K.J. ex rel. Lowry v. Division of Youth and Fam.

• Decision Date: 06 April 2005
• Docket Number: Civil Action No. 04-3553(SSB).
• Citation: 363 F.Supp.2d 728
• Parties: K.J., T.J. and M.J., by their Guardian ad litem, Marcia Robinson LOWRY, Plaintiffs, v. DIVISION OF YOUTH AND FAMILY SERVICES, Department of Human Services, State of New Jersey, Patricia Belasco-Barr, Michele Guhl, Charles Venti, Doris Jones, Managerial Does 1-10, Supervisory Does 1-10, and Casework Does 1-10, Defendants.
• Court: U.S. District Court — District of New Jersey

363 F.Supp.2d 728

K.J., T.J. and M.J., by their Guardian ad litem, Marcia Robinson LOWRY, Plaintiffs, v. DIVISION OF YOUTH AND FAMILY SERVICES, Department of Human Services, State of New Jersey, Patricia Belasco-Barr, Michele Guhl, Charles Venti, Doris Jones, Managerial Does 1-10, Supervisory Does 1-10, and Casework Does 1-10, Defendants.

Civil Action No. 04-3553(SSB).

United States District Court, D. New Jersey.

April 6, 2005.

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Richard L. Bazelon, Esq., Steven K. Kudatsky, Esq., Bazelon, Less & Feldman, P.C., Marlton, NJ, for Plaintiffs.

Richard D. Emery, Esq., Eric Hecker, Esq., Emery Celli Brinckerhoff & Abady LLP, New York City, of Counsel to Plaintiffs.

Marcia Robinson Lowry, Esq., Children's Rights, Inc., New York City, Guardian ad litem for Plaintiffs.

James D. Harris, Esq., Karen L. Jordan, Esq., Office of the N.J. Attorney General, Trenton, NJ, for Defendants.

Kevin Ryan, Esq., Executive Director, Office of the Child Advocate, Trenton, NJ, Representing the Office of the Child Advocate.

OPINION ON MOTION TO DISMISS UNDER RULE 12(b)(6)

BROTMAN, District Judge.

On October 10, 2003 Plaintiffs' older brother, B.J., was observed eating out of a trash can in Collingswood, New Jersey.¹ (OCA Rpt. at 1.) Police responded to an early morning call about a "little kid" eating garbage and encountered an evidently malnourished nineteen year-old. B.J. weighed just forty-five pounds and stood only four feet tall. (Id.)

Investigations led police to the Jackson home, where B.J. lived with his adoptive parents as well as Plaintiffs K.J., T.J. and M.J. ("Plaintiffs" or the "Minor Children"). Plaintiffs appeared to be "dramatically underweight." (Id.) Consequently, the three Plaintiffs and their older brother B.J. were removed from the Jackson home and taken immediately to a local hospital. (Id.)

Plaintiffs commenced this lawsuit seven months later, naming the State of New Jersey, New Jersey Division of Youth and Family Services ("DYFS"), the New Jersey Department of Human Services ("DHS"), present and former directors of DYFS, and individual caseworkers and supervisors of DYFS.² This Opinion and accompanying order concern a Motion to Dismiss for failure to state a claim upon which relief can be granted on behalf of Defendants' State of New Jersey, DYFS, DHS, and the present and former directors of DYFS (collectively the "State Defendants") pursuant to Fed. R. Civ. Pro. 12(b)(6).³

I. FACTUAL BACKGROUND.

Defendants approved the Jacksons as foster parents in August of 1991 and placed B.J. with them in December 1991. (Compl. at ¶¶ 26, 27.) At the time B.J. was placed in the foster home he weighed 43.75 pounds and stood 48.25 inches tall. (Compl. at ¶ 27.) He was seven years old. (Id.) Comparatively, when B.J. was discovered eating garbage twelve years later, he weighed only forty-five pounds and was four feet tall. (Id.) During the twelve years after B.J. began living in the Jackson home, Defendants placed each of the Plaintiffs there and repeatedly visited the household.⁴

Plaintiffs allege that Defendants were obligated by statutes, regulations, and internal agency policies to visit and inspect the living conditions of the children. (OCA Rpt. at 22-23, 24, 26). These obligations may have even required Defendants to interview the children in the household at various times during the foster care placement and adoption processes. (Id.) These visits, along with other encounters, raise disconcerting questions about DYFS' involvement in child placement cases in New Jersey.

DYFS received a phone call in September 1992 reporting that a foster child in the Jackson home had complained he was hungry. (OCA Rpt. at 10.) The caller reported that the child had only gained one-half of one pound in weight and not grown in height since being placed there. (Id.) DYFS investigated the incident but did not reach any conclusions about neglect or abuse. (Id.) Notwithstanding the patent problems with B.J.'s placement, Plaintiffs were each placed as foster children in the Jackson home in 1995: T.J. was placed in March, M.J. was placed in August, and, K.J. was placed in November of 1995.

A. Plaintiffs' Placements in the Jackson Home.

T.J. was placed in the Jackson household on March 8, 1995 at seventeen months of age. At the time, he weighed twenty-eight pounds and was roughly two feet seven inches tall. (Compl. at ¶ 37; OCA Rpt. at 15.)

Two months after T.J. was placed, in May 1995, DYFS received a report from B.J.'s school expressing concern because he had failed to gain weight and because Mrs. Jackson had delayed his doctor's appointments. (OCA Rpt. at 10 and 15.) According to the OCA Report the caller reported that B.J. complained the "Jacksons did not give him enough to eat." (OCA Rpt. at 15.) The DYFS investigator noted that B.J.'s foster mother stated that B.J. had a stomach problem, requiring control of his diet. B.J. remained in the Jackson home, but did not return to school the following September. (OCA Rpt. at 11.)

Other reports on B.J. were received by DYFS. A caseworker reported that B.J. had begged her to take him out to eat. (OCA Rpt. at 11.) At another time, a therapist noted that B.J. disclosed that he had been climbing out of a second story window to eat from garbage cans. (Id.) Finally, between 1994 and 1996, caseworkers reported in writing on four separate occasions that B.J. appeared thin or underweight. (Id.)

Defendants placed M.J. in the Jackson home in August of 1995. (Compl. at ¶ 44.) He was seventeen months old, weighed seventeen pounds eight ounces, and was twenty-nine inches long. (Compl. at ¶ 44; OCA Rpt. at 18.)

T.J.'s medical records reveal his abnormal lack of growth and development. By August 25, 1995, just six months after T.J. was first placed in the Jackson home, he had lost four pounds of weight. (OCA Rpt. at 15.) Approximately six weeks later, DYFS reports reflected that he had lost another pound and weighed only twenty-three pounds. (Id.) Almost exactly one year later, on October 15, 1996, T.J.'s pre-adoption examination occurred. (Id.) He was three years of age and weighed twenty-one pounds.

K.J. had been in three foster homes before he joined T.J. and M.J. in the Jackson home on November 2, 1995. (OCA Rpt. at 14.) Prior to this placement, a supervisor had recommended that K.J. be placed in a home with fewer children where he could get more individual attention. (Id.) Instead, K.J. was placed in the Jackson home along with eight other children. (Id.)

When K.J. was placed in the Jackson home, he was seven years of age, weighed thirty-eight pounds and stood three feet nine inches tall. (Id.) Eight months after being placed in the Jackson home, on June 4, 1996, K.J. had a pre-adoptive medical examination. (Id.) K.J.'s weight was recorded as forty-one pounds and his height was forty-four inches. (Id.)

In spite of Plaintiffs' numerous growth and nutrition problems, B.J.'s adoption was finalized on July 8, 1996. (OCA. Rpt. at 12.) Thereafter, a monthly adoptive subsidy was paid to his adoptive parents on his behalf. (Id.) Upon B.J.'s adoption, a DYFS report noted that the foster parents had installed an alarm system which denied him access to the kitchen. (Compl. at ¶ 63.)

K.J. had another medical exam on September 10, 1996. (OCA Rpt. at 14.) In the three months since his June exam K.J. had lost three pounds. (Id.) The medical records list his weight as thirty-eight pounds and his height as forty-five inches. (Id.)

With DYFS' approval, both M.J.'s and K.J.'s adoption were finalized on March 14, 1997. (OCA Rpt. at 15.) Similarly, T.J.'s adoption was finalized on December 12, 1997. (OCA Rpt. at 17). At the time of T.J.'s adoption DYFS reports indicate that he generally enjoyed good health without mentioning T.J.'s low weight and height. (Id.)

B. Defendants' Documentation of Plaintiffs' Medical and Nutritional Problems.

The OCA Preliminary Report charges DYFS with a "systemic" failure to comply with its statutory and regulatory duties as well as its own policies. (OCA Rpt. at 3). DYFS has a minimum visitation requirement ("MVR") for each child placed outside the home which specifies the frequency for which caseworkers must visit the child. (OCA Rpt. at 30.) The MVR schedules normally set visits in a range from once per week to once every twelve weeks. (Id.) In January 2003, the policy for MVRs changed to requiring visits at least once per month. (Id.) Therefore, DYFS caseworkers had many opportunities to see the conditions of the household during the years they were placed there.

In addition, DYFS regulations between 1991 and 1999 required "updated medicals and in-person interviews during re-evaluations" of a household for additional surrogate placements. (OCA Rpt. at 27.) To that end, at least four DYFS employees evaluated the Plaintiffs' foster and adoptive home between 1991 and 2002. (Id.) DYFS supervisors reviewed and approved of at least two of these employees' work. (Id.)

Nonetheless, according to DYFS records, none of the employees responsible for the Jackson home obtained medical records or interviewed all members of the household during any reevaluation. (Id.) Specifically, in September 19, 1997 a DYFS employee conducted a reevaluation of the household. The employee reported that no members of the household had any medical problems requiring treatment. (Id.) The medical history gathered by the OCA contradicts this. In particular, the medical evaluations occurring before the children were adopted in 1997 document specific medical concerns for each child.

For example, a physician evaluating K.J. in September 1996 described him as "underdeveloped" and suggested possible diagnoses of fetal alcohol syndrome and failure-to-thrive syndrome. (OCA Rpt. at 14.) One month later, in October 1996, a pediatric neurodevelopmentalist observed that T.J. was "markedly underweight and...