SANDRA MEJIA v. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2850-08T32850-08T3

SANDRA MEJIA, individually and

as Administrator ad Prosequendum

and General Administratrix of THE

ESTATE OF ANGEL CARTEGENA,

Plaintiff-Appellant,

v.

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES, RASHEEDA JAMISON,

and LORI TOLIVER JOHNSON,

Defendants-Respondents.

________________________________________________________________

 

Submitted October 7, 2009 - Decided

Before Judges Axelrad, Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1583-06.

Garces & Grabler, attorney for appellant (Kevin S. Riechelson, on the brief).

Anne Milgram, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Gregory A. Spellmeyer, Deputy Attorney General, on the brief).

PER CURIAM

Following the tragic death of her infant son at the hands of her husband, plaintiff Sandra Mejia filed this lawsuit against New Jersey Division of Youth and Family Services (DYFS), a DYFS case manager, Rasheeda Jamison, and her supervisor, Lori Toliver Johnson. She now appeals from an order granting summary judgment, dismissing her complaint. We affirm.

Plaintiff's son, Angel Cartegena, Jr. (Angel), was born on September 5, 2004. When plaintiff returned to work at the end of October 2004, Angel was cared for by a babysitter while she worked. Her husband, Angel Cartegena, Sr. (Cartegena), picked up Angel from the babysitter and cared for him as well.

On November 2, 2004, Cartegena picked up Angel from the babysitter at approximately 5:00 p.m. One hour later, he called plaintiff at work and told her that he saw blood in the baby's stool and on his diaper when he was changing the diaper. Plaintiff noticed red marks on Angel's left leg that appeared to be markings from two fingers.

Plaintiff brought Angel to a pediatrician the following morning. After examining the bruise, the pediatrician suspected child abuse and referred the matter to DYFS. DYFS called plaintiff to obtain the last name of the babysitter, but plaintiff did not know her last name and could only provide some personal information about her. DYFS performed a background Child Abuse Registry Inquiry on the plaintiff and Cartegena. No records were found for plaintiff; there was a record of a "confirmed fondle/touch" to a ten-year-old relative involving one "Angel Cartegena," but the records were insufficient to confirm or rule out Cartegena as the person named in that record.

Although her records reported an earlier contact, Jamison did not meet with plaintiff until November 8, 2004. Angel and his maternal aunt were present for the interview, but Cartegena was absent. No interpreter was used to assist in the interview of plaintiff, who is Spanish-speaking. Plaintiff expressed no concerns about Cartegena and stated that she was "okay" with him caring for Angel. She had suspected that the bruise was caused by one of the babysitter's children but the babysitter denied seeing any of the children going near Angel. Plaintiff gave Jamison the babysitter's first name and address. She stated that the babysitter had cared for Angel for three weeks but that the family would make other arrangements. Jamison inspected the apartment, found it to be "very clean and organized," and noted that there was sufficient food, diapers, clothes and toys for Angel. She observed that Angel was clean, had rosy cheeks, good skin color and smelled of baby powder. Angel was asleep at the time. Jamison did not inspect the bruise on Angel's leg because she did not want to wake him when plaintiff said that the bruise had faded. Further investigation was hampered by the screening worker's failure to obtain and accurately record critical information, such as contact information for the referring pediatrician, on the intake form. During the period between this first referral and the second referral on November 13, 2004, DYFS failed to interview Cartegena or the babysitter and failed to interview or investigate the other persons who regularly frequented the home, such as Angel's maternal aunt.

On November 13, 2004, at approximately 12:15 p.m., Cartegena called 9-1-1 and reported that he had found Angel unresponsive on the couch. Police responded, revived Angel, and transported him to Robert Wood Johnson Medical Center in Hamilton. Angel was then transferred to the Pediatric Intensive Care Unit in New Brunswick. Upon admission, Angel had massive brain swelling and retinal hemorrhages. He was diagnosed with Shaken Baby Syndrome. It was determined that the abuse had occurred twenty-four to ninety-two hours earlier. Angel died on November 15, 2004.

Plaintiff, Angel's maternal aunt and her paramour all stated that Angel had seemed fine when they left for work the morning that he was hospitalized. Plaintiff did not voice any suspicions about Cartegena, who subsequently pled guilty to causing Angel's death.

On June 16, 2006, plaintiff filed a complaint against DYFS and "John Doe" DYFS employees, alleging wrongful death. On October 10, 2006, plaintiff filed an amended complaint against DYFS, case manager Jamison, supervisor Toliver Johnson, and a "John Doe" DYFS centralized screening worker. Count One of the amended complaint alleged wrongful death, N.J.S.A. 2A:31-1 to -6. Count Two alleged that defendants deprived Angel of due process of law by failing to comply with Child Protection Investigative guidelines set forth in N.J.A.C. 10:129-1 to -6.4.

Defendants filed a motion for summary judgment on the grounds that plaintiff's failure to file a tort claims notice barred recovery on the wrongful death claim, N.J.S.A. 59:8-9, and that Count Two failed to state a claim upon which relief can be granted. The trial court granted the motion and dismissed both counts. Plaintiff's appeal is limited to the dismissal of the civil rights claim. Because that claim is alleged only against the individual DYFS employees, DYFS is not a party to this appeal. No claims were asserted against Cartegena.

Plaintiff raises the following issues on appeal:

POINT I

PLAINTIFF'S COMPLAINT STATES A COGNIZABLE CAUSE OF ACTION FOR CIVIL RIGHTS VIOLATIONS BY THE DEFENDANTS AND SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.

POINT II

DEFENDANTS VIOLATED SEVERAL STATUTES THAT CONTAINED MANDATORY OBLIGATIONS AND DUTIES OWED TO THE PLAINTIFF'S DECEDENT, WHICH DUTIES WERE A PROTECTED RIGHT UNDER NEW JERSEY AND U.S. CONSTITUTIONAL LAW.

POINT III

THE TRIAL COURT FAILED TO ADDRESS THE "SHOCK THE CONSCIOUS" [SIC] STANDARD FOR DETERMINING WHETHER THERE WAS A CIVIL RIGHTS VIOLATION.

POINT IV

THE COURTS HAVE NOT PRECLUDED A CAUSE OF ACTION AGAINST THE STATE WHERE THE STATE HAS NOT TAKEN CUSTODY OF THE INDIVIDUAL HARMED.

We conclude that plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), except for the following comments.

The Fourteenth Amendment provides that a state shall not "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, 1. Congress created a federal cause of action for individuals deprived of rights, privileges or immunities secured by the Constitution and federal laws by someone acting under color of law. 42 U.S.C.A. 1983. The first step in evaluating a Section 1983 claim is to determine "'whether the plaintiff has alleged a deprivation of a constitutional right at all.'" K.J. v. Div. of Youth and Family Servs., 363 F. Supp. 2d 728, 738 (D.N.J. 2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841, 140 L. Ed 2d 1043, 118 S. Ct. 1708 (1998)). To have a property interest in a benefit, a person must have "a legitimate claim of entitlement to it." Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S. Ct. 2796, 2803, 162 L. Ed. 2d 658, 669 (2005). A plaintiff must show that an independent source, such as state law, established a benefit and that the interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause. Id. at 756-57, 125 S. Ct. at 2803-04, 162 L. Ed. 2d at 669. "New Jersey courts have been reluctant to infer a statutory private right of action where the Legislature has not expressly provided for such action." R.J. Gaydos Ins. Agency v. Nat'l Consumer Ins. Co., 168 N.J. 255, 271 (2001); Castro v. NYT Television, 370 N.J. Super. 282, 291 (App. Div. 2004).

Plaintiff does not cite any statutory authority for the creation of the property interest claimed. Instead, she relies upon the "Child Protection Investigation Guidelines" set forth in Chapter 129 of the New Jersey Administrative Code to establish the requisite property interest. Specifically, plaintiff alleges that violations of the following provisions support a cognizable property interest: N.J.A.C. 10:129-2.1; -2.3; -2.5; -2.6 and -2.7. Aside from the fact that these are regulations promulgated by the executive branch rather than expressions of legislative intent, this reliance was misplaced as none of these provisions were in effect in 2004 when the referrals to DYFS were made in this case. Even if a regulation, rather than a statute, could form the basis for the creation of a private cause of action, a review of Chapter 129 as it existed in 2004 shows no evidence of a legislative intent to create such a right.

Chapter 129 was re-adopted and extensively amended in 2005 with a new name, Child Protective Investigations. See 37 N.J.R. 2132(a) (June 20, 2005). Prior to the 2005 amendments, Chapter 129 was titled "Child Abuse and Neglect Cases" and was far more limited. Subchapter 2, the Child Protection Investigation Process that is the basis for plaintiff's allegation that defendants violated mandatory investigative procedures, did not exist in 2004. See 37 N.J.R. 2138-40 (June 20, 2005).

Rather than set forth explicit objectives as in the amended 10:129-1.1, the 2004 regulation only sets forth a "Policy Concerning the Referral and Investigation of Child Abuse and Neglect Cases" (the policy statement):

(a) State law requires all persons to [refer] suspected cases of child abuse or neglect to the Division of Youth and Family Services ("the Division"), and the Division has a legal obligation to refer to county prosecutors all cases that involve suspected criminal activity on the part of a child's parent, caretaker or any other person. While this duty may result in the referral of a substantial number of cases to prosecutors, it is anticipated that in most of the cases referred extensive police involvement will not be warranted, and indeed that in many cases no police involvement will be required. The objectives of this policy statement are:

 
1. To set forth guidelines by which Division caseworkers may easily identify cases that must be referred to prosecutors;

 
2. To establish procedures for such referrals to prosecutors;

 
3. To establish a system through which Division caseworkers may assist prosecutors in determining which cases should be investigated and in identifying cases in which criminal investigation or prosecution would be detrimental to the child's best interests; and

 
4. To establish a framework for liaison and improved communication and cooperation between the Division's district offices and the prosecutors' offices in order to further the mutual goals of protecting the child and proper law enforcement.

[See 37 N.J.R. 2136 (June 20, 2005).]

The thrust of this policy statement was to set forth guidelines and establish procedures for the referral of abuse cases to prosecutors and to create a framework for communication and cooperation between DYFS and prosecutors.

"To determine if a statute confers an implied private right of action, courts consider whether: (1) plaintiff is a member of the class for whose special benefit the statute was enacted; (2) there is any evidence that the Legislature intended to create a private right of action under the statute; and (3) it is consistent with the underlying purposes of the legislative scheme to infer the existence of such a remedy." Castro, supra, 370 N.J. Super. at 291 (quoting Gaydos, supra, 168 N.J. at 271). Plaintiff cites K.J., supra, 363 F. Supp. 2d 728 as an example of a case in which the court found a legislative intent to create a property interest despite the absence of an explicit legislative authorization for a private cause of action. That case concerned the claims of foster children against the State of New Jersey and various state agencies, which included a claim that their federal and state constitutional due process rights were violated due to abuse that occurred while they were in the foster care system. That case does not support the finding of such a property interest here because in K.J., the factors identified in Gaydos were clearly met. The plaintiffs were members of the class for whose benefit the statute was enacted and the recognition of a private cause of action was consistent with the underlying purpose of the legislative scheme. Evidence of legislative intent for a private cause of action could be inferred from the source statute, the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, in which the Legislature made certain pertinent findings and declarations about the rights of children and the obligation of the State. N.J.S.A. 9:6B-2(a) and (b). See Castro, supra, 370 N.J. Super. at 291.

None of the factors identified in Castro are satisfied here. The applicable regulation identifies no legislative intent to create any rights for children who have been abused and whose cases have been referred to DYFS for investigation. Since plaintiff has failed to show that state law established the benefit she seeks to vindicate here, we need not determine whether the interest asserted rises to the level of a legitimate claim of entitlement protected by the Due Process Clause. See Castle Rock, supra, 545 U.S. at 756-57, 125 S. Ct. at 2803-04, 162 L. Ed. 2d at 669.

 
Affirmed.

(continued)

(continued)

11

A-2850-08T3

RECORD IMPOUNDED

April 12, 2010