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Mazzetti v. New Jersey Division of Child Protection and Permanency

United States District Court, D. New Jersey

September 4, 2019

DENNIS MAZZETTI, individually and on behalf of D.M. as the "next friend" of D.M. a minor, Plaintiff,
v.
THE NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY (“DCP&P”) (formerly Division of Youth and Family Services), et al., Defendants.

          OPINION

          KEVIN MCNULTY. U.S.D.J.

         Plaintiff Dennis Mazzetti brings this action alleging a bevy of constitutional violations committed during the process of terminating his parental rights over his child, D.M., and later, when the child was in the custody of Mazzetti's mother. This matter comes before the court on a motion for summary judgment filed by defendants Kimberly Roberts and Erica Zapata. (DE 42). For the reasons set forth below, the motion will be GRANTED.

         I. Background[1]

         A. The Parties

         The relevant figures in this action are Mazzetti; his mother, Linda; his brothers, Dennis and Daniel; his child, D.M.; the child's mother, C.H.; and D.M's half-sister CM. Defendants Roberts and Zapata are employees of the New Jersey Department of Child Protection and Permanency ("DCP&P").

         B. Facts

         D.M. was born on March 11, 2007 to Mazzetti and C.H. (DE 56 ¶ 1). He was born with cocaine in his system and, following his release from the hospital, he was placed in a foster home. (DE 56 ¶¶ 2-3). A few months later, Mazzetti's mother, Linda, agreed to care for D.M. and D.M. was placed in her home. (DE 56 ¶ 6). Linda eventually adopted D.M. (DE 56 ¶ 6).[2]

         At some point, DCP&P sought to terminate Mazzetti's parental rights based on the best interests of the child. (DE 56 ¶ 8). Mazzetti could not provide for D.M. without assistance from Linda. During the termination proceedings, DCP&P workers testified that he "failed ... to plan for [D.M.'s] future" and "abandoned his minor child to the care of others." (Compl. ¶¶ 64-68, 73, 76, 79-84).

         Mazzetti's rights over D.M. were terminated by the Family Part of the New Jersey Superior Court. (DE 56 ¶ 9). He appealed, and in January 2012 the Appellate Division of the New Jersey Superior Court affirmed the trial court's denial of Mazzetti's parental rights:

We only briefly observe with regard to these two prongs that the record abundantly demonstrated that defendant failed to obtain or maintain stable employment and was unable or unwilling to secure adequate housing for the child. He refused for several months to comply with the Division's reasonable request and the trial court's order that he submit to hair follicle drug testing even when his right to visitation hung in the balance.2 In addition, the judge relied on the Division's expert, Dr. Alice S. Nadelman, who concluded that defendant would "not be physically or psychologically able to take care of his son for the foreseeable future." Indeed, defendant's own expert, Dr. Marc Friedman, reached a similar conclusion, expressing an opinion that he did "not believe [defendant] has the maturity or judgment to raise a child." In his thorough findings of fact, the trial judge properly reached the conclusion that these circumstances clearly and convincingly demonstrated that defendant had exposed the child to a substantial risk of harm and defendant was unable or unwilling to eliminate that harm.[3]
[fn. 2] When defendant finally submitted to hair follicle drug testing months after it was sought, he tested positive for cocaine.
[fn. 3] Defendant also contends the Division failed to make reasonable efforts to provide services to him. We find this argument to be meritless. R. 2:11-3(e)(1)(E). The Division provided a psychological evaluation, parenting classes and substance abuse treatment. Services were offered to assist defendant in obtaining housing and employment. That these efforts largely failed to bear fruit is not the test. Indeed, defendant alone stood in the way of his obtaining employment or a suitable home, making it clear to the Division's caseworker that he "could get his own work when he chose to," and that he had funds available to secure housing.

New Jersey Div. of Youth & Family Servs. v. DM., No. A-2509-09T3, 2012 WL 127437 at *2 & nn.2 & 3 (N.J.Super.Ct.App.Div. Jan. 18, 2012) (citing In re Guardianship of D.M.K, 161 N.J. 365, 393 (1999); see also DE 56 ¶ 10.)

         Mazzetti sought and was denied review first from the New Jersey Supreme Court and then from the Supreme Court of the United States. See N.J. Dep't of Children and Families, Div. of Youth and Family Servs. v. DM., 210 N.J. 218 (May 9, 2012); DM. v. N.J. Dep't of Youth & Family Servs., 133 S.Ct. 571 (Oct. 29, 2012). In the interim, on August 23, 2012, Mazzetti filed a federal court complaint that substantially overlaps the subject matter of this action. (DE 56 ¶ 13). Mazzetti's filing of that case, Mazzetti v. New Jersey Division of Child Protection Permanency, Civ. No. 12-5347 (D.N.J.), is claimed here to be the basis for defendants' alleged acts of retaliation.

         On or about March 7, 2014, Linda was hospitalized. (DE 56 ¶ 10). While Linda was in the hospital, D.M. remained-as Linda intended-in the care of his uncle, David. (Ex. A at 3). On June 23, David was hospitalized and tested positive for opiates, PCP, benzodiazepines, and amphetamines. (Ex. A at 3). At that time, Mazzetti and his other brother Daniel acted as primary caretakers for D.M. and his older sister. (Ex. C at 6). On July 1, 2014, David returned home. (Ex. A at 3). According to a later court order, at this point "[t]here were continued concerns about substance abuse and parenting ability" of all three brothers. (Ex. C at 6; see also Ex. A at 3). Because of these concerns, a local DCP&P office manager decided to remove D.M. from Linda's care. (Ex. G 34:1-6).

         On July 1, 2014, DCP&P caseworker Kimberly Roberts conducted an emergency removal of D.M. from Linda's home. (I further discuss Roberts's involvement below.)

         On July 3, 2014, Hon. Bonnie Mizdol, Presiding Judge of the Bergen County Family Part, held a hearing on an Order to Show Cause with Temporary Custody and Appointment of a Law Guardian. (Ex. A). Mazzetti's brother David attended in person and Linda appeared by telephone. (Ex. A). Finding it to be in D.M.'s best interest, Judge Mizdol terminated Mazzetti's visitation rights. (Ex. A). D.M was placed back into foster care. (Ex. B).

         Judge Mizdol found as follows:

The Division was granted custody of [CM.] on September 19, 2005 after it was confirmed that [C.H.] and Mr. Daniel Mazzetti were drug involved and [CM.] witnessed acts of domestic violence between [C.H.] and Mr. Mazzetti. On June 8, 2006, [CM.] was returned to [C.H.] after she successfully engaged in drug treatment, counseling and parenting classes. Mr. Mazzetti continued to be drug involved and tested positive for cocaine on numerous occasions. On March 11. 2007, Ms. Demeter gave birth to [D.M.]. [C.H.] and [D.M.] tested positive for cocaine the day of his birth. [C.H.] admitted she used a bag of cocaine on March 10, 2007. On September 27, 2007, the Division filed for Guardianship of [CM.] due to [C.H.]'s history of substance abuse and domestic violence and Mr. Mazzetti's ongoing substance abuse problems and psychiatric instability. In July of 2008, the Division filed for Guardianship of [D.M.] due to [C.H.]'s history of substance abuse and domestic violence and continued affiliation with Daniel and Dennis Mazzetti which caused the Center for Evaluation and Counseling to consider [C.H.] to be a high risk for relapse. Additionally, Dennis Mazzetti failed to cooperate with court ordered services and failed to obtain and maintain stable housing for him and [D.M.] to be apart from [C.H.] and Mr. Daniel Mazzetti. On August 5, 2009, [CM.] Kinship Legal Guardianship with Linda Mazzetti was finalized. On May 31, 2013, [D.M.]'s adoption with Linda Mazzetti was finalized.
On March 7, 2014, Linda Mazzetti was hospitalized after 7 year-old [D.M.] pushed-her down while throwing a tantrum and she broke her vertebrae. Ms. Mazzetti has suffered several falls since then and has not been able to be out of the hospital since this time. On June 30, 2014, Ms. Mazzetti told the Division worker she did not have the energy or the ability to care for [D.M.] anymore as he was such an active [sic].
On June 23, 2014, [D.M.]'s paternal uncle, David Mazzetti, who had been [CM.] and [D.M.]'s primary caregiver since Ms. Mazzetti was hospitalized, checked himself into the hospital for shortness of breath and chest pains and tested positive for opiates, PCP, benzodiazepines, and amphetamines. While both Linda Mazzetti and David Mazzetti were hospitalized, Mr. Daniel Mazzetti, whose child was in Kinship Legal Guardianship, and Dennis Mazzetti, whose parental rights of his child had been terminated, were acting as [D.M.] and [C.M.]'s primary caregivers. On July 1, 2014, David Mazzetti was released from the hospital and returned home. The Division worker spoke to Linda Mazzetti who indicated that it was her plan for David Mazzetti to be the primary caretaker for Cecilia and Daniel until she could return home. In addition to positive drug screens, when the Division workers spoke with Mr. Mazzetti on July 1, 2014, he appeared sweaty, pale, and fragile.

(Ex. A at 1-2). Judge Mizdol determined that the D.M.'s removal had been necessary based on an imminent danger to his life, safety, or health. (Ex. A at 2). She granted Linda and David simultaneous visitation rights twice a week for eight hours at a time. (Ex. A at 4). The order also makes clear that "[n]either Dennis Mazzetti nor [C.H.] shall have visitation with 7 yr old [D.M.]."

         Kimberly Roberts's Involvement

         As noted above, on July 1, 2014, DCP&P caseworker Kimberly Roberts conducted an emergency removal of D.M. from Linda's home.[4] (DE 56 ¶ 30). The removal was based on information provided by Deputy Attorney General Ellen Buckwalter, who, in a verified complaint, stated that Linda "was 'no longer able to care for [D.M.] due to her hospitalization." (Compl. ¶¶ 125-129, 134, 143; see also DE 60-3 at 6.).

         Roberts testified that at this time she was not aware that Mazzetti was the plaintiff in a pending federal lawsuit against DCP&P. (Ex. G 38:5-15).[5] judge in this district. There too, Mazzetti sued Indeed, Roberts's entire involvement in the case lasted only about two months (Ex. G 38:16-19), and she did not learn of the lawsuit until after her involvement had ended (Ex. G 38:12-15). During his deposition, Mazzetti conceded that he had no direct evidence that Roberts knew of his lawsuit:

Q. Okay. Going back to Miss Roberts, did she, at any time, specifically discuss with you the complaints, any complaints?
A. No.
Q. Okay. And she was never a defendant in any of your court filings . . . prior to this, correct?
A. That's correct.

(Ex. F 91:21-92:4. See also Ex. G 90:21-92:4 (Roberts not named as defendant in Mazzetti's federal action).).

         As noted above, the emergency removal was ratified by order of Judge Mizdol two days later, on July 3, 2014.

         Erica Zapata's Involvement

          During late summer or early fall 2014, and while still hospitalized, Linda executed a codicil to her will in which she appointed her son (Dennis, the plaintiff here) as D.M.'s guardian. (Ex. G 75:14-19). Linda then died and D.M remained in foster care. (Ex. B). At some time later in 2014, D.M.'s case with DCP&P was reassigned to Zapata. (Ex. H 15:24-16:13). After his mother's death, Mazzetti tried to regain custody of his son. (Ex. H 32:9-21).

         All the while, Mazzetti's first federal lawsuit remained pending. Like Roberts, Zapata was not a defendant in that action. (Ex. G 90:11-23).

         While Mazzetti sought custody of his son, DCP&P continued to provide Mazzetti certain services. These included substance abuse evaluations, psychological and psychiatric examinations, visits with his son, parenting classes, and a bus pass. (Ex. H 32:15-25; DE 56 ¶ 66). Zapata continued to work with both Mazzetti and D.M. (Ex. H 33:1-34:12).

         At the behest of DCP&P, psychologist Dr. Barry Katz evaluated Mazzetti, C.H., and D.M on several occasions. (Ex. C at 1). Those sessions were intended as forensic evaluations to determine the best interest of D.M. and assess the parenting capacity of Mazzetti and C.H. (Id. at 1, 17).

         Zapata's duties caused her, on several occasions, to cross paths with Dr. Katz. (Ex. H 33:6-35:2). Mazzetti alleges that during these interactions Zapata tried to poison Dr. Katz's opinion of him (DE 56 ¶ 40}, portraying Mazzetti as a drug user and manipulator:

[I]t was [DCP&P]'s mind to tell [Dr.] Katz, which gave him a negative opinion on me to begin with, and then his lies during his testimony that basically opened this all up.

(Ex. F 77:12-15). However, during his deposition, Mazzetti was at best equivocal about the grounds for his accusation that Zapata had undermined him with Dr. Katz:

Q. Okay. How do you know that Ms. Zapata . . . talked to Dr. Katz?
A. Dr. Katz told me
Q. What did he tell you?
A. Zapata told me that I was a drug addict, that I was gonna manipulate and lie and try to manipulate him or the way he feels about me.
Q. And did [Dr. Katz] tell you that [Zapata] saying this to him gave him an understanding, a false understanding of you?
A. No, he did not tell me that.
Q. Okay.
A. He didn't have ...

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