Gonzalez v. N.J. Dep't of Children & Families, Civ. No. 14-7932 (KM)(MAH)

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtKEVIN MCNULTY, U.S.D.J.
PartiesZENAIDA GONZALEZ, INDIVIDUALLY AND AS ADMINISTRATIX AD PROSEQUENDUM OF THE ESTATE OF ALISON CHAVEZ PLAINTIFF, v. NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, AND ALLISON BLAKE, ANDREA MOODY, LUISA CORDERO, OLGA HUYNH, BRIGID EGWU-ONYEMA, DAVID HENNINGSEN, IN THEIR PERSONAL CAPACITY; DEFENDANTS AND THIRD-PARTY PLAINTIFFS AND KEAN UNIVERSITY, CHILD ADVOCACY RESOURCE ASSOCIATION, AND VICTORIA CARDA AND MONICA AVILA IN THEIR PERSONAL CAPACITY DEFENDANTS, AND DR. ANITA KISHEN THIRD PARTY DEFENDANT
Docket NumberCiv. No. 14-7932 (KM)(MAH)
Decision Date24 June 2021

ZENAIDA GONZALEZ, INDIVIDUALLY AND AS ADMINISTRATIX AD
PROSEQUENDUM OF THE ESTATE OF ALISON CHAVEZ PLAINTIFF,
v.
NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES,
DIVISION OF CHILD PROTECTION AND PERMANENCY,
AND ALLISON BLAKE, ANDREA MOODY, LUISA CORDERO, OLGA HUYNH, BRIGID EGWU-ONYEMA,
DAVID HENNINGSEN, IN THEIR PERSONAL CAPACITY; DEFENDANTS AND THIRD-PARTY PLAINTIFFS
AND
KEAN UNIVERSITY, CHILD ADVOCACY RESOURCE ASSOCIATION,
AND VICTORIA CARDA AND MONICA AVILA IN THEIR PERSONAL CAPACITY DEFENDANTS,
AND
DR. ANITA KISHEN THIRD PARTY DEFENDANT

Civ. No. 14-7932 (KM)(MAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

June 24, 2021


OPINION

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KEVIN MCNULTY, U.S.D.J.:1

This opinion concerns several summary judgment motions filed in connection with a civil rights case. Alison Chavez, a sixteen-month-old child, died of an acute subarachnoid hemorrhage due to head trauma while in a foster home. Her death was described as a homicide by the Union County Medical Examiner in an autopsy report. No one has been criminally charged and it is not clear precisely what caused Alison's death, except that, as explained below, it is alleged in this action that she was being neglected or abused by her foster parents.

The plaintiff is Zenaida Gonzalez, appearing individually as Alison's mother and as Administratix Ad Prosequendum of Alison's estate. Plaintiff brings claims against a number of defendants, including Alison's foster

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parents. Primary responsibility, of course, lies with the foster parents, who were responsible for the safety and well-being of this pitiable child. And there is plenty of moral blame to go around. The main question here, however, is the extent to which public or quasi-public foster care authorities should be liable in damages. As to that issue, there are a number of countervailing immunity doctrines to ensure that the State is not impaired in its mission to aid children who lack caretakers.

The defendants relevant to this motion can be separated into two groups.

The first group, which I will call the "DCF defendants," consists of the New Jersey Department of Children and Families ("DCF"), Division of Child Protection and Permanency ("DCPP"), along with individual defendants Allison Blake ("Blake"), who served as Commissioner of DCF during the relevant time period, (Am. Compl. ¶ 4), and Andrea Moody, Luisa Cordero, Olga Huynh, Brigid Egwu-Onyema, and David Henningsen, who were Alison's DCPP caseworkers or caseworker supervisors, (id. ¶ 5.) Against the DCF defendants, Plaintiff brings claims based on negligence and respondeat superior, and claims under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act. Plaintiff asserts that the DCF Defendants should have investigated Alison's foster placement, realized it was unsafe, and removed her from the foster parents' custody. (See generally Am. Compl.) The DCF defendants respond by claiming that they are protected by qualified immunity and several other immunities identified in the New Jersey Tort Claims Act.

The second group, which I will call the "CARAS defendants," consists of Kean University ("Kean") and the Child Advocacy Resource Association ("CARAS"), which was an entity situated within Kean's Social Work Department, as well as two individuals. (Id. ¶¶ 6-7.) CARAS has since been disbanded, but during the relevant period it operated as a nonprofit that recruited and trained Spanish-speaking foster parents to work with DCPP. (Id. ¶ 6.) Defendant Victoria Cerda was the director of CARAS, and defendant

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Monica Avila was a Family Services Specialist for that entity. (Id. ¶ 8.)2 Plaintiff brings claims against the CARAS Defendants under the same statutes and common law theories as she does against the DCF defendants. Like the DCF defendants, the CARAS defendants claim they are entitled to a variety of immunities.

The DCF defendants have filed a third-party complaint against Dr. Anita Kishen, M.D,3 seeking contribution for any liability ultimately assigned to them as a result of Alison's death. (TPC, Count One.) Dr. Kishen is a medical doctor licensed to practice in New Jersey with offices located in Plainfield, New Jersey. (Id. ¶ 5.) The DCF defendants allege that Dr. Kishen, who examined Alison on two occasions and noticed bruising and abrasions on her body, should have contacted DCPP or the New Jersey State Central Registry Hotline to report that Alison was potentially being abused. (Id. ¶¶ 9-10, 13-16.) Dr. Kishen moves for summary judgment on the ground that the DCF defendants have not provided an expert who can establish that she breached a relevant standard of care in failing to recognize potential signs of abuse.

I GRANT the summary judgment motions of Dr. Kishen and the CARAS defendants. The summary judgment motion of the DCF defendants' motion is in large part GRANTED, but it is DENIED as to plaintiff's claims against defendants Luisa Cordero and Andrea Moody under Section 1983 and the New Jersey Civil Rights Act, which will go forward.

I. BACKGROUND

The following facts are not in dispute. Alison was born on July 15, 2011. (Am. Compl., Factual Allegations ¶ 2.) She is the youngest of five children born to the plaintiff. (Id.) Alison's father was removed from her home in August 2011

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following an incident in which he, while intoxicated, spit in Alison's mother's face and threw the family's belongings around the house. (Id. ¶ 3.) Alison's father was ultimately deported to Mexico after he sexually assaulted Alison's mother in September of 2011. (Id. ¶ 4.) In August 2012, Alison's mother suffered a nervous breakdown following a burglary of the family's apartment. (Id. ¶ 6.) She attempted to commit suicide and was hospitalized. (Id.) DCPP intervened with the intention of protecting her children.

A. DCPP Places the Children with the Foster Parents

On August 22, 2012, DCPP obtained temporary custody of Alison and the other children. (DCF SOMF ¶ 1.) On August 27, 2012, DCF Defendant Luisa Cordero, a DCPP caseworker, picked up the children from temporary resource placements and transported them to the foster home owned by Lazala-Krohn and Vega. (Id. ¶ 3.) The foster parent defendants had been licensed by DCF in September 2011, with CARAS as their sponsoring agency. (Id. ¶ 4.) The foster parent defendants' initial application for licensing requested foster placement of only one child between the ages of three and five; they left open, however, the possibility of up to four children. (Pl. DCFRSOMF ¶ 4; Pl. Supp. DCFSOMF ¶ 2.) DCF initially issued a four-child license, but increased the foster parents' capacity to six at CARAS defendant Cerda's request. (DCF SOMF ¶¶ 4-6.)

CARAS caseworker Avila performed CARAS's initial visit with the foster family and assisted them in completing their DCPP application. (Pl. Supp. CARASSOMF ¶ 1.) She stated in her deposition that she was the resource parent's contact person and that her main goal was to ensure that the foster parents would meet the requirements from DCF's office of licensing. (Id. ¶ 2.) She explained that the foster parents had two sets of children before Alison and her siblings arrived at the home. The first was a female child between 8 and 10 who was there for less than a month with no issues; the second was a group of three siblings who left the home following allegations that the foster parents had used inappropriate discipline techniques. (Id. ¶¶ 4-5.)

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DCF caseworkers and CARAS caseworkers visited the foster home numerous times between August and October 2012, and held internal meetings during which they discussed Alison's mother's status and interaction with the children. (See, e.g., DCF SOMF ¶¶ 9, 11-12.) Alison's mother met with Alison and her siblings seven times over the period of September 11, 2012 to October 26, 2012. (Id. ¶ 61.) CARAS representatives observed Alison in the foster home three times. (Id. ¶ 66.) CARAS defendant Avila visited the children in their home on a monthly basis. (Pl. Supp. CARASSOMF ¶ 13.) After one visit, she stated in an email that she believed the children were thriving and adjusting well to the new home, but noted that Alison lacked motor skills and would not make eye contact. (Id. ¶ 12.) She also noted that Alison struggled with motor skills, noticeable when she played with toys. (Id. at 14.)

The parties dispute whether DCF defendant Cordero and CARAS defendant Avila believed that the foster parents were up to the task of taking care of five children. (Id. ¶¶ 6, 9; DCF Supp. PLSOMF ¶¶ 9B; Pl. Supp. CARASSOMF ¶ 28; CARAS Supp. PLSOMF ¶ 28.) Ms. Cordero recalled in her deposition that when she first visited Alison and her siblings at the foster home, she reported to her supervisor that the foster parents appeared overwhelmed. (Pl. Supp. DCFSOMF ¶ 8.) By her second visit to the foster family, however, Ms. Cordero noted that Ms. Lazala-Krohn "was more into the swing of things," appeared "in control," and had developed a warm relationship with the children. (DCF SOMF ¶ 9; DCF Resp. to Pl. Supp. DCFSOMF ¶ 8.)

B. Alison Strikes Her Head and Ms. Lazala-Krohn Does Not Take Her to a Doctor

According to Ms. Lazala-Krohn's deposition testimony, on September 27, 2012 she was giving one of Alison's siblings a bath and had left the other four children downstairs. (Pl. DCFRSOMF ¶ 20.) She heard a "boom," and when she went downstairs, she discovered Alison on the floor. (Id.) The children

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explained that Alison's sister Sharon had moved a chair4 Alison was sitting in, causing Alison to fall out of the chair and strike her head on a bookcase. (Id.) Ms. Lazala-Krohn called foster parent Vega's sister, Maria, who "has some medical experience." (Id.) Maria was concerned that Alison had a concussion, so she directed Lazala-Krohn to keep Alison awake. (Id.) According to Ms. Lazala-Krohn, the called Ms. Cordero the next day, on Friday, September 28, 2012, and left her a voicemail about the injury. (DCF SOMF ¶ 20.)

On October 1, 2012, Alison's foster...

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