United States District Court, D. New Jersey
DENNIS MAZZETTI, individually and on behalf of D.M. as the "next friend" of D.M. a minor, Plaintiff,
THE NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY (“DCP&P”) (formerly Division of Youth and Family Services), et al., Defendants.
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.
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
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).
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).
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.
[fn. 2] When defendant finally submitted to hair follicle
drug testing months after it was sought, he tested positive
[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.)
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
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).
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.)
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).
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
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.]."
noted above, on July 1, 2014, DCP&P caseworker Kimberly
Roberts conducted an emergency removal of D.M. from
Linda's home. (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.).
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). 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?
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
noted above, the emergency removal was ratified by order of
Judge Mizdol two days later, on July 3, 2014.
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).
while, Mazzetti's first federal lawsuit remained pending.
Like Roberts, Zapata was not a defendant in that action. (Ex.
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).
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).
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.
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.
A. He didn't have ...