access to Baby Jesse. This agreement was in effect at the time J.V. physically assaulted his son, with one modification. At Vivian's request, N.E. was replaced by the child's maternal grandfather, U.M. ("Ugo"), and his wife, L.M. ("Linda") as caretakers while Vivian was at work.

         Vivian was on her way home from work when her stepmother, Linda, asked her for permission to leave Baby Jesse alone with J.V. to go wash her car. Because Vivian thought she was approximately twenty minutes away from her home, she told Linda it was alright. Less than ten minutes later, Ugo called Vivian to tell her Baby Jesse was in the hospital.

         Approximately four months before J.V. pled guilty, Baby Jesse's maternal grandmother, N.E., [3] filed this civil action against the State of New Jersey, Department of Children and Families (the Division); Division caseworker Felix Umetiti; and Umetiti's supervisor, Nussette Perez. In addition to these state government parties, plaintiff named as defendants Newark Beth Israel Medical Center, Overlook Medical Center, and a number of other professionals who provided medical services to Baby Jesse. Plaintiff settled her claims against the non-public defendants for $7, 000, 000. The net proceeds of the settlement were used to establish an annuity and special needs trust for the benefit of Baby Jesse.[4] Thus, this appeal concerns only the Division and its employees.

         Plaintiff's claims against the Division are predicated on the doctrine of respondeat superior. Plaintiff argues this court must hold the Division vicariously liable for a series of discretionary decisions made by Division caseworker Umetiti and his supervisor while investigating plaintiff's allegations of child abuse and parental unfitness on May 28, 2009. Plaintiff alleged Umetiti and Perez negligently failed to remove Baby Jesse from his parents' custody, despite evidence showing his father was mentally unstable and physically abusive.

         The Division argued before the trial court that the Torts Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3, bars plaintiff's claims against Umetiti and his supervisor, because the decision on whether to remove a child from the care and custody of a parent or legal guardian inherently involves the exercise of human judgment and discretion. Under these circumstances, the TCA provides public employees with absolute immunity from civil liability. N.J.S.A. 59:3-2(a). At the charge conference, the Division also argued it was entitled to qualified immunity under N.J.S.A. 59:3-3. The trial judge rejected defendants' application as a matter of law and instructed the jury to consider the good faith immunity of N.J.S.A. 59:3-3 only with respect to certain aspects of the investigation. The trial court held the Division was subject to civil liability if it negligently performed or failed to perform any one of sixteen "ministerial tasks" while deciding whether to exercise its discretionary authority to remove the child from his parents' custody.

         The trial court also rejected the Division's argument for absolute immunity under N.J.S.A. 59:3-2(a), characterizing the Division's removal of a child from his parents' custody as a ministerial act that a jury can assess under an ordinary negligence standard. The court relied on Coyne v. DOT, 182 N.J. 481 (2005), to hold that the caseworker's decision to permit Baby Jesse to remain with his parents, conditioned upon plaintiff and the child's mother agreeing not to allow J.V. to have unsupervised access to the child, was not a discretionary act under N.J.S.A. 59:3-2(a) because "no high level policy making" was involved. The court noted that none of the Division employees were "the lead employee in the office, let alone[] the agency." Finally, the court held the jury was capable of determining whether the Division's decision was "palpably unreasonable." N.J.S.A. 59:3-2(d).

         The case was tried before a jury for a period of approximately three weeks, spanning from November 19, 2013 to December 13, 2013. The jury found that in failing to remove Baby Jesse from his parents' home, the Division and its employees acted negligently. The jury further found that the Division's negligence served as the proximate cause of Baby Jesse's injuries. An interrogatory on the verdict sheet read: "Did the DYFS defendants prove that leaving [Baby Jesse] in the home was not palpably unreasonable?" The jury unanimously responded: "No."

         On the question of apportionment under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.17, the Division presented evidence showing that on June 12, 2009 (five weeks before J.V. assaulted Baby Jesse), the Division had in place a safety plan that involved the voluntary participation of three key family members. In an effort to keep the family united, Ugo and Linda voluntarily agreed to care for Baby Jesse during the time Vivian was at work. The principal purpose of the plan was to never leave Baby Jesse alone in J.V.'s care.

         Immediately after the jury announced its verdict on liability, the trial judge informed the jury that J.V. had also been found responsible for the harm to Baby Jesse. After the judge instructed the jury on the legal concept of apportionment, the court permitted counsel to present closing arguments limited to this question. The jury verdict sheet on apportionment required the jury "to allocate to each of the following the percentage by which that person or persons contributed to [Baby Jesse's] injuries:" the DYFS defendants (Umetiti, Perez, and Powell), J.V., Vivian, Linda, and Ugo.

         The jury found the Division 100 percent liable and absolved the remaining parties of all liability. The verdict sheet reflects the jury specifically wrote "0" next to J.V.'s name, and crossed out the remaining names. On the question of damages, the jury awarded $105, 000, 000 to cover the cost of providing future medical services to Baby Jesse; $57, 670, 000 for pain and suffering; $1, 410, 343 for lost wages; and $1, 892, 160, representing the value of the services plaintiff had provided to Baby Jesse.

         The trial judge thereafter entered judgment against defendants for $165, 972, 503, constituting the total damages described herein, plus $1, 432, 872.81 for satisfaction of a Medicaid lien. The judgment credited defendants with $7, 475, 000, representing the proceeds of the settlement plaintiff reached with the medical care providers. Defendants filed a motion for judgment notwithstanding the verdict, which the court denied. The court also denied defendants' motion for a new trial. The court partially granted defendants' motion for remittitur, reducing the damages for future medical expenses and life care to $75, 868, 321, or, at plaintiff's election, a new trial. In accordance with its decision on remittitur, the trial court entered a final judgment against the Division in the amount of $56, 901, 240 for future medical expenses; $43, 252, 500 for pain and suffering; $1, 057, 575.25 for loss of future income; and $1, 419, 120 for past services.

         In this appeal, we are required to determine whether the State of New Jersey can be held vicariously liable for the catastrophic injuries Baby Jesse suffered as the result of his father's criminal act. The basis of liability is a caseworker's decision to explore the viability of a voluntarily adopted safety plan, rather than taking immediate action to remove the child from his parents' home without their consent. Based on these uncontested facts, we hold the Division caseworkers were entitled to judgment notwithstanding the verdict based on the qualified immunity afforded to public employees who act in good faith in the enforcement or execution of any law. See N.J.S.A. 59:3-3.

         The decision to remove a child involuntarily from the custody of a parent or guardian is governed by a comprehensive statutory scheme. Plaintiff failed to establish, as a matter of law, that the decision the Division reached here was contrary to the law or lacking in subjective good faith. An ordinary negligence standard is an insufficient basis to impose civil liability on a public employee involved in the execution of the law. As a matter of public policy, the Legislature adopted the TCA to insulate the State from civil liability under these circumstances. For these reasons, we reverse the jury's verdict and vacate the final judgment entered against defendants in the amount of $165, 972, 503, as well as the $1, 432, 872.81 to satisfy the Medicaid claims.


         May 28, 2009 Incident and Investigation

         Vivian was eighteen years old when she gave birth to Baby Jesse in 2009. She resided with plaintiff (her mother) and plaintiff's husband. Vivian moved out of plaintiff's home when Baby Jesse was one month old. She stayed with J.V. and the child's paternal grandmother for approximately one month, at which point she and J.V. found their own apartment. Plaintiff took care of the child three or four times per week to enable Vivian to work at a Dunkin Donuts.

         When Vivian dropped the baby off on May 28, 2009, plaintiff noticed he had bloodshot eyes and bruises on both cheeks. Plaintiff took the child to the Dunkin Donuts where Vivian worked to show her the injuries. Plaintiff testified that Vivian began to cry and told her J.V. "was treating the baby badly." Plaintiff reported the child's bruises and Vivian's allegations of abuse to the Division when she returned home. According to plaintiff's testimony, she also told the Division she believed J.V. was "crazy, " had "bipolar, " was using illegal drugs, and was physically abusive to Vivian.

         Caseworker Felix Umetiti was assigned to the Division's Union County office when he received the screening summary for the case on May 28, 2009 at 1:40 p.m. His title at the time was Family Service Specialist I, which involved "investigating cases assigned to [him], going out in the field to do the actual investigation, [and] get[ting] to know [the] collaterals within the time frame allotted . . . through the policy."

         Nussette Perez was Umetiti's direct supervisor. Perez began working for the Division in 2000. She was in charge of the Division's Union County office at the time plaintiff called to report her allegations of abuse against J.V. As a supervisor, Perez was required to oversee the cases assigned to five caseworkers. These caseworkers carried a caseload ranging from twelve to twenty families. Perez's responsibilities included: (1) conducting pre and post-investigation conferences; (2) guiding and supervising the caseworkers as they gathered information; (3) reading and approving all investigation reports; (4) ensuring investigation reports were electronically entered into the Division's computer records; (5) ensuring risk assessments and contact sheets were properly recorded; and (6) ensuring compliance with Division timeframes.

         According to procedure at that time, the Division had sixty days from May 28, 2009 to complete its investigation and make a determination as to what services it would provide the family and what legal action, if any, was required to ensure the family's safety. N.J.A.C. 10:129-5.3(c) .[5] The initial part of the investigation was to occur within the first fourteen days. N.J.A.C. 10:129-2.8(b). The second phase required a formal investigation where the Division would interview more people, gather collateral information, and make assessments to determine what course of action was required. See N.J.A.C. 10:129-2.9.

         Umetiti visited plaintiff's home on May 28, 2009. He met with plaintiff, plaintiff's husband, and Vivian. He also personally examined and photographed Baby Jesse, confirming the infant had visible bruises on his face and blood in his eyes. Plaintiff and Vivian then transported the baby to Newark Beth Israel Hospital, while Umetiti followed behind in a state-owned car.

         At the hospital, plaintiff told Umetiti that she believed J.V. suffered from bipolar disorder. Plaintiff claimed J.V. was not taking any legitimate medication for his illness, relying instead on illicit drugs to self-medicate. Plaintiff also claimed J.V. "used to beat up [his] ex-girlfriend[.]" Plaintiff told Umetiti that Vivian was afraid of J.V., and she showed him Vivian's bruises.

         At the hospital, Umetiti also interviewed Vivian about Baby Jesse's injuries. Vivian told Umetiti she first noticed Baby Jesse had blood in his eyes on May 19, 2009. She took him to his pediatrician, who told her "that it will resolve itself within a couple of weeks[.]" According to Vivian, the doctor also told her that infants sometimes have this condition. However, on May 22, 2009, Vivian took the baby to another physician for a second opinion. This doctor told her to take her son to the hospital. Vivian followed the doctor's instructions and took Baby Jesse to Overlook Hospital in Union County. The hospital told her that Baby Jesse's condition could have been caused by sneezing, coughing or straining.

         Umetiti also asked Vivian about J.V.'s behavior toward the baby. Umetiti testified that Vivian told him she had "never seen [J.V.] getting aggressive or losing patience around the child[.]" Vivian stressed that "he has never been a problem[.]" Umetiti asked Vivian about plaintiff's specific allegation that Vivian had seen J.V. shake the baby. Vivian flatly denied it. In fact, at no point during the entire investigation did Vivian ever tell Umetiti that she was concerned about J.V. abusing the baby.

         Umetiti also asked Vivian about domestic violence in connection with the bruise he saw on her arm. She denied any allegation of domestic violence and attributed the bruises to "rough sex." Given the seriousness of the allegations, Umetiti asked Vivian to repeat the responses she had given to him in front of her mother. Umetiti testified that Vivian again vehemently denied her mother's allegations. With respect to J.V.'s mental state, Vivian confirmed that he had been diagnosed with bipolar disorder "at the age of five." However, she did not know whether a physician was treating him at the time. Vivian told Umetiti that J.V. was not taking any medication. Although he used marijuana as a teenager, she did not know whether he was currently using drugs. Umetiti accepted Vivian's account of these events as truthful.[6]

         The physician who examined Baby Jesse at Newark Beth Israel Hospital told Umetiti that a CT-Scan and other diagnostic tests showed no fractures or skeletal problems. The doctor's only concern was the unexplained injury around the infant's neck area. Based on this, the doctor told Umetiti he "couldn't rule out possible child abuse and he suspected child abuse." The doctor did not testify at trial.

         After this initial encounter, Umetiti personally visited Vivian and Baby Jesse on June 1, 2009, and June 12, 2009. He also received what he characterized as "regular reports" from plaintiff and Vivian confirming that Baby Jesse was "doing okay." Umetiti testified that on June 12, 2009, he met with Vivian, J.V., plaintiff, and plaintiff's husband at the Division's conference room to discuss a plan for the family to consider going forward. The family members agreed to a "case plan, " which required J.V.'s cooperation and plaintiff and Vivian's active participation. Vivian agreed to care for her infant son during the day and to never allow J.V. to have unsupervised access to the child. Plaintiff agreed to care for her grandson at night when Vivian was at work.

         Umetiti testified that he contacted his supervisor, Perez, to explain the details of the case plan and obtain her input and approval. Furthermore, he asked Perez to join him in the Division conference room when he met with the family to explain the case plan's conditions. Umetiti also wanted some form of medical confirmation and explanation of J.V.'s psychiatric problems.

         The terms of the case plan were memorialized in a document signed by all of the affected family members. Unfortunately, this document is not included in the appellate record. As described by Umetiti, the plan required J.V. and Vivian to submit to drug assessments. Vivian agreed to "have a responsible adult . . . supervise her son at all times [, ]" and to allow her mother to babysit. The parties further agreed that J.V. "must not be left alone with his son . . . unsupervised at any time." The case plan made clear that if J.V. violated this condition, the Division would seek judicial authorization to remove the child from his parents' custody.

         The case plan began on June 12, 2009 and was set "to expire" on June 30, 2009. When asked to explain the reasons for this eighteen-day limitation, Umetiti stated: "The 6/30 date I put there just to remind me ... I have to revisit to see where we are with . . . the case, what's going on. Because . . . you can't leave it indefinitely." Umetiti also gave the following response when asked how this plan addressed the risk of harm to Baby Jesse.

Q. Now, can you tell us how that addressed the risk . . . that this baby could be harmed[?]
A. The . . . fact that . . . all the parties involved voluntarily agreed they would comply with the . . . plan. And this [was] . . . [the] last chance to maintain this child in his own family environment.

         Plaintiff confirmed that Umetiti told all those who signed the case plan that J.V. was not permitted to be alone with Baby Jesse. Although not explicitly stated, plaintiff inferred that as a signatory to the case plan, she was the only adult authorized to care for the baby while Vivian was at work. Thus, on the day she signed the case plan, plaintiff called Ugo and Linda to make sure they knew J.V. was not allowed to be alone with the baby. On cross-examination, plaintiff also ...

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