DOUGLAS RIZZO v. BERGEN COUNTY BOARD OF SOCIAL SERVICES

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APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02279-14T4

A-2714-14T4

DOUGLAS RIZZO, Guardian of

Fred Rizzo and Individually,

and ELIZABETH RIZZO,

Guardian Ad Litem of VANESSA

RIZZO and JEREMY RIZZO,

infants and Individually

Per Quod,

Plaintiffs-Appellants,

v.

BERGEN COUNTY BOARD OF SOCIAL

SERVICES, WILLIAM OSERIN,

BETTINA SAVAGE, ELI M.S.

FORMAN, OFFICER GERALD GANSEL,

FRANKLIN LAKES POLICE DEPARTMENT,

EMIL RIZZO, and JOHN DUNNIGAN,

Defendants-Respondents.

____________________________________

DOUGLAS RIZZO, Guardian of

Fred Rizzo and Individually,

and ELIZABETH RIZZO,

Guardian Ad Litem of VANESSA

RIZZO and JEREMY RIZZO,

infants and Individually

Per Quod,

Plaintiffs-Respondents,

v.

BERGEN COUNTY BOARD OF SOCIAL

SERVICES, WILLIAM OSERIN,

BETTINA SAVAGE, ELI M.S.

FORMAN, OFFICER GERALD GANSEL,

FRANKLIN LAKES POLICE DEPARTMENT,

Defendants-Respondents,

and

EMIL RIZZO and JOHN DUNNIGAN,

Defendants-Appellants.

_________________________________________

January 27, 2017

 

Argued October 27, 2016 - Decided

Before Judges Hoffman, O'Connor and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2926-12.

William L. Gold argued the cause for appellants (in A-2279-14) and respondents (in A-2714-14) Douglas and Elizabeth Rizzo (Bendit Weinstock, P.A., attorneys; Mr. Gold, on the brief).

Frank Catania, Jr., argued the cause for respondents Bergen County Board of Social Services, William Oserin and Bettina Savage (Catania & Ehrlich, P.C., attorneys; Mr. Catania and Christopher Clausi, on the brief).

Steven J. Tegrar argued the cause for respondents Eli M.S. Forman (Law Office of Joseph Carolan, attorneys; Mr. Tegrar, and George H. Sly, Jr., on the brief).

Mary C. McDonnell argued the cause for respondents Gerard Gansel and Franklin Lakes Police Department (Pfund McDonnell, P.C., attorneys; Ms. McDonnell, of counsel and on the brief; David T. Pfund, on the brief).

Thomas D. Flinn argued the cause for respondents (in A-2279-14) and appellants (in A-2714-14) Emil Rizzo and John Dunnigan (Garrity, Graham, Murphy, Garofalo & Flinn, P.C., attorneys; Mr. Flinn and Michelle M. Schott, on the brief).

PER CURIAM

In these back-to-back appeals, consolidated for the purpose of this opinion, plaintiffs appeal from a June 21, 2013 order granting the summary judgment dismissal of their complaint against defendants Franklin Lakes Police Department (Police Department) and police officer Gerard Gansel, as well as a June 21, 2013 order denying plaintiffs' motion for partial summary judgment against these two defendants.

Plaintiffs also appeal from a June 6, 2014 order granting the summary judgment dismissal of their complaint against defendants Bergen County Board of Social Services (Board), William Oserin, and Bettina Savage; a June 6, 2014 order denying plaintiffs' motion for partial summary judgment against the Board, Oserin, Savage, and Eli M.S. Forman; and a June 6, 2014 order granting the summary judgment dismissal of their complaint against defendant Forman.

In addition, plaintiffs appeal from a June 10, 2014 order granting the summary judgment dismissal of their complaint against defendants Emil Rizzo (Emil)1 and John Dunnigan (John).

Finally, Emil and John appeal from a December 19, 2014 order denying their application for costs and counsel fees.

For the reasons that follow, we affirm in part and reverse in part.

I

The facts relevant to the issues on appeal are as follows. Emil and Fred were brothers; both have died since this lawsuit commenced. For decades, the brothers co-owned and managed a successful tool shop called Madison Sprocket & Gear, Inc. (Madison). Fred, born in 1920, suffered a decline in mental acuity in his late eighties, becoming increasingly unable to participate in the business. In 2007, Fred executed a durable power of attorney making his only child, Doug, his attorney-in-fact.

Thereafter, Emil and Fred began to wind down and dissolve Madison. Meanwhile, Doug took over the management of Fred's financial affairs and attempted to use the power of attorney to participate in the dissolution of Madison on behalf of his father. Emil resisted Doug's efforts to involve himself in the affairs of the business. In September 2009, Fred executed a supplemental power of attorney clarifying Doug could act as his father's agent in all of his business affairs. Significantly, the previous June, Doug signed a document, entitled "Business Dissolution Agreement," which referenced the fact Fred was "not of sound mind."

Finding Doug's continued involvement in Madison's dissolution intrusive, in October 2009, Emil arranged to have Madison file a complaint against Doug which, among other things, sought to have Doug enjoined from interfering with the business and handling Fred's property. Madison also sought to have a guardian or guardian ad litem appointed for Fred. This lawsuit ultimately settled in December 2010. John, who is Emil's son-in-law, advanced approximately $100,000 to Emil to enable him to settle the matter.

In August 2009, John contacted the Board's Adult Protective Services unit and informed it Doug, his wife, and two children moved into Fred's home eight months before, and Doug was financially exploiting Fred. Consistent with the Adult Protective Services Act (Act), N.J.S.A. 52:27D-406 to -435, which creates a system for reporting neglect, abuse, and exploitation of a "vulnerable adult," a Board employee responded to Fred's home in September 2009.

The Act defines a "vulnerable adult" as a person "18 years of age or older who resides in a community setting and who, because of a physical or mental illness, disability or deficiency, lacks sufficient understanding or capacity to make, communicate, or carry out decisions concerning his well-being and is the subject of abuse, neglect or exploitation." N.J.S.A. 52:27D-407. The Act requires a county adult protective services provider to promptly investigate any report a vulnerable adult is being abused, neglected, or exploited. See N.J.S.A. 52:27D-410(b). If a provider has reasonable cause to believe the adult has been the subject of abuse, neglect, or exploitation, the provider determines the need for protective services. See N.J.S.A.52:27D-411(a).

After visiting Fred in his home in September 2009 and conducting an investigation, the Board employee concluded Fred had dementia that appeared beyond the "early stages." However, the employee did not find a basis to undertake any action and closed the file.

In September 2010, John again contacted the Board and reported a concern Doug was, among other things, exerting undue influence over and exploiting Fred financially. Specifically, John had learned a mortgage in the amount of $938,250 had been taken out against Fred's home in May 2010. John also discovered the property taxes on Fred's home had not been paid in over a year, even though Doug was in charge of managing his father's financial affairs.

In addition, John and Emil were concerned Doug was isolating Fred from extended family members. For example, in August 2009, John's wife (Emil's daughter and Fred's niece) sent Doug an email requesting Fred's telephone number, explaining Emil wanted to contact Fred. Doug replied, "No one is to disturb my father or upset him. [Emil] may speak to me if he wishes. I have Power of Attorney. Therefore, speaking to me is [as] if speaking with [Fred]."

As a result of John's second report to the Board, four visits were made by a Board's agent or employee to Fred's home. These visits were on September 27, 2010, December 8, 2010, February 25, 2011, and April 15, 2011. We review each visit, seriatim.

September 27, 2010

On September 27, 2010, defendant Oserin, an employee of the Board, responded to Fred's home. When no one answered the front door, Oserin went around to the back door. Fred saw Oserin through a window and let him into the house.

Fred was alone in the house and, although there was a telephone in the basement, he otherwise did not have access to a telephone. After interviewing Fred, Oserin discovered Fred did not know the month or day and, when asked the season, said "we are coming through winter." He could not name the president of the United States. Fred did correctly name the town in which he lived and recalled Doug and Doug's wife's name, as well as the name of Doug's son, but could not remember Doug's daughter's name. Asked about the mortgage, he initially claimed to be aware of a loan but then stated he could not recall this transaction.

After his visit with Fred, Oserin spoke with Doug about the fact Fred did not have access to a telephone and questioned Doug about the mortgage. The record does not reveal many details about or the action Oserin took as a result of that conversation. According to an excerpt from Doug's deposition, Oserin asked Doug for documentation pertaining to the mortgage but, on the advice of counsel, Doug declined to produce these documents. There is no evidence Doug voiced any objection to Oserin s presence in the house.

December 8, 2010

Oserin returned on December 8, 2010. He rang the front doorbell and Fred answered. Again, Fred was home alone. Oserin went through the house with Fred. Oserin telephoned Doug, who arrived at the home shortly thereafter. Oserin inquired about Fred's access to a telephone and Doug confirmed the only telephone was one in the basement. The record does not reveal whether the Board was concerned Fred was left home alone and without easy access to a telephone. There is no indication Doug or any other household member, including Fred, expressed disapproval Oserin had entered the house.

February 25, 2011

Oserin and defendant Savage, a college student working as an intern at the Board, returned to Fred's home on February 25, 2011. They knocked on the door "for a while" but no one answered; however, they heard voices inside. Concerned about Fred's well-being, Oserin opened the door, and both he and Savage yelled in a loud voice if anyone were home. Fred and his grandson (Doug's son) then appeared in the foyer.

The grandson called Doug and informed him Oserin and Savage were in the house. Doug came home, and he, Oserin, and Doug's attorney (who participated in the conversation by telephone) discussed Fred's well-being, his isolation, his lack of access to a telephone, and the mortgage. It is not clear from the record what the outcome of the meeting was. Doug did not request Oserin or Savage to leave or in any way indicate they were not permitted to see Fred in the home.

There were no other visits by the Board's employees or agents to Fred's home until April 15, 2011.

April 15, 2011

By April 15, 2011, the Board had decided to file a guardianship complaint and seek to have the Office of the Public Guardian appointed to manage Fred's financial affairs. In preparation for that proceeding, the Board retained psychologist Eli M.S. Forman, Ph.D., to complete an evaluation of Fred. On April 15, 2011, Forman drove to Fred's home; Forman did not call first because he had been led to believe Fred did not have access to a telephone.

According to Forman's deposition, when he arrived at the home he knocked on the front door several times but no one answered. He then went around to the back door and saw through a window a young woman, later identified as Fred's granddaughter (Valerie),2 in the kitchen. He knocked on the window and motioned to her to go around to the front door. She complied, but did not open the door. Forman advised Valerie through the door he was with the Board and asked if Fred were home. She stated her father told her she was not permitted to allow strangers in the house. He said, "no problem" and called Oserin, who advised he would call the police.

Defendant Gansel of the Police Department soon arrived. Forman testified he explained to Gansel he was there to perform an evaluation of an elderly person and showed Gansel his identification. According to Forman, Gansel knocked on the door and Valerie opened it. Gansel and Valerie spoke but Forman does not recall the substance of the conversation between them. Gansel then went inside the house. Because Valerie let Gansel inside, Forman concluded Gansel succeeded in obtaining Valerie's permission to let Forman enter the house as well.

According to Valerie's deposition testimony, she was in the house when she heard a sound as though someone were trying to open the front door, which was locked, but also a "pounding" sound. She went into the kitchen and heard knocking on a kitchen window, where Forman was motioning her to open the back door. She opened the back door and Forman explained he was a doctor from the Board and wanted to speak to her grandfather. Valerie advised Forman she would call her father and told him to go to the front door.

Valerie received instructions from her father to not let Forman in the house and to tell Forman to call him. She then opened the front door and told Forman she was instructed to not let him into the house. Forman nevertheless asked to see her grandfather. Valerie again stated she could not let Forman inside. She called her father and handed her phone to Forman. She heard Forman identify himself but does not recall anything else Forman said. When Forman's conversation with Doug ended, Forman made a phone call and then advised Valerie that if she did not let him in, he would call the police. Valerie notified her father, who stated he would come home.

A police officer arrived who, after speaking with Forman, approached Valerie and told her, politely, she was "going to have to let [Forman] in the house." She said "okay," stepped aside, and both Forman and the officer entered the house.

According to Gansel's deposition testimony, when he arrived at Fred's home he first spoke to Forman, who advised he worked for Adult Protective Services and was there to interview the homeowner. Forman told Gansel the homeowner was willing to speak to him; Gansel assumed Forman had already obtained permission from the homeowner to enter the house. Gansel testified there was nothing noteworthy about the fact the police were called to the house by the Board because "sometimes we'll stand by as a courtesy for these agencies."

Gansel and Forman then entered the house through the front door, which was open. A "young lady" was present, who did not voice any objection to Gansel and Forman entering the house. Gansel remained in the foyer while Forman spoke to Fred in another part of the house. Gansel and Forman were in the house for only ten to fifteen minutes when Doug came home and told Gansel and Forman to "get the fuck out of my house." Both Gansel and Forman immediately left the house.

The Board filed a verified complaint on May 16, 2011, seeking the appointment of a guardian for Fred. However, on November 7, 2011, the court entered an order appointing Doug as Fred's guardian.

In their complaint, plaintiffs contend Emil and John are liable to them for "improperly reporting" to the Board Doug had abused Fred. As for the remaining defendants, plaintiffs assert an action under 42 U.S.C.A. 1983.3 Plaintiffs allege defendants violated their federal constitutional rights under the Fourth Amendment4 by entering their and Fred's home on September 27, 2010, December 8, 2010, February 25, 2011, or April 15, 2011.

Plaintiffs also had alleged the remaining defendants committed acts of common law trespass. However, in their brief, plaintiffs concede they cannot establish they suffered any permanent injuries as a result of the acts of trespass. Recognizing the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, prohibits a claimant from recovering against a public entity or employee unless he or she has sustained a certain kind of permanent injury, see N.J.S.A. 59:9-2(d), plaintiffs abandoned their claim of trespass.

The trial court granted Emil and John's motion for summary judgment, dismissing plaintiffs' complaint against them. In its decision, the court referenced N.J.S.A. 52:27D-409(c), which provides in pertinent part

A person who reports information pursuant to this act, or provides information concerning the abuse of a vulnerable adult to the county adult protective services provider

. . . is immune from civil and criminal liability arising from the report, information, or testimony, unless the person acts in bad faith or with malicious purpose.

The trial court determined there was sufficient "suspect information" to have provided Emil and John reasonable cause to believe Doug might have been financially exploiting or otherwise neglecting Fred. Because there were no facts showing John and Emil acted in bad faith or with malice, the court found they were entitled to immunity under N.J.S.A. 52:27D-409(c).

The trial court also granted the summary judgment dismissal of plaintiffs' complaint against the Board, Oserin, Savage, and Forman, and denied plaintiffs' motion for partial summary judgment against these defendants. The court determined these four defendants enjoyed qualified immunity5 from liability under section 1983 because they had been entitled to enter Fred's home and, thus, did not violate plaintiffs' Fourth Amendment rights.6 Although it did not explicitly refer to the doctrine, the court also found Oserin and Savage immune from liability for entering the home on February 25, 2011 under the community caretaking doctrine.7

After prevailing on their motion for summary judgment, defendants Emil and John sought counsel fees, arguing the claims against them were frivolous. The trial court determined plaintiffs' complaint had not been filed in bad faith, or for the purpose of harassment, delay, or malicious injury.

Another court heard Officer Gansel and the Police Department's motion for summary judgment. That court concluded plaintiffs had no actionable claim against them under section 1983, granted defendants' summary judgment motion, and denied plaintiffs' motion for partial summary judgment. The court determined the "undisputed facts show" Gansel lawfully entered Fred's home because, when Gansel arrived, the door was open, Valerie advised the officer it was "okay" to enter, and Forman had informed Gansel the homeowner was willing to speak to Forman.

In addition, because Gansel did not conduct a search or seizure of the home, the court found he did not violate plaintiffs' Fourth Amendment rights and, further, enjoyed qualified immunity from plaintiffs' claims. The court also found, without elaboration, Gansel immune from liability under the community caretaking doctrine.

As for the Police Department, the court found plaintiffs failed to prove this defendant had a policy or custom that resulted in the violation of plaintiffs' constitutional rights, and granted the Police Department's motion for summary judgment.

II

On appeal, plaintiffs' principal arguments are the trial court failed to appreciate there are material questions of fact whether John and, derivatively, Emil, contacted the Board in bad faith or with a malicious purpose.

With respect to the remaining defendants, plaintiffs contend the trial court erred when it found these defendants enjoyed qualified immunity and the community caretaking doctrine applied. Before the trial court, these defendants argued, among other things, they had qualified immunity because either Fred or Valerie gave them permission to enter the house. Plaintiffs contend Fred did not have the capacity to give consent and Valerie s consent was not given voluntarily; thus, no defendant had the authority to go into Fred's home.

Plaintiffs argue the Police Department had a policy its officers were to "stand by" while Board agents or employees conducted interviews. Thus, plaintiffs contend, the trial court erred when it found the Police Department could not be held liable under section 1983.

Finally, although plaintiffs make it clear in their brief those counts of their complaint alleging trespass are "eliminated," elsewhere in their brief they state if Forman's "actions are considered as not acting under color of law, then he is liable to plaintiffs on common law trespass."

We do not address whether Forman trespassed under the common law. First, it is clear the trial court assumed Forman was acting under color of state law when it made its decision, and there is no contention this assumption was incorrect. Second, the trial court made no findings about whether Forman was acting under color of law; accordingly, we decline to do so in the first instance. See Duddy v. Gov't Emps. Ins. Co., 421 N.J. Super. 214, 221 (App. Div. 2011).

In their appeal, defendants Emil and John contend the court erred when it denied their application for costs and counsel fees. They argue there was no evidence John reported inaccurate information to the Board and thus plaintiffs' complaint against them was made in bad faith.

A

We "review[] an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). We "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid.; R. 4:46-2(c). A trial court's determination a party is entitled to summary judgment as a matter of law is "not entitled to any special deference," and is subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

When evaluating a motion record, we view the facts in a light most favorable to the non-moving party, "keeping in mind '[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion . . . would require submission of the issue to the trier of fact.'" Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346, 366 (App. Div. 2015). A motion for summary judgment will not be defeated by bare conclusions lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:46-2 (2016). "Competent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments." Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009).

B

We first address plaintiffs' claim the trial court erred when it granted Emil and John's motion for summary judgment. Assuming the Act even affords plaintiffs a cause of action for "improper reporting" against these defendants, there is no competent evidence Emil and John contacted the Board in bad faith or with malicious purpose. In the absence of such evidence, Emil and John were entitled to immunity from civil liability under N.J.S.A. 52:27D-409(c). This statute provides

A person who reports information pursuant to this act, or provides information concerning the abuse of a vulnerable adult to the county adult protective services provider, or testifies at a grand jury, judicial or administrative proceeding resulting from the report, is immune from civil and criminal liability arising from the report, information, or testimony, unless the person acts in bad faith or with malicious purpose.

[N.J.S.A. 52:27D-409(c)].

Plaintiffs contend John, with Emil's encouragement and approval, reported Doug to the Board in August 2009 in an effort to obviate the need to file a complaint against Doug. Plaintiffs' theory is Emil knew if the Office of the Public Guardian obtained guardianship over Fred, he would be spared the expense of litigating a complaint that sought to eliminate Doug's interference in Madison's affairs. Plaintiffs note Madison filed a complaint in October 2009, just one month after the Board determined there was no need to take any action on Fred's behalf.

Plaintiffs also argue John was motivated to report Doug to the Board to cover up Emil's and John's wife's theft of Madison's assets. John's wife worked for Madison at one time and had access to Madison's assets during her employment.

The difficulty with plaintiffs' arguments is Doug exhibited conduct suggesting he was exploiting Fred. First, in early 2009, Doug and his family moved into Fred's home, ostensibly helping themselves to Fred's assets. Second, Fred took out a mortgage of almost one million dollars against his home when he was suffering from dementia and Doug was entrusted with handling Fred's financial affairs. Third, compounding the concern Fred was being victimized, Doug insisted certain family members communicate with Fred only through him, suggesting Doug was attempting to isolate Fred. Finally, plaintiffs failed to show Emil or John's wife committed an act of theft against Madison.

While not conclusive, these actions raised a concern Fred, a vulnerable adult, was being financially exploited. Doug's decision to move his family into his father's house and arrange to have a mortgage taken out against Fred's home was eventually explained, but these actions understandably aroused suspicion Doug was taking advantage of his mentally impaired father.

N.J.S.A 52:27D-409(a)(2) provides any person who has reasonable cause to believe a vulnerable adult is being abused, neglected, or exploited may report his or her concerns to a county adult protective services provider. N.J.S.A 52:27D-409(c) states a person who makes a report to a provider is immune from civil and criminal liability arising from the report unless such person acts in bad faith or with malicious purpose.

Because the words "bad faith" and "malicious" are not defined in the Act, we give these words their "ordinary meaning and significance." See State v. Tate, 220 N.J. 393, 409 (2015) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012)). Ballentine's Law Dictionary defines "in bad faith" as "[w]ith actual intent to deceive or mislead." Ballentine's Law Dictionary 597 (3d ed. 1969). This dictionary defines "malicious" as "[a]ctuated by malice. Wicked and perverse." Id. at 768.

There is no evidence John acted with an actual intent to deceive or mislead, or with malice, when he reported his concerns to the Board. Emil did not make a report to the Board at all. Because John and Emil are immune from liability for the claims plaintiffs assert against them, we affirm the trial court's order granting these defendants' motion for summary judgment and dismissing plaintiffs' complaint against them.

C

We next address plaintiffs' claim under section 1983 the Board, Oserin, Savage, Forman, and Gansel entered their home in violation of the Fourth Amendment. For ease of reference, we refer to these five defendants as the "government defendants" for the balance of the opinion. Plaintiffs contend the trial court erred because there was evidence these defendants entered the home without consent or authorization from the court, and exigent circumstances did not exist.

Section 1983 of 42 U.S.C.A. does not create substantive rights, but does provide a remedy for the violation of rights created by federal law. Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S. Ct. 2427, 2432, 85 L. Ed. 2d 791, 800-01 (1985). As government officials, Oserin, Savage, Forman, and Gansel do not dispute they are subject to the Fourth Amendment and are prohibited from engaging in unreasonable searches of a home. However, the government defendants contend they either had consent to enter Fred's home or were justified in entering his house pursuant to the community caretaking doctrine, endowing them with qualified immunity.

In State v. Vargas, 213 N.J. 301 (2013), our Supreme Court reviewed the purpose behind the Fourth Amendment

"The right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures" is an essential guarantee of both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. Indeed, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972); accord State v. Frankel, 179 N.J. 586, 611, 847 A.2d 561 ("The sanctity of one's home is among our most cherished rights."), cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004), overruled in part by State v. Edmonds, 211 N.J. 117, 131-32, 47 A.3d 737 (2012); State v. Evers, 175 N.J. 355, 384, 815 A.2d 432 (2003) ("The privacy interests of the home are entitled to the highest degree of respect and protection in the framework of our constitutional system . . . ."). The warrant requirement protects an individual in his home from official intrusion whether the purpose of the search is to further a criminal investigation or the government's enforcement of an administrative regulation. Camara v. Mun. Court of San Francisco, 387 U.S. 523, 530, 87 S. Ct. 1727, 1732, 18 L. Ed. 2d 930, 936 (1967) ("It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.").

[Id. at 312-13 (emphasis added).]

In addition, "the Fourth Amendment has drawn a firm line at the entrance to the house . . . [, a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Kirk v. Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 2459, 153 L. Ed. 2d 599, 603 (2002) (quoting Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639, 653 (1980)). Therefore, unless there is consent, exigent circumstances, or permission from the court, a state actor cannot set foot in, let alone engage in a criminal or investigative search of, an individual's home.

We first address and easily dispose of the premise defendants had the authority to enter the house under the community caretaking doctrine. In Vargas, supra, 213 N.J. at 305, the Court framed the issue before it as "whether the community-caretaking doctrine authorizes the police to conduct a warrantless entry and search of a home to check on the welfare of a resident in the absence of the resident's consent or an objectively reasonable basis to believe that there is an emergency." The Court held "the community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency." Ibid.

Here, the government defendants do not assert there was any emergency when Gansel or the Board's representatives entered Fred's home during the subject visits. Therefore, the community caretaking doctrine is unavailing to any defendant as a defense.

We next address the contention the government defendants had consent to enter the house. Of course, depending upon which of the four visits is under review, different defendants are implicated. However, certain fundamental legal premises apply to all defendants on the issue of consent.

Oserin and Savage assert Fred consented to admitting them into the house when they visited, and Forman and Gansel claim Valerie consented to admitting Foreman and Gansel into the house at the fourth visit. Plaintiffs claim neither Fred nor Valerie provided a valid consent to admitting any of the defendants into their home. In our view, there is a question of fact whether Fred had the capacity to render consent and whether Valerie rendered her consent voluntarily.

As for Fred, it is undisputed he was suffering from dementia during the subject time period. Nevertheless, there is insufficient evidence to determine whether he possessed the requisite capacity to consent to the entry of the government defendants into his home.

In the matter In re M.R., 135 N.J. 155 (1994), our Court recognized "developmentally-disabled people, like other people, can differ widely in their ability to make decisions." Id. at 169 (citing In re Grady, 85 N.J. 235, 265 (1981)). Similarly, we noted "there can be gradations of incapacity, and a person who is incapable of making some life decisions may be capable of making other decisions." Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 615 n.12 (App. Div. 2014), certif. denied, 221 N.J. 492 (2015). In a case in which there was an issue whether an incapacitated person had the capacity to choose where he wanted to live, we noted, "[i]n determining whether the person in fact has the capacity to choose where he will live, the court must differentiate between 'glimmerings of rationality,' and the medically-documented ability to make a rational choice on the issue." In re Guardianship of Macak, 377 N.J. Super. 167, 177 (App. Div. 2005).

Here, whether Fred possessed or lacked the requisite capacity to consent remains a question of fact. We are aware Oserin, a social worker, testified at his deposition he believed Fred lacked the ability to render an informed consent about admitting a person into his home. However, Oserin subsequently testified he is not trained to judge "psychological state" and is "not a mental health worker."

The issue surrounding Valerie s alleged consent is whether it was rendered voluntarily. Plaintiffs claim fifteen-year-old Valerie was not capable of rendering a voluntary consent because of her age; defendants assert to the contrary. In Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862-63 (1973), the Court held whether a person voluntarily provided consent to a search is a question of fact to be determined by the totality of the circumstances. Those circumstances include, but are not limited to, the age, maturity, education, intelligence, and experience of the person who rendered consent. Id. at 226, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.

Further, consent is not voluntary if extracted by coercion. Id. at 248, 93 S. Ct. at 2059, 36 L. Ed. 2d at 875. "[I]f under all the circumstances it has appeared that the consent was not given voluntarily -- that it was coerced by threats or force, or granted only in submission to a claim of lawful authority -- then we have found the consent invalid and the search unreasonable." Id. at 233, 93 S. Ct. at 2051, 36 L. Ed. 2d at 866 (emphasis added). Here, Valerie was honoring her father's instructions to keep Forman from entering the house until Gansel told her she had to let Forman inside. At that point, her resolve seemingly crumbled, raising the question whether she capitulated in the face of lawful authority and, thus, did not in fact render a voluntary consent. Accordingly, whether Valerie rendered a voluntary consent is an unresolved question of fact.

Assuming Fred had the capacity to give a consent and Valerie's consent was voluntary, we note consent may be communicated expressly or impliedly. The factors which allow for an inference of implied consent may include a failure to object to a request, as well as other verbal and non-verbal conduct. See, e.g., United States v. Stabile, 633 F.3d 219, 231 (3d Cir.) (finding the "setting in which the consent was obtained [and] the parties' verbal and non-verbal actions" are relevant to issue of consent), cert. denied, 565 U.S. 942, 132 S. Ct. 399, 181 L. Ed. 2d 256 (2011). In some instances, a Power of Attorney may enable the attorney-in-fact to render consent on behalf of the principal. We make no finding whether the Power of Attorney Fred executed in 2007 provided Doug with the authority to decide on Fred s behalf who could enter his home.

The government defendants also claim they are protected by qualified immunity. Whether an official is covered by this immunity is a question of law to be decided by a court. Gormley v. Wood-El, 218 N.J. 72, 113 (2014). As previously stated, a government official will be shielded from liability for performing discretionary functions as long as his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Morillo v. Torres, 222 N.J. 104, 116 (2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). We employ the test set forth in Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 2155, 150 L. Ed. 2d 272, 281 (2001), which has two elements: (1) viewing the facts in the light most favorable to the plaintiffs, a constitutional right would have been violated, and (2) "whether the right was clearly established." Id. at 201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281.

For a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523, 531 (1987). Officials are expected to "apply general, well-developed legal principles," in "analogous factual situations." Gormley, supra, 218 N.J. at 114. "Although officials need not predic[t] the future course of constitutional law, they are required to relate established law to analogous factual settings." Ibid. (citation omitted).

The Board, Oserin, Savage, and Forman suggest they had an unequivocal right under the Act to enter Fred's home to assess his well-being. We disagree. While the Act authorizes county adult protective service providers to engage in a variety of very important and vital functions, their authority is not limitless. The Act does not sanction the violation of constitutional rights. Further, we cannot overlook the fact the rights of other members of the alleged vulnerable adult s household may also be implicated if a provider enters a home without lawful authority. However, a provider is not without a remedy in the event he or she is thwarted from conducting an evaluation. N.J.S.A. 52:27D-410(c) states, "[i]f the county adult protective services provider is prevented from conducting an evaluation of a report of abuse, neglect or exploitation, the county adult protective services provider may petition a court of competent jurisdiction for an order to conduct the evaluation."

The Board, Oserin, Savage, and Forman further argue the entry of summary judgment in their favor was justified because they have immunity under N.J.S.A. 52:27D-409(e), which provides

A county adult protective services provider and its employees are immune from criminal and civil liability when acting in the performance of their official duties, unless their conduct is outside the scope of their employment, or constitutes a crime, actual fraud, actual malice, or willful misconduct.

This statute offers protection against many causes of action, but a claim under section 1983 is not one of them. As the Court in Martinez v. Cal., 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980), observed

Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. 1983 or 1985 (3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law.

[Id. at 284 n.8, 100 S. Ct. at 558, 62 L. Ed. 2d at 488 (quoting Hampton v. Chicago, 484 F.2d 602, 607 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S. Ct. 1413, 39 L. Ed. 2d 471 (1974)).]

See also Good v. Dauphin County Social Services for Children & Youth, 891 F.2d 1087 (3d Cir. 1989) (holding a child protective services law granting immunity to those carrying out its provisions could not be asserted as a defense to a section 1983 claim alleging the defendants committed an unlawful search of home during a child abuse investigation).

Here, the law is clear state officials must honor the protections afforded individuals by the Fourth Amendment. Under the circumstances here, the State officials were not permitted to enter a home absent a warrant or court order, consent, or exigent circumstances. The government defendants here did not obtain permission from the court to enter the house and exigent circumstances did not exist at the times in question. Whether defendants had consent to enter Fred's home is a question of fact yet to be answered. Until then, the question whether the government defendants enjoy qualified immunity cannot be resolved. Therefore, the trial court's order granting the government defendants' motions for summary judgment is reversed.

D

Finally, plaintiffs challenge the trial court's determination there is no evidence to support their claim against the Police Department. Plaintiffs note Gansel admitted at his deposition officers would "stand by" when representatives of an agency visited a home. Plaintiffs argue this statement is proof the Police Department had a policy or custom in place that encouraged its officers to enter homes in violation of the Fourth Amendment.

"[A] municipality can be found liable under 1983 only where the municipality [] causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under 1983. 'It is only when the "execution of the government's policy or custom . . . inflicts the injury" that the municipality may be held liable under 1983.'" City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412, 424 (1989) (citation omitted) (quoting Springfield v. Kibbe, 480 U.S. 257, 267, 107 S. Ct. 1114, 1119, 94 L. Ed. 2d 293, 303 (1987) (O'Connor, J., dissenting)). For purposes of a section 1983 claim, municipalities and their police departments are treated as a single entity. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997).

While Gansel testified the Police Department would stand-by "for these agencies" if requested, there is no evidence the Police Department promoted a policy or tolerated a custom its officers violate an individual's constitutional rights. The mere fact the Police Department assisted "agencies" on occasion does not also mean it advocated its officers enter a home in violation of the constitution. Therefore, the trial court's order granting the Police Department's motion for summary judgment is affirmed.

E

Lastly, we address Emil and John s appeal from the trial court s order denying their application for costs and counsel fees. Emil and John sought counsel fees as a sanction under Rule1:4-8, and costs and counsel fees pursuant to the frivolous litigation statute, N.J.S.A.2A:15-59.1.

We review the decision to grant or deny fees pursuant to Rule1:4-8 and N.J.S.A.2A:15-59.1 under an abuse of discretion standard. Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.), certif. denied, 200 N.J.502 (2009); United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App. Div.), certif. denied, 200 N.J.367 (2009). We will disturb that determination only when there has been a clear abuse of discretion. SeePackard-Bamberger & Co. v. Collier, 167 N.J.427, 443-44 (2001). Such an "abuse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super.181, 193 (App. Div. 2005).

While Emil and John ultimately prevailed in plaintiffs claim against them, having reviewed the record, we discern no abuse of discretion in the court's decision to deny these defendants costs and counsel fees. Emil and John s argument lacks sufficient merit to warrant further discussion in a written opinion. R.2:11-3(e)(1)(E).

F

In summary, genuine issues of material facts preclude summary judgment in favor of defendants the Board, Oserin, Savage, Forman, and Gansel. SeeR.4:46-2(c). Accordingly, the orders granting summary judgment to these defendants are reversed. For the same reason, summary judgment in favor of plaintiffs and against these defendants is similarly precluded; therefore, the orders denying plaintiffs motion for partial summary judgment against these defendants are affirmed.

The orders granting summary judgment in favor of Emil, John, and the Police Department are affirmed, as is the order denying plaintiffs motion for partial summary judgment against the Police Department. The order denying John and Emil costs and counsel fees is affirmed.

Finally, to the extent any argument raised by a party has not been explicitly addressed in this opinion, it is because the argument was either disposed of in our disposition or the argument lacked sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.


1 Some of the parties and non-parties referenced in this matter share the same surname. To avoid confusion, we refer to these individuals by their forenames. We do not intend any disrespect by such informality.

2 The name is fictitious to protect her privacy.

3 42 U.S.C.A. 1983 provides in relevant part

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

4 U.S. Const. amend. IV.

5 The doctrine of qualified immunity shields "government officials performing discretionary functions generally . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Morillo v. Torres, 222 N.J. 104, 116 (2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)).

6 Although the claim has now been abandoned, the court also found the Board, Oserin, Savage, and Forman did not commit an act of common law trespass by entering Fred's property.

7 The community caretaking doctrine enables a police officer to enter a home without a warrant if he or she has "an objectively reasonable basis to believe that an emergency requires that he [or she] provide immediate assistance to protect or preserve life, or to prevent serious injury and there is a reasonable nexus between the emergency and the area or places to be searched." State v. Vargas, 213 N.J. 301, 323 (2013) (citations omitted) (quoting State v. Edmonds, 211 N.J. 117, 132 (2012)).