Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 1 of 20

BAZELON, LESS & FELDMAN, P.C. By: RICHARD BAZELON (RB8609)
STEVEN KUDATZKY (SK8888) 10000 Sagemore Drive, Suite 10202 Marlton, New Jersey 08053 856.988.1319 Attorneys for Plaintiffs

EMERY CELLI BRINCKERHOFF & ABADY LLP By: RICHARDD. ~MERY (Admitted Pro Hac Vice)
ERIC HECKER (Admitted Pro Hac Vice) 545 M<ldisonAvenue, Third Floor New York, New York 10022 212.763.5000 Attorneys for Plaintiffs

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.' UNITED STATES DlSTRICT COURT

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FOR THE DISTRICT OF NEW JERSEY

K.J., T.J. and M.J., by their

, '

Guardian Ad Litem,

MARCIA ROBINSON LOWRY,

Plaintiffs

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v.

DMSION OF YOUTH AND FAMILY SERVICES, DEPARTl:v1ENT OF HUMAN ; SERVICES, STATE OF NEW JE'.RSEY PATRICIA BELASCO-BARR, :MICHELE GUHL, C~ES VENTI, DORIS JONES, MANAGERIAL DOES 1-10, SUPERVISORY DOES 1-10, and CASEWORK DOES 1-10,

Defendants.

Civil Action No. 04--355~'(mR) .

ORDERAPPROVING SETTLEMENT AGREEMENT AND AUTHORIZING DISTRIBUTIONS

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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 2 of 20

THIS '11ATTER Imving been opened to the Court on October 21, 2005 ~pon the

application of the i1ucc Plaintiff children, by i11eir guardian ad litem, Marcia Robinson LOWlY,

Esquire,' for an order approving the terms of a settlement reached among the Plaintiffchildren

and all Defendants and the distributions to be madc pursuant thereto, aud the Court having

considered the submissions of the parties in support of and ill opposition to, if any, the gmnting

of the relief songht, and t11e Court having reviewed the proposed Settlement Agreement and

related Trusts, and hl'.\vin' g been advised by its appointed evxpe-rt(s-) co-nc-ern.ing .sa.me, .and ha.ving
:JJ conducted a hearing on the application, it is on tins day ofNovember, 20. 0, 5, for 'th~ reasons
stated in the Court's bench ruliogs ofNovember 16, 2005,

ORDERED; I.

, The guardian ad litem js hereby authorized to enter into, on behalfofthe

tllrl::e PlainlH1:' children, a settlement with the Defendant State ofNew Jersey, pn behalf-of all

Defendants, encompassing all claims asserted in tlns action ~ cOllsideration of a payroent in the

amount ofseven aud one halfmillion dollars ($7,500,000.00), base gross cost, as described more

fully in the parties' Settlement Agreement dated September 30, 2005 (hereinafter the "Settlement

Agreement"),

2. Defendant State ofNew Jersey shall fmrward all funds to Plaintiff's'

counsel

(other

than

funds

used . .

to

purchase

Wllluity

contracts

pursuant

to

Paragr,a.phs

B(d).,

8(e),

and 8(f) hereof) fur proper distributioll.
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.

3. The settlement proceeds shall be distributed equally. among the three

Plaintiff children, as described more fully in the Settlement Agreement.

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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 3 of 20
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4. The COllIt finds that each ofilie terms of11m Settlement Agreement is fair

and reasonable and is in the best interests of each ofthe Plaintiff children, and the Court hereby
approves tl,e Settlement Agreem",nt iil its entirety. The terms ofthe Settlement Agreement are

hereby incorporated by reference into tins Order and made a part hereof

5. The Court finds that the terms of each ofthe Trusts to be established under

and pursuant to the Settlement Agreement are fair, reasonable and in the best interests of each of

the Plaintiff children, and the Court hereby approves each ofthe Trusts in lp; entirety. The terms

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of each of the Trusts are bereby inoorporated by reference into this Order end made a part bereof.

6. Th", I.ndividual Trustee ofeach ofthe Trusts sllall recei,ve,, as com, pensation
for her services as such, the StUll offourthousand dollars ($4,000,00) per year from each oftha

Trusts. The Individual Trustee may petition the Court to modify this anll.uaI compensation as

future circumstances may warrant.

7. This .COllIt shall retain jurisdiotion over the administra~o~ ofthe. .

Settlement Agreement and the Trusts and over the enforcement of and compliance with the terms

ofthis Order.

8. The settlement proceeds shall be dislributed as follows:

(n) . Nine' hundred t1rirty-seven thollsand five hundred dollars ($937,500.00)

shall be paid to the Trust to be established for the benefit ofJ;>laintlffK.J.;

(b) Nine hundred thirty-seven thousand five hundred d·ollars ($937,500.00)

shall be paid to the Trust to be established for the benefit ofPlaintiffTJ.;

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(0) Nine hundred thirty-seven thousand five hundred dollars ($937;500,00)

shall be paid to the Trust to be established for 111e benefit ofPlaintiffMJ.; . '

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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Pag,e 4 of 20

(d) Nine hundred lhirty-seven thousand five hundred dollars ($931,500.00)

shall be paid to American General Life (rated A+ by A.M. Best and AA+ by Standard & Poor's)

fully guaranteed by AGC'bife Insuran<;e Co., for the purchase of a tax-free sll'uct'ured settlement

annuity which shall mal,e the following payments for the benefit ofPlaintiffK.J.: $ 4,414.98

per month for 30 years guaranteed and for his life thereafter, commencing on October 11,2014,

increasing at 3% compounded annually;

(e) Nine hundred thirty-sevell thousand five hundred dollars ($931,500.00)

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shall be paid to American General Life (rated A+ by A.M. Best and AA+ by Standard & Poor's)

ftllly guaranteed by AGC Life Insuranc(l Co., for the purcbase ofa tax-free structured settlement

aunuitywhich shall make the following payments for the benefit ofPJaJ:ntiffT.J.: $ 4,373.93 per

month for 30 years guaranteed and for his life thereafter, commencing 011 October 14, 2014,

increasing at 3% compounded aonually; -,
(f) Nine hundred thirly-seven thousand :five hundred dollars ($937,500.00)

shall be paid to Americilll General Life (rated A+ by A.M. Best and AA+ by Standard & Poor's)

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fully guaranteed by AGe Life Insurance Co., for the purchase ofa tax-free structqred settlement

annuity which shall make the following payments for the benefit of PlaintiffM.J.: $4,335.94 per
: ,
mOllth for 30 years guaranteed and for his lif1l thereafter, commencing on March-26, 2015,

increasing at 3% compounded annually; and

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(g) One million eight hUlldred seventy-flv,a thousand dollars ($1,875,000.00),

representing the Diffe, rential. AmoUllt pursuant to Paragraphs 7 and 9 oftI1e Set,tlement .
Agreement, shall be temporarily withlleld by Defendant State ofNew Jersey pending the further

Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 5 of 20

Order ofthis Court r",garding th", amount of attorney's fees and costs to be received by counsel

for Plaintiffs.

9. Until each ofthe Plaintiff children reache~ age thirty-five,'or until such

time as his Trust is amended by approval ofthe Court, the structured settlement payments

referred to in Paragraphs SCd), 8(e), and 8(t) hereof shall be made to that child's Tl1lst. Mter

eadl ofthe Plaintiff children reaches age thirly-five, such child may seek an Ordcr :!i'om the

Court

directing..,the

9,wner

of the

anlluity

contract

to

make

such

payments

directly

to
, .

the
,

child,

following a determination that the child possesses 111e appropriate rnl;lntaJ caplmity to. manage

such funds !U\d that he is free from undue influence; in the eYent that no such determination is

made, the struchlred settlementpaymel1ls shall continue to b<:l paid to Ille child's Tl1lst.

10. If any ofthe Plaintiff children dies before receiv!ng all guaranteed
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structured settlement payments, any remaining payments with respect to that chUd shall be paid

to the ben<:lficiary or beneficiaries designated tll writing by tile ohild in accordance with the
I

procedures

established

by

the

owner

of

the

annuity

contract,

provided

that

the.

child ,

may

make

. such designation only upon attaining the age ofmajority. Ifany ofthe Plmntiffchildren dies

"

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before the age ofmajority, odfhe makes no such valid beneficiary designation, then any such
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remaining guaranteed payments shall be made to his estate.

11. Counsel for Plaintiffs shall cause a copy ofthe fully-executed trust

agreement fOT each of the Plaintiff children to be :filed with the COUrt Within thirty (30) ,days of

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the date ofentry of this Order.

JOELB.ROS

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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 6 of 20

REITLEMENTAGREEMENT

This Settlement Agreement (the "Settlement Agreement") is made nnd entered into us of this 30lh day of September, 2005, by nnd belween the State ofNew Jersey (tIle "State") lind Marcia Robinson Lowry (the "GAL") in. her capacily as guardian ad litem to 10., T.!., nnd M.J. (collectively tile "Jacbon Children"). (The term "GAL" shalllnciude Mnroin Robinson Lowry, n::gardless of whetb~ she is aoting as guardian ad litem to !lIe Inckson Children or as n
truslee ofn trust established for the benefit of any oflhe laekson Children.) The Stllte lind the GAL shall be referred to hereinnfter oollectively as the "Parties."

WHEREAS, by order dated June 17, 2004, tIle GAL was duly appointed by the Superior Court of New Jersey as guardian ad litem to represent the Jucl(son Childrell; aud

WHERE~, the GAL commenced nlawsuit on behalf of the Jjlckson Children In tbe Superior Court of New Jersey, Camden COUllty (No. LO02895·04) agniIliit the Siate, the Now
Jersey DiVision of Youlh IlDd Family SerVices, the New lersey bepartment of Rumno Services,
and variolls Cllrrent und former .individl,,,l state employees (nthe Action"); and

WHEREAS, the State removed the Action to federal oOUIi. where it was assigucd ellSe number 04-CV-3553: and

WHERE~, the Parties mutuPlly desire to resolve the Action a,micably without
further litigation: nnd

WHEREAS, this Settlement Agreement is mude without IlllY I!dmission of liability by nny party;

NOW, THEREFORE, in consideration of these promises and the mutual covenouts hereinafter set forth, the Parties agree lIB follows:

1. SetllementAm(lUnt. 'rhe Parties agree that the seltlemt;lut amonnt

("Settlement Amount") shall be seven nnd one h~lf million dollars ($7,500,000.00), S\.rUclllred lIB

set forth in Paragraph 7 hereof.

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2. Edncnlion.

(A) Promptly upon the execution ofthis Settlement Agreement, the GAL sball

utlempl 10 obtain on behalf of each of the Jackson Children the follOWing educational services

from the children's local school districts: ten hours per month of cognitive remediation therapy,

one hour per week ofvocllIionnl therapy, one hour per week of occupatiooal tberapy, and four

hours per week of one-on-one academic tutoring.

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(B) . If, during the first Y"if!' after the execution ofthls Settlement Agreement, any of thelQc81school districts are ullwilling to provide the Jackson Children with the services eU1llIlerated in th~ previous subparagraph, the GAL shall pumue any reasonable legal option

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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 7 of 20
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nvailable ttl compel such local school di$trict(s) to provide suell sel'vic~s (whether under the l'nclivicluals with Disabilities Edl1ontion Act, tile New J~rsey Constitution. or any other federaI or state law or regulation), up to and including bringing the matter before the United SCates District Court of New Jersey as provided by statuto, but not illcluding lin appeal to the United Stlltes
Circuit Court or the United Stutes Supccmo Court.

(C) If, at any time following tho first year lifter the ex~cution of lhis Setllement

Agreement, any ofthe locn! school districts are unwilling to prDlTi<le the }a~kson Chil<lroon with

the services recommended by the GAL's education ""pert, the GAL shall use her best efforts to

negotiate the provision of suoh services with such 10cnI school district(s), but the GAL shall not

be obligated to Ulke any legal action Ilgilinst suoh local school district(s) if such local school

distrlct(s) refuse to provide such services.

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(D) To Ihe extent thnt !l1\y of the 10.-..1 school districts faihpprovid.. the J~ckson Childrell with the services recommended by the GAL's educntion expert- either
because. for the rust year, the District Court declines to order the local school district(s) to do so, or, for any SUbsequent year, the GAL is not successful 1n persuading the local sOhool distIict(s) to do So - then the State shall pay for (in addition 10 the amounts set forth in plIragrnplls land 7 hereof) ,nny such servi~es except as set forth below.

(i) In no event shall the. Slate pay more than a tolal of $185,000.00 fat the provision of educational services to tile JnckSDll Children;

(ii) l'n no event shali the Stale be ~equired to pay for any education services other than cognitive remediation therapy, vocationul ther~py, occupatilmal therapy, and private one·on-onH nca<l~mic tutoring; and

(iii) In no event shall the State be required to pay for any education services in excess of the difference between the services provided by the local school district and ten bours per month of cognitive remediation therapy, one hour per week of vocational therapy, and one hOur per week of occupllliollal therapy; provided. however, that 110 Buch IIrnillltiOn on hours shall apply to private Ol1~-on·one nca<lemic lutoring.

(E), With respect to tbe timing of the payments contemplated u\lder tbis paragraph, the Slate shall make no payment with regard to the services sought in the first year until after the GAL has been unsuccessful in the United States District COUrL ill obtaining all services soug!:1t mi set forth abtlve, Mter the first year, the Slate shnIl mOlko rhe payments for which they are responsible as set forth above at the time the local schonl district{s) decline to
provide such services.

(F) If, after the first year, the State believes rhnt the services recommended by

the GAL's Judge Joel

education Rosen (or

eltpert are unreasonable, it mny suchother judge as the DIstriot

seek binding arbitratIon Court may direct).

with•Magist.rate

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3. Ongoing InfonnatiPh lleglltding tile Stnills of the Children.

(A) Until such time as the Jackson Chlldren ure no longer in the custody of OYFS, the State shall provide Ule GAL, on a hi-monthly basis, with updated records regarding each of the Jackson Children, inc:luding updates of all case records and updates of all medic!!l, psychological, and educational re"ords. OYFS shall produce to the GAL, on or before the 14th day of every other month, all such records created, generated, or received by the State during the previous two months.

(B) Until such time as the Jackson Children are no longer in the cnstody of DYFS, DYFS shall promptly (nnd in all events within three days) notify the GAL of any significant events or developments concerning any of the Jaobon Children, including but not 1Im.ited to llIIy change in placement, services, permanency goal, or permanenoy plans; nny legal proceeding involving lillY of thcJnckson Children; any nllegation of abus'a otn6glect involving
any ofthe Jnckson Children or occurring at thl' placement where any of the Inckson Children are
placed; and any criticnllncideut (1.0., any incident requiring generation of It critical incident report as defined in the policy of the Division of Youth and Family Services that ell-iats on the date of the ell-ecution of this Settlement Agreement) involving any of the Jackson Children or occurring at the placement where any of the Jackson Children reside.

(C) Unlll such time as the Japkson Children are no longer in the oustody of

DYPS, DYFS shall m~et and confer wilh the GAL on 11 bi-monthly hasis (andlor wilhin t)lree

days of any significant evcnt or development) regarding the case plans, placements, progl".llllS.

nnd services being provided to Qaol! of the Jackson Children. During those meet Dnd confer

sessions, the Parties shall discuss and attempt in good faith to agree on appropriatF C3se plans,

placcments, programs, and services for ellch afthe Juakson Chlldreo. 'l'h" Parties ngrell that Judy

Moltzer shall serve as a nentfal facilitator during 5uch meet nnd confer ~ession~, and thilt tbe

Partios shall work with Ms. Moll:l:er in good faith to resolve ~ny disagreements tbat mllY arise

regarding appropriate cas~ plans, placements, progrmns, or services for the Jankson Children;

provided, however, Ihat in no ovent shall the State he under any obligation to adopt or

inCOrporate ,mY ofthe suggestions made by the GAL or by the Ollutral fllCilitator. Tn the event

Ibnt Ms. Meltzer is unable or nnwilling to serve lIS such a neutral facilitator, the Parties Shall

endeavor in good faith to agree on a djfferent ncutral facilitator with similar expert qualifications

to Ms, Meltzer, and if tbePllrties are unable to So agree, a neutral facilitator shall be: appointed by

Judge Rosen.

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(D) The Stnte agrees that it shall not oppose any application or motion made

by the GAL to intervene in any legal proceeding (including without llmitation;my pmc!;eding

before the Family Part of the ~uperior Court ofNew Jersey) relating to ~ny of the Jacksop

Children. By waiving its right to oppose apy application or ruotion to intarvene made by till:,

GAL, the State resllI"Ves and does not waive its right to oppose the sUhstance ofwhatever position

the GAL muyasserL ..

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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 9 of 20

4. Exlsting Medicaid Liens nnd Continuing Medicaid Benllfits.

(A) 'rbe State shall waive any and nil MBdicuid liens lind rights of reimbursement with respect to any Medicaid benefits provided to any of th.. Jackson Children n~ any time prior to the execution of this Settlement Agreement.

(B) From the date ofthis Settlement Agreement until ench of the Jaak:ion Chlldren renches age twenty-one, tbe State sball provide ench of tbe Jackson Chlldren with n Medicaid card entitling them to benefits under Medicaid "Family Care Plan A," regardless of whether the .Tnckson Children remain In foster Care or are adopted, and tbe State sball not impose a lien or seek reimbursement of any such benefits. Sbould any or all of the Jackson Children take up residenrein another state prior to age 2l,lhe Srate shall negotiate with officlnls In the new state to have the new state provide the Medicllid benefits set forth above. Should such new stl\w decline, the Stal!lshall uSo its best efforts to persuade appropriate medical providers in the new state to become New Jersey Medicaid providers such that such medicnl providers are eligible to be reimbul1led by th.. Stute for medicnl oare provided to the Jackson Children.

5. Confidcntildi~. 1'he GAL may fIlc a motion with the Court secking to seal portionS of this Settlement Agreement and tho exbibits appended hereto. The State may, but is not required to, join tbe GAL in such motion.

6. Agreement O;mtingentUpon Court Approval. The Parties agree Ibat

their willingness to cnter into this Settlement Agreement is conlingeIJt Ilpon the approval of·

Magistrate I udge Joal ROSen (before whom the Parties have consented to proceed pursuant to 28

U.S.C. § 636(c) andF.R.C.P.,73), following a hearing conducted in a tnannerak.in to a "friendly"

hearing conducted jllltsuant to NJ. Court Rule 4:44-3, of each and every provision of this

Settlement Agreement (except tbe issue of whether the 25% contingency fee agreed to by GAL

and her attorneys ~hould be modified). In the event that Magistrate Jl1dgtl Joel Rosen deolines to

approve any of thCl provisions .of Ibis Settlement Agreement (othor thnn the issue of whether the

25% contingency fee agreed to by GAL and ber attorneys should be modified) or decline~ 10

approve any of the tenns of tllo trusts Il8 set forth in :&hibit A, this entire Settlement Agreement

sblill be: null and void (uu:less tho Parties expressly agree otherwise in a writing). •

.

7. Funding of Trusts and Annuities. The Settlement Amouut set forth in Paragraph 1 hereof shall be structured as foUows:

(A) The "IniUa! Funding Amounr' shall consist of thll Settlement Amount less

tbe nttOI'nIlYS' fees and (losi;& that the GAL's lIttorneys seek to have approved pursuant to

Paragraph 9 hereof.

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(B) Immediately upon the approval of this Settlement Agreement under l'aragraph 611crcof, tbe State shall pay one six.th of the Initinl Funding Amount to each of three separate trusts, one for the benefit of eacn of the three Jackson Children (the: ~Trusts"), in the form attached hereto as Exhibit A.

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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 10 of 20
(C) fmmediately upon the approval of this Settl~ment Agreement under Pa{ftgl'ftph 6 hereof, the State shalI payor arrange to ha'Ve paid periodic income-taJt-free structured setUement payments for the benefit of enell of the Jackson Children as Bct forth h1 UJe schedule attached bereto lIS Exhibit B. These payments shill have II. cost equal to the remaining hulf of the Initial Fuuding Amount. The obligation to mnk!! the periodio income-lax-free structured seUlement payments described in Exhibit B may be assigned to nn assignment company or companies a:od funded by an annuity contract issued by n life insurance company or companies as more fully set forth in Ex.hibit B. All sums funding the periodic structured settlement,payments described in Exhibit B constituto damages On BeCOlmt ofpersonal injuries or sickness within the menning of Section 104(u)(2) of the Internal ReVenue Code of 1986, as runended, Until each of the ll\okson Children reaches age thirty-five, or until ~uch time as the trust attached hereto as Exhibit A. is otherwise nmended by npprovnl of the Court:, the slnlctured settlement payments set forth ill the schedule aUlICued hereto as Exhibit B shall he mude to th<lf.
cbijd'~ Trust. After each anile Inckson Cbildren renches age thirty-fi'Ve, such clrild may cecci""
the structured settlement payments directly by p"Qviding the owner of the annuity contract with iIII order from the court having jurisdiction of this settlement directing SUch paymen15 to be made to him following a determination that the child possesses the approprillte mental capacity to manage sucb funds 1Iud that he is free from undoe influence: in the event that no such determination is made, the structured settlement payments sball contimle to be paid to tbtl children's trusts. If auy ofthe Jackson Children dies before receiving all guaranteed sb:uotured settlement payments as sct forth in the schedule attached hereto as Exhibit B, any'remaining payments With respect to that child shall bl'l paid t~ the beneficiary or beneficiaries designated in writing bylbe child in accordance wIth the procedures established by the owner of tbe annuity contraot, provided that the child may mnke such designatlon only upon attaining the age of majority. If any of the Jackson Children dies before the age of majority, or ifhe makes no such 'Valid beneticinry designation, then nny such remaining gnarantced payments shall be made to his estate.
(D) . ,'!'be l>nrt:ies agree Ihnt the specific tenns of tbe Trusts and Ih" scbedule setting forth Ihe periodic im::ome-Imt-free struotnred settlement payments ore mllirmul to the Pllrties' willingness 10 euler into this Settlement Agreement.
(E) The "Diffl'rentilll Amount" shall be the difference betWeen the Settlement Amount and tbtl Initial FUnding Amount (which is equivalent to the attorneys' fees and costs that thl' GAL's I\UormlYs will seek to have approved pursuant to Paragraph 9 hereof). Upon the approval of this Settlement Agreement under Paragraph 6 hereof, the State, shall withbold the Differential Amount pending the resolution of any dispute regarding attorneys' fe~s under ' Paragraph 9 bereof. .
(F) The "Subsequent Funding Amount" shall be (j) the difference,lf any, between the Differential Amount and the fees and costs prescribed ill Judge Rosen's decision under Paragraph 9 hereof (if such decision is not appealed) or the fees and cCJ$t~prescribed by the Dnited Stales Court ofAppeals for the Third Circuit (if Judge Rosen's decision Is appealed); plus (ii) slmpl" interest on the amollllt calculated in Paragraph 7(F)(i) hereof, ~lculatcd at the tate of
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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 11 of 20
six: pel'CWlt p~r nnnum nnd nccruing from the date of the approval by the Court of this Setllement Agreement until any appeal is eXllansterl anrl payment is mnde.
(G) The Subsequent Fnnrling Amount shull be disposed of by pn.yiug one sixth of such sum I[} ench of the three Trusts, nod by using the remaining hIllf of the Subsequent Funding AmoUnllo purebllSl'l additioual annnity contI'l\cls for eaoh of the Jackson Children, subject to thl'l terms of l'arllgrnph 7(C) ofthls Settlement Agreomont (other than .Ex:hlblt B hereto), The GAL shull have discretion to determine: which annuity contracts should be purchased and which life compnny or companies tCl purchase them from; provided, however, that the GAL shall e)Cerdse her discretion in a manuer tbat mflXimizes the rate of retem for enah of the Jack.~on Children.
8. Assumption ofIneome Tax Liability. The Slate unoonditlonally guarantees th~t neiUler the potentilll exis!Dnco of the Subsequerit FundingAm~'1nt, the acl:ual ex:istence of the SnbsequentFunding Amount, or the ll1lInner .in which the Subscqnen~ Funding Amount is paid shall canse nay Clf the periodic s\nlctured settlemeut Pllyments contemplated .in tllis Settlement Agreement to be subject to any income taxntion. The State agrees that if any of the Jackson Children or their respective trusll; are ever required by IIDY tllldng authority (including without limitation the United States Intemnl Revenue Service) to pay ~ny income tax on auy ofthe periodic structured settlement payments contemplated in this Settlement" Agreement,.then the Stale shall make whole thdacksoo Children IlDdlor their respective trusts by reimbursing the Jackson Cbildrejl and/or their respective trusts for the full and entire amount of (i) llDy illJd all meome tax liability relating to the periodic: structured settlement payment.'! contemplated in this Settlement Agreement arising from the potentiill existenoe of the Subseqllent FUnding Amoun!, the actual existenoe of the SUbseqnent Funding Amonnt, or the manner in which the Subset)uent Funding Amount is paid; (Ii) any and alllax.1iabiUly xelllting to any payments made putsuant to this paragraph; and (ill) any and all costs incurred by the JaclQlon Childtel1 :u:tdltlr their respective trusts relating to any inquiry. aUdit, litigation, or other proceeding by nay Imting authority relating to the periodic struotared settlement payments contemplated in this Settlement Agreement, including wlthClut limitation attorneys' fees, . nccountants' fees, audit expenses, and Iitigmion I)Kpenses.
9. Attorneys' Fees.
(A) The Parties agree that subject to the exception set forth in :Paragraph 9(B) hereof, tile Settlement Amount set forth in Paragtaph 1 of this Settlement Agreement is inclusive of Ilttorn"'ys' fees and neither tbe GAL nor her attorneys will purslIo a separate attorneys' fees award from the State pursuant to 42 U.S.C. § 1988 or otherwis~.
(B) The State reSeJ;VeS the right to argue to Magistral.e ludge Joel Rosen (before whom the Parties have consented to proceed pursuillJt to 28 U.S.C. § 636(c) and RR.C.P.
m 73) at the settlement approvill heming described :Paragraph 6 of this Settlement Agreement thn!
the 25% contingency fee provided for in the xetainer agreement between the GAL and her attomeys should b" modified. The :Parties agree to submit such mtornBYs' fees dispute to, arld for
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Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 12 of20

resolution by. MagiSlrnte Jodge Joel Rosen in lieu ofsubmitting snch attorneys' fees dispute fo, and for rasolotion by, n United States District Judge. Each ofth~ Pnrties reserves Ibe dght to appeal directly to the United States Court of AppeUls for the third Circuit (but not to a Ullited States DistrlctJudge) any decision rendered by Magistrate Judge Joel Rosen with respeot to Ilttomeys' fees. If either PlIrIy appeals to the United States Court of Appeals for the Third Cirouit, and if the State does not prevail in such IlppeaJ, then the GAL shnll be entitled to seek an award of attorneys' fees and costs with respect to·sucb appeill. pursunnt to 42 U.S.C. § 1988.

(Cl During the settlement approval hearing described in Paragraph 6 hereof

(and in whatever pllpers the State may submit to Magistrate Judge Joel Rosen in advance

thereof), the State shall take II position regru:ding the files to which the State contend.!i thll GAL's

nttorneys are entitled to collect. The fees to which the State contends the GAL's attol'Ileys are

entitled to collect sball COJJstitute tbe "Undisputed Fees." The "Dis,pu!.Cd Fees" $hall be Ihe

diffen:nce between (i) the totnl fees and costs sought by the GAL's altorneys anil(ii) the

Undisputed Fees. .

. , ..

(0) Upon the issuance of a decision by Judge Magistrate Judge'Joel Rosen reg".trding the fees and costs to which the GAL's attornoys are entitled, the Stnte and the GAL's attorneys shnll, within the allowable pedod fa. filing a notice Of appeal ofsuch decision pursuant to the Federnl Rules of Civil Procedure, inform each olller whether they intend to ~pperu sllch decision to the United Stales Court of Appeals for the.Third Circuit.

(8) In the event that neither tbe State nor the GAL's attorneys choose to

appeal J~ldge Roseu's decision to the United Smtes Court of Appeals for the Third Circuit, then

(i) the GAL'1i attorneys shall be entitled to promptly callea! from thll State tho fces and costs'

prescribed in Judge Rosen's decision; ~nd (li) the differonce, if any, between the Dlffetentilll

Amount and tb(l files and costs prescribed in Judge Rosen's decision «(ogather with interest

thereon) sllnJl be deemed the Subg~quent Funding Amount pursuant to Paragraph 7(F) hereof and

shnll b" disposed of pursuant to Paragraph 7(G) hereOf.

.'

(F) In the event that either the Stale or the GAL's attorneys (or both) choose to appeal Judge Rosen's decision to the United Stales Court of Appeals for the. Third Circuit, then (i) the GAL's attorneys sball be entitled to promptly collect the Undisputed Fees from the . Differentinl Amount; and (ii) the Oisputed Fees shall remain withheld by the Sinte peuding fiual
resolution of the fee dispute by the United States Court of Appeals for the Third Circuit. Upon final Tflsolution ofthe fee dispute, then (i) tho GAL's attorneys shall be entitl~d to promptly collect fl:om tho State the sum of Ca) the fees and costs prescribed by the United States Court of
Appeals for tbe Third Circuit and (b) simple interest on sllch amount calculated at the mte of six
percent per annum and accruing from tile date Mngistmte Judge Joel Rosen rendei-s il decision r(lgarding the fees 'and costs to which the GAL's attorneys are entitled until. any appenl is ~xhnustcd and payment is made; and (ii) the difference between the Differential w;nount and the fees and casts prescribed by the United Sll\tes Court of Appeals for tIie Third Circuit (together with interest on that difference) shall be deemed the Subsequent Funding Amount pursuant to
Paragraph 7(F) hereof and shall be disposed ofpllr.luilllt to Paragraph 7(G) hereof.

-7-

,

Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 13 of 20

10. Adoptlon Snbsi<lics. The State agrees that each oftheJlldrson Childrc:u is a "hard-Io-plnce child" within the m!!ll\1ing of NJ.A.C. 10:121-2.1, and thnt lllJon the adoption of any of the IBGl<~on CIIildren, the State shill! provide the adoptive parenl(s} of sucb child with a monthly adoption subsidy paymeut pUrSUilIl! to NJ.A.C. 10:121-2.2.

11. Limited Releases. The Parties agree to execute, simultaneously with the execution of this Settlement Agre~mcnt, the limited relenses attached hereto as Exhibit C.

12. Entire Agreement. This Settlement Agreement constitutes and embodies
oe the entire agreement the Parties with respect to the settlement of tbis dispute. There nre no

other ngreements of noy nnture concerning the subject matter of the Acljon ilmong or between tbe

Parties hereto and there are no prior or contemporaneous understandings or representations relied

upon by nny Party in entering into this Settlement Agreement lhnt nre not 5luted herein.

Modification of this Settlement Agreement must be in 11 wrIting that is sigiled'by IIlI Parties; this

requliement may not be Wnlved or modified by ornl agreem~nt.

.

13. Authority. Tbis Sel:tlement Agreement hus been executed freely, Imowingly, nod vohmtarily by nil Parties without duress, coercion, or "ndue influe,nce, with a full und free understanding afits torms. Eaoh F:my has discussed this Settlement Agreement with her or its attorneys in detall, und eacb F:my nnden>tands its terms.

14. lliecntion•. This Settlement Agrelll11ent Dlay be executed in any number ofcounterparts, all of whiob together shall constitute one agreement '

15. Choice ofLaw. This Settlement Agreement shall be governed by nnd

construed in accordunce with the intemallawB of the State of New Jersey lIndlor the laws of \he

United States of America. .

•

16. Continuing Jurisdiction; E"cluslveFol'Uln. The Parties agree that the United States blstricc Court for the District of New Jersey (tho "DNJ") sball wtainjurisdiction oYer the Action and shllli continue to be empowered to compel compliance with the !crms and
provisions of this Settlement Agreement. The Parties ugtel'lthnt the DNr shall be the sole and
exclusive forow for uny proceeding to enforce this Settlement Agreement and nnlmowledge that
any they have previously consented (pursuant to 28 U.S.C. § 636(c) und F.R.C.P. 73) to the
disposition of any snch pI'oceeding by Magistrate Judge Joel Roscn. The prevailing pnrty in
proceeding to enforce this Settlement Agreement shall be entitled to an award ofrellSonable
IIltomeys' Iees,litigation expenses, und conrt costs against the non-prevailing party.

17. El(etntion :By Focsimile/Counterpurts_ Tbis Settlement Agreement may be executed in counterparts and/or by fllCsimile.

.,

Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005. Page 14 of 20
Executed as of ill" dllte first set fOl'lh above:
By: ~,=,#,~ in Robinson Lowry Guardinn Ad Lite!rl By:
lames M. Davy
Commissioner, Depart",""~f
PETER C. HARVBY ATIORNEY GENERAL OF NEW JERSEY Attomey for Defendants By:
Howard 1, Me 0 lch AssistBDt Attol:11cy G~nera1
,
-9-

Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 15 of 20
.. •

. J

'.;~'" v;,

EXIDBITA'

Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 16 of 20
EXHIBITB

Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005· Page 17 of 20
EXHIBITB
1.0 Puymcnt~ Funded Upon Execution of Release
1.1 To Keith Jackson "Payee":
Four Thousand Four Huucl:red F.ourteen Dollars and Ninety-Eight Cents ($4,414.98) monthly beginning on October 11, 2014, guaxanteod for 30 years (360 payments) with the last guaranteed payment being made on September 11, 2044 and then continuing for the
life oftWs Payee. ~ayments shull increase by 3% annually.
1.2 To Tyrone Jackson "Payee":
Four Thousand Three Hundred Seventy-Three Dollars and N'mety-'Three Cents
($4,373.93) monthly beginning on Ootobet: 14, 2014, guaranteed for 30 years (360 payments) with the last guaranteed payment being made on September 14, 2044 and then
continuing for the lite ofthis Payee. Payments shall increase by 3% annually.
1.3 To MichaelJackson "Payee": .
Four Thousand Three Huncl:red Tlrirty-Five Dollars and Ninety-Four Cents ($4,335.94) monthly beginning on March 26,2015, guaranteed fOf 30 years (360 payments) with the
last guaranteed payment being made on February 26, 2045 and then continuing for the life of tbls Payee. Payments shall increase by 3% annually.
2,0 Payces' Right tD Payments
Plaintiffs acltnowledge that the Periodic Payments cannot be aocelerated, deferred, increased or decreased by th", Plninti:Efs; nor shall the Plaintiffs or any Payee have the power to sell, mortgage, encumber, or anticipate the Periodio Paym",nts, or any part ihereof, by assignment or otherwise.
3.0 Con5cnt tIl QuuIified Assignment 3.1 Plaintiffs aclQ1~wledge and agree that the State of Wew Jersey ("State') may make a
"quEilified assignment", within the meilIling of Seotion 130(e) ofth", Internal Revenue Code
of 1986, as amended, of th", State's liability to make the Periodic Payments set fortI, in Section 1.1, 1.2, nnd 1.3 to American General Annuity Service Corporation ("the Assignee").
3.2 Any snoh assignment, if made, shall be accepted by the Plaintiffs without right ofr~iectiol1 and sball oompletely release and discharge the State {rom the Periodic'Payments obligation assigned to the Assignee. The Plaintiffs recognize that, in the event of such an IiSsigm:ueut,

Gase 1:U4-cv-U3553-SSB-JBR Document 47 Filed 11/30/2005 Page 18 of 20

the Assignee shall be ihe sale obligor wiih respect to ihe Periodic Paynumts obligation. and that all other releases wiih respect 10 the Periodic Payments obligation ihat peltain to the liability ofthe State thereupon become final, irrevocable and absolute.

4.0 Right to Purchase nn Annuity

The State, itself or through its Assignee, reserves the right to fund the liability to make the

Periodic Payrm.nts UJrough the purchase of an rumuity policy from American Geneml Lifo

Insurance Company. The State or the Assignee shall be the sale owner ofthe annuity policy

and shall have all lights of ownership. The State or the Assignee may have American

General Life Insurance COmpatly mail payments directly to the Payees. The Plaintiffs shall

be responsible for maintaining a current mailing oddress fur Payees with American General

Life Insurance Company.

.

5.0 Discharge o{Obligation

The obligation of ihe state andlor Assign~e to malca each Periodic Paym~nt shall be discharged upon the mailing of a valid check or wire tratlSfer/Electronic Funds Tronsfer in the amount of such payment to the designated address ofthe Payees nat11ed in Section 1.1, 1.2, aod 1.3 ofthis SettlcmcntAgreement.

• •

Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 19 of 20
EXHIBITC

Case 1:04-cv-03553-SSB-JBR Document 47 Filed 11/30/2005 Page 20 of 20

)JIMITED RELEASE

TO ALL TO WHOM THESE PRESENTS SHA.LL COME OR MAY CONCERN, KNOW THAT, contingent on court approv31 of the Settlement Agreement dated September 30, 2005, aDd in consideration for the payments and covenants set forth therein, Marcia. Robinson Lowry, guardian ad litem to Keith Jaokson, Tyrone Jackson, and Michael
Jackson (collectively the ".r3ckson Children"). hereby RELEASES AND DISCHARGES the State of New 1ersey, together with its insurers, agents. employees, heirs, executors, personal representatives and assigns from all claims, demands, damagc.<:, caDSes of nction. or suits which have been, could have been, or might have been made or prosecuted on account of nny conduct of any party occttu,'ing at I1IlY time with respect to the events. infonnation and disputes giving rise to the lawsuit entitled K.J. et aT. v. Divisioll o/Youth and Family Services et aL, NQ. 04-CV3553, including but Ilpllimited to any alnim for payment of counsel fc~s and costs.

ThiS LIMITED RELEASE may not be amended or modified orally.

Executed liS of this 30th dny of September, 200S

H1U'eL= ~&t= "-.m"'C:LI

•

Marcia Robinson Lowry

Guardian Ad Litem

Swom to before me this
.~.
Notnryl'ublic

 
 Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 1 of 33

FOR PUBLICATION
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

K.J., T.J. AND M.J., by their Guardian ad litem, MARCIA ROBINSON LOWRY,

Civil Action No. 04-3553 (SSB)

Plaintiffs, v.

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

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.

APPEARANCES:
Richard L. Bazelon, Esq. Steven K. Kudatsky, Esq. BAZELON, LESS & FELDMAN, P.C. Suite 10202 10000 Sagemore Drive Marlton, NJ 08055
Attorneys for Plaintiffs
Richard D. Emery, Esq. Eric Hecker, Esq. EMERY CELLI BRINCKERHOFF & ABADY LLP 545 Madison Avenue, Third Floor New York, NY 10022
Of Counsel to Plaintiffs
Marcia Robinson Lowry, Esq. CHILDREN’S RIGHTS, INC. 404 Park Avenue South, 11th Floor New York, NY 10016
Guardian ad litem for Plaintiffs

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 2 of 33
James D. Harris, Esq. Karen L. Jordan, Esq. OFFICE OF THE N.J. ATTORNEY GENERAL R.J. Hughes Justice Complex PO Box 112 Trenton, NJ 08625
Attorneys for Defendants
Kevin Ryan, Esq., Executive Director OFFICE OF THE CHILD ADVOCATE 135 W. Hanover Street, 3rd Floor Trenton, NJ 08625
Representing the Office of the Child Advocate
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,
1
The New Jersey Office of the Child Advocate (OCA) is an independent government agency created to investigate the State's responses to allegations of child abuse or neglect. After completing its review, the OCA makes recommendations concerning the procedures established by agencies involved in child protective or permanent placement services. In response to the Jackson case, the OCA produced a Preliminary Report that was attached to and incorporated in Plaintiffs' Complaint (the “OCA Rpt.”) To write its report, the OCA “analyzed every component of the child welfare system that interacted with the Jackson household between 1991 and October of 2003.” (Feb. 12, 2004 OCA Rpt. at 6.) The investigation focused on systemic issues as documented by the written records. (OCA Rpt. at 7.)
2

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 3 of 33
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
2
In addition, various managerial, supervisory, and caseworker “Does” were listed as unnamed defendants, while the present and former directors of DYFS were listed as defendants as well.
3
The Complaint incorporates the OCA Preliminary Report and the Court, thereby, accepts the allegations contained within the OCA Report as true for the purposes of determining this motion. See, e.g., Pension Guar. Corp. v. White Consol. Indus., Inc., 998 F. 2d 1192, 1196 (3d Cir. 1993), cert denied, 510 U.S. 1042 (1994).
4
DYFS records show that DYFS caseworkers visited the Jackson home at least thirty-eight times between 1999 and 2003 in connection with the proposed adoption of another ten-year-old boy. (OCA Rpt. at 3.)
3

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 4 of 33
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
4

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 5 of 33
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 thirtyeight 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
5

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 6 of 33
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.
6

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 7 of 33
(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-tothrive syndrome. (OCA Rpt. at 14.) One month later, in October 1996, a pediatric neurodevelopmentalist observed that T.J. was “markedly underweight and undersized and presented with failure-to-thrive syndrome.” (Id. at 16.) Likewise, in August 1996 a physician noted that M.J. presented with significant failure-to-thrive syndrome and possible fetal alcohol syndrome. (OCA Rpt. at 19.) In a similar manner, the recorded notes of B.J.'s caseworker described B.J. as “thin” or “underweight” on four occasions between December 22, 1994 and March 27, 1996. (Id.) Thus, one year before the DYFS employee asserted that no one in the home required medical treatment, and before any of the Plaintiffs were adopted, DYFS records document concerns for the boys' health.
Like DYFS, DHS reevaluated and approved the home for foster care in 1999 and 2002.
7

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 8 of 33
(Compl. at ¶ 107.) Caseworkers also visited the home and saw Plaintiffs a number of times after their adoption in 1997. (Compl. at ¶¶ 105-106.)
C. Plaintiffs’ Improvement upon Removal from the Surrogate Home. When removed from his adoptive home, Plaintiff T.J. was ten years old and weighed twenty-eight pounds. (Compl. at ¶ 4; OCA Rpt. at 15.) From the time T.J. was less than one and a half years old through his tenth birthday, he gained no weight and had grown only seven inches. (OCA Rpt. at 15.) Likewise, when Plaintiff M.J. was removed, he was nine years old and weighed twenty-two pounds. (Compl. at ¶ 4.) He had gained only four pounds, eight ounces in over seven years. K.J. also hardly developed while in the Jackson home. K.J. was fourteen years old, weighed forty pounds, and stood four feet tall when removed from his adoptive home. (Compl. at ¶ 4.) He gained two pounds and three inches in seven years while under the Jackson’s care and the supervision of DYFS and DHS. After their removal from the Jackson home in October 2003 K.J., T.J. and M.J. were placed on a normal diet and given vitamins. (OCA Rpt. at 12, 15, 18). Less than four months later each boy had gained a substantial amount of weight and grown considerably taller. K.J. gained thirty-three pounds and grew one and three quarter inches. (OCA Rpt. at 12). Similarly, T.J. grew three inches and gained fifteen pounds. (OCA Rpt. at 15). M.J. grew more than four inches and gained over twenty pounds. (OCA Rpt. at 18). In each case, doctors concluded that the child’s low weight and height were not caused by any medical conditions. (OCA Rpt. at 12, 15 and 18.) D. Procedural History. Plaintiffs filed a Complaint on May 26, 2004 in the Superior Court of New Jersey, Law
8

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 9 of 33
Division, Camden County. On July 23, 2004, a notice of removal was filed by Defendants and the action was removed to the United States District Court of the District of New Jersey.
Before removal on June 17, 2004, the New Jersey Superior Court appointed a guardian ad litem for the Minor Children. The Court appointed guardian was in response to a petition filed by the Child Advocate of the State of New Jersey for the OCA pursuant to N.J. STAT. ANN. § 52:17D-7. Defendants challenged the Superior Court’s appointment of a guardian ad litem, by filing a Motion to Vacate which was later withdrawn by Stipulation on September 24, 2004.
Fourteen Causes of Action5 are alleged in the Complaint and Defendants seek to dismiss all of the claims against them. In the first three Counts, Plaintiffs allege violations of their federal constitutional due process rights. Plaintiffs seek to hold the individual defendants liable under Section 1983 for violations of their federal due process rights. 42 U.S.C. § 1983 (1988) (“Section 1983”). Counts Four and Five allege violations of substantive due process under the New Jersey Constitution against all Defendants. Counts Six through Ten allege violations of Plaintiffs’ rights as established by the New Jersey Child Placement Bill of Rights Act, seeking damages against all Defendants. Count Eleven seeks damages for negligence under the New Jersey Torts Claim Act (“TCA”) against all Defendants. Counts Twelve and Thirteen seek damages for the violation of the New Jersey Law Against Discrimination (“LAD”) against all Defendants. N.J. STAT. ANN. §§ 10:5-1 through 10:5-49 (2000). The Plaintiffs voluntarily dismissed Count Fourteen.
5
For reasons that are unclear, Plaintiffs designated each count as a separate “cause of action” in the Complaint. For consistency, this court treats each numbered “Cause of Action” as a “Count” and will refer to them as such.
9

Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 10 of 33
II. STANDARD FOR MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” The rule seeks to screen out claims for which there is clearly no remedy, or where the plaintiff has no right to assert. Port Auth. v. Arcadian Corp., 189 F.3d 305, 311-12 (3d Cir. 1999).
Under Rule 12(b)(6), a complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In the alternative, when amendment can cure the defects in a complaint, the plaintiff should be given an opportunity to amend within a reasonable time period. Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). The issue, therefore, is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). See also Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
In considering whether a complaint should be dismissed for failure to state a claim upon which relief can be granted, the court must consider only those facts alleged in the complaint and accept all of the allegations as true, drawing all reasonable inferences in the plaintiff’s favor. ALA v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). Under some circumstances, an authentic document attached to a motion to dismiss may be considered by the court. Pension Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994). See also Garlanger v. Verbeke, 223 F. Supp. 2d 596, 601 (D.N.J. 2002). Legal conclusions offered in the guise of factual allegations, however, are given no presumption of truthfulness.
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See, e.g., Papasan v. Allain, 478 U.S. 265, 286 (1986). See also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). III. ANALYSIS OF STATE DEFENDANTS’ MOTION TO DISMISS.
The Motion to Dismiss seeks to dismiss all claims against the State Defendants, which encompasses DYFS, DHS, the State of New Jersey, and the present and former directors of DYFS who have been named.
A. Section 1983 Violations of Federal Constitutional Due Process. (Counts One through Three).
The State Defendants suggest that each of the Section 1983 Counts do not state a sufficient liberty interest which is redressable under federal due process. Defendants also argue that the named officials cannot be held liable under Section 1983 for their actions.6 The court disagrees.
In cases where the official conduct alleged is sufficiently egregious, the arbitrary actions of an official may support a claim under Section 1983 for a violation of due process. Sacramento v. Lewis, 523 U.S. 833, 846 (1998). See also Rivas v. Passaic, 365 F.3d 181, 195 (3d Cir. 2004). Before evaluating a Section 1983 claim, a court must identify “whether the plaintiff has alleged a deprivation of a constitutional right at all.” Lewis, 523 U.S. at 841. See also Coleman v. DYFS, 246 F. Supp. 2d 385, 388 (D.N.J. 2003).
Next, Plaintiffs were placed into surrogate care by the State which impinged upon their liberty interests. In general the government has no affirmative duty under the Constitution to take action to assure that each citizen is able to exercise, enjoy or realize the benefits of a
6The parties agree that these counts are alleged against the individual defendants only. (Tr. at 17.)
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Case 1:04-cv-03553-JS Document 32 Filed 04/06/2005 Page 12 of 33
particular right. DeShaney v. Winnebago Co. Dept. of Soc. Servs., 489 U.S. 189, 195 (1989).7 With respect to the right to liberty, exceptions to the DeShaney rule exist when the government has placed sufficient restraints on a person’s liberty to create a special relationship with the individual. At this point a substantive due process right arises out of the affirmative duties created by that special relationship.
The Third Circuit has held that a state’s intervention under the surrogate care system sufficiently imposes upon a child’s liberty interest to provide a substantive due process right. Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (holding “when the state places a child in stateregulated foster care, the state has entered into a special relationship with that child which imposes upon it certain affirmative duties.”) Accord Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en banc). Accordingly, the breach of a state’s affirmative duties can provide for liability under Section 1983. Nicini, 212 F.3d at 808 (“The failure to perform such duties can give rise, under sufficiently culpable circumstances, to liability under Section 1983.”) Cf. D.R. v. Middle Bucks Area Voc. Tech. School, 972 F.2d 1364, 1369 (3d Cir. 1992). For the special relationship exception to apply, a court must determine that the plaintiff has alleged a protected interest and a sufficient relationship with the government in order to state a cause of action. Nicini, 212 F.3d at 810.
Another exception to DeShaney arises under conditions of a state-created danger. The Third Circuit has recognized circumstances where this cause of action may lay. Kneipp v. Tedder, 95 F.3d 1199, 1205-09 (3d Cir. 1996). In Kneipp, police officers intervened to remove
7
Cf. G-69 v. Degnan, 745 F. Supp. 254 (D.N.J. 1990) (Brotman, J.) (“Since DeShaney, courts have struggled with whether state conduct short of actually taking a person into physical custody is sufficient to create a special relationship such that an affirmative duty is owed.”)
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plaintiff’s private source of protection, thereby placing her in danger. Id. The Third Circuit determined that their intervention supplied a sufficient encroachment upon plaintiff’s liberty interest to implicate a protected right. Id.8 But see D.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, (3d Cir. 1992) (finding that “the school defendants did not restrict D.R.’s freedom to the extent that she was prevented from meeting her basic needs.”) The court finds that the Plaintiffs have properly alleged their substantive due process claims under Section 1983 to permit Counts One and Two to remain in the action.
The Plaintiffs also allege that the State provided insufficient process before the deprivation of their liberty interest and insufficient remedies for the deprivation. To state a claim for a deprivation of liberty, the Supreme Court requires allegations of either predeprivation process or a postdeprivation remedy. Zinermon v. Burch, 494 U.S. 113 (1990).
Defendants further assert that the conduct alleged does not support a procedural due process right. Daniels v. Williams, 474 U.S. 327 (1986) (holding that procedural due process affords protection only against deliberate acts by the government). The Third Circuit has permitted a cause of action based upon conduct which alleges gross negligence. Ryan v. Burlington Co., 674 F. Supp. 464 (D.N.J. 1987), aff’d, 860 F.2d 1199 (3d Cir. 1988). Cf. McClary v. O’Hare, 786 F.2d 83 (2d Cir. 1986) (requiring an allegation of reckless conduct to find a cause stated). Plaintiffs have alleged the deprivation and gross negligence required to support the cause of action alleged in Count Three.
Finally, Plaintiffs alternatively requested remedies under Section 1983 based upon rights
8
See also Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990) (noting that DeShaney left unclear what level of state conduct would create a constitutional duty to protect); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990).
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arising under New Jersey legislation. State law does not give rise to a right enforceable under federal law. The Supreme Court established that Section 1983 provides a cause of action for violations of rights arising under federal legislative provisions. Maine v. Thiboutot, 448 U.S. 1, 4 (1980).9 See also Benn v. Universal Health Sys., 371 F.3d 165, 174 (3d Cir. 2004).
1. Fictitious Names. Defendants also argue that the claims alleged under Section 1983 should be dismissed because they are made against persons who have not yet been named. These claims shall remain a part of this action. Courts will allow claims based upon “fictitious” defendants because they may be found and named later through the discovery process. Alston v. Parker, 363 F.3d 229, 233 n. 6 (3d Cir. 2004) (citing Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998). See also Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 36 (E.D. Pa. 1990), aff’d, 946 F.2d 202 (3d Cir. 1991) (stating that fictitious defendants are permitted “as stand-ins for real parties until discovery permits the intended defendants to be installed.”) In such cases, courts allow claims for relief to survive a motion to dismiss. Plaintiffs have sufficiently alleged claims under Section 1983 as to be entitled to present evidence in support of Counts One through Three. The court now turns to the claims alleging violations of Plaintiffs’ rights under New Jersey law. Plaintiffs seek remedies in damages pursuant to the New Jersey legislative
9The Supreme Court has carved out two exceptions to Eleventh Amendment Immunity for when the State consents to being sued or when Congress abrogates immunity through legislation. Cochran v. Pinchak, No. 021047, 2005 U.S. App. LEXIS 4261, 8-9 (3d Cir. Mar. 15, 2005) (citing Seminole Tribe v. Fla., 517 U.S. 44, 54 (1996)).
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provisions which they suggest contain implied remedies. B. Implying Remedies under New Jersey Legislative Provisions. New Jersey utilizes the Restatement rule for determining when a legislative provision
should be read as containing an implied remedy. Bortz v. Rammel, 151 N.J. Super. 312, 321 (App. Div.), certif. denied, 75 N.J. 539 (1977). For those statutes which omit any reference to remedies, the Restatement allows for a civil remedy to be implied. RESTATEMENT (SECOND) OF TORTS § 874A (1979). The Restatement proposes:
[w]hen a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action . . . . RESTATEMENT (SECOND) OF TORTS § 874A (1979). The comments to the Restatement further explain that this rule applies to statutory as well as constitutional provisions.10 When inferring a private right of action, the central inquiry, therefore, seeks to determine whether the legislature intended to provide a civil remedy under the statute. See, e.g., Jalowiecki v. Leuc, 182 N.J. Super. 22, 30 (App. Div. 1981). In order to make this determination, New Jersey courts examine: (1) whether plaintiff is a member of the class for whose benefit the statute was enacted; (2) evidence that the legislature intended to create a private right of action under the statute; and (3) whether inferring a remedy would be consistent with the underlying purpose of the legislative scheme. Castro v. NYT Television, 370 N.J. Super. 282, 291 (App.
10
As used in this Section, the term “legislative provision” includes statutes, ordinances and legislative regulations of administrative agencies at various levels of government. It also includes constitutional provisions.
RESTATEMENT (SECOND) OF TORTS § 874A cmt. a (1979). 15

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Div. 2004) (citing R.J. Gaydos Ins. Agency v. Nat’l Consumer Ins. Co., 168 N.J. 255, 271 (2001)). These guidelines will be considered for implying remedies under the New Jersey legislative provisions as requested by Plaintiffs.
1. New Jersey Child Placement Bill of Rights Act (Count Six).
The parties disagree as to whether the Child Placement Bill of Rights Act (the “Act” or the “Child Placement Bill of Rights Act”) provides a private cause of action in damages. N.J. STAT. ANN. 9:6B-1 to 9:6B-6 (1991). Defendants contend that Castro effectively forecloses a remedy under the Act. Castro is distinguishable from the instant action and not dispositive of the question. As discussed, when implying a remedy pursuant to a legislative provision, the New Jersey courts seek to determine whether the legislature intended to provide a civil remedy under the statute. The inquiry here centers around whether that remedy would be consistent with the underlying purpose of the legislative scheme.
First, the overall scheme of the New Jersey child welfare statutes will be considered as a factor in the determination of the underlying purpose of the Child Placement Bill of Rights Act. The Act outlines the State’s responsibilities when undertaking to protect children by placing them outside of the home. N.J. STAT. ANN. 9:6B-1 to 9:6B-6. The main provisions of the New Jersey child welfare laws contain the specific requirements and regulations for the administrative oversight of the child placement process. However, the legislature created the Child Placement Bill of Rights Act as separate from the body of the child welfare laws, suggesting that it was meant to provide a separate remedy.
Title 30 and Title 9 contain the body of the New Jersey child welfare laws. Each title
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contains provisions for separate proceedings with respect to a child’s placement outside of the home. Chapter 4C of Title 30 encompasses the primary termination of parental rights provisions enacted as the Child Placement Review Act (N.J. STAT. ANN. §§ 30:4C-50 to 30:4C-65) and the Child Placement Act (N.J. STAT. ANN. §§ 30:4C-1 to 30:4C-83). Both Chapters under Title 30 prescribe specific procedures with respect to placing children outside the home.
Title 9, on the other hand, contains the provisions for temporary placement in cases of abuse or neglect. N.J. STAT. ANN. §§ 9:6-1 to 9:6-8.106. Under that title, the definition for abused or neglected child provides that either action or inaction by the parent may constitute grounds to find abuse or neglect. Id. A finding of abuse or neglect allows the state agency to file a complaint seeking to terminate parental rights under Title 30. N.J. STAT. ANN. § 9:2-18. Each of the New Jersey child welfare acts also requires a different burden of proof and provides for separate remedial schemes. N.J. STAT. ANN. § 9:6-8.46 (requiring a preponderance of the evidence for a finding of abuse or neglect). See also In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (requiring a higher standard of clear and convincing evidence for termination of parental rights under Title 30).
It appears that the New Jersey legislature designed the Child Placement Bill of Rights Act to protect the most fundamental rights of children placed outside the home. The Act’s section on legislative findings and declarations outlines three basic principles. N.J. STAT. ANN. § 9:6B-2. These principles guide the court’s interpretation of the Act. First, the legislature states that children placed outside of the home hold and enjoy rights independent of their parent or legal guardian. N.J. STAT. ANN. § 9:6B-2 (a). Second, the legislature recognizes an affirmative obligation of the State to recognize and protect the rights of the child placed into surrogate care.
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N.J. STAT. ANN. § 9:6B-2 (b). Third, the legislature included a requirement for a clear and consistent policy from the State for the promotion of permanent placement over long-term temporary care. N.J. STAT. ANN. § 9:6B-2 (c).
The Act directs further that surrogate placement must be carried out in a manner “consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child’s physical or mental development . . . .” N.J. STAT. ANN. § 9:6B-4. This section enumerates sixteen discrete guidelines for the State to follow in order to protect the rights of children who receive surrogate placement. These guidelines specify that when placing children outside of the home, the State must take all reasonable measures to protect their safety, right to contact with siblings, interest in receiving permanent placement over continuous foster care, and fundamental rights to adequate food, clothing, housing and medical care.
One of the fundamental principles of statutory construction, “ubi ius ibi remedium” proclaims that rights created by legislation arise from an intention to confer an adequate remedy to enforce those rights. RESTATEMENT (SECOND) OF TORTS § 874A cmt. c (1979). Furthermore, a statutory construction which renders any portion of a statute superfluous should be avoided. See, e.g., Abbots Dairies v. Armstrong, 14 N.J. 319, 327-28 (1954). Under certain circumstances, a violation of a statute may generate a remedy which is not explicitly stated in the act. Parks v. Pep Boys, 282 N.J. Super 1, 14 (App. Div. 1995). Consistent with the rules of statutory construction, the court finds that the intent of the legislature was to provide an effective remedy for the violation of the rights enumerated by the Child Placement Bill of Rights Act.
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The statutory construction found in Castro regarding the underlying legislative purpose of the Hospital Patients’ Bill of Rights Act found is distinguishable from the instant case. Castro v. NYT Television, 370 N.J. Super. 282 (App. Div. 2004). In Castro, the court was asked to imply a private right of action pursuant to the Hospital Patients’ Bill of Rights Act. N.J. STAT. ANN. § 26:2H-12.10. That Act enumerates seventeen rights of hospital patients while explicitly providing a single remedy for the violation of those rights: patients may complain to the Department of Health which closely regulates the hospital industry. Castro, 370 N.J. Super. at 290. Under that Act, “a patient who claims a hospital has violated one of the rights found in the Act ‘may file a written complaint against a hospital for failure to comply with the provisions of this act’” with the Department of Health. Castro, 370 N.J. Super. at 290 (quoting N.J. STAT. ANN. § 26:2H-12.10).
The legislative history of the Hospital Bill of Rights Act also shows that the legislature considered and removed language which might have provided for a private cause of action under it. Castro, 370 N.J. Super. at 292 (“This legislative history demonstrates that the Legislature made a deliberate decision to withhold authorization for patients to bring private actions for alleged violations of the Hospital Patients Bill of Rights Act.”) The court determined that the legislature’s inclusion of a sufficient and explicit remedy in the Hospital Patients’ Bill of Rights Act precluded finding that the statute contained a separate private right of action for violations of its provisions. Castro, 370 N.J. Super. at 289-91.
In contrast, no remedies or remedial scheme were provided within the Child Placement Bill of Rights Act. The Act enumerates the rights of children who are placed in surrogate care by the State, without articulating the remedy for a violation of those rights. N.J. STAT. ANN. 9:B6-4
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(stating that “a child placed outside his home shall have the following rights . . . .”) Under these circumstances, the court must determine how the legislature intended for the provisions of the Child Placement Bill of Rights Act to be enforced in order to uphold its underlying purpose in the legislative scheme. Having found that the underlying purpose of the statutory scheme suggests a remedy for the Child Placement Bill of Rights Act, the New Jersey case law interpreting the child welfare laws will also be considered.
Under New Jersey law, the termination of parental rights is a serious matter. When a minor child needs to be protected from serious physical or emotional harm, the State may step in as parens patriae where “[i]n some instances, this may require a partial or complete severance of the parent-child relationship.” In the Matter of the Adoption of a Child by P.S. and J.S., 315 N.J. Super. 91 (App. Div. 1998) (citation omitted).11 The decision must be based upon a determination of whether placement action would be in the child’s best interest. N.J. STAT. ANN. §§ 30:4C-15.1 to 30:4C-20. Termination of parental rights will not be permitted under circumstances where a child “might be better off” with prospective foster or adoptive parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). In those cases where parental rights are terminated, DYFS obtains full authority over a child. See, e.g., In re Guardianship of R.O.M.C., 243 N.J. Super. 631 (App. Div. 1990).
Because DYFS takes full authority over a minor child and assumes the role of parens patriae during the placement process, public policy requires that it have an enhanced duty with respect to the children it undertakes to protect. Accordingly, the legislature enacted a bill of
11
Accord Johnson v. State, 18 N.J. 422, 430 (1955) (“Parens patriae jurisdiction is an inherent right of sovereignty and imposes a duty on the sovereignty to protect such persons with disabilities, such as mental infirmity, who have no rightful protector.”)
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rights which articulates this affirmative duty of the State to enforce the rights of children who receive surrogate placement. See, e.g., N.J. STAT. ANN. § 9:6B-2 (declaring, in part, that the “State has an affirmative obligation to . . . enforce these rights in order to protect and promote the welfare of the child placed outside his home . . . .”) The Act recognizes a basic principle that it is the obligation of our society to protect children as members of a vulnerable class of persons.
In addition, the New Jersey courts have upheld the provisions protecting the rights of children under the Child Placement Bill of Rights Act. For example, paragraphs e and f address the specific need for siblings to maintain their sibling relationships when placed into a surrogate home. N.J. STAT. ANN. § 9:6B-4 (e) & (f). The Appellate Division of the New Jersey Superior court enforced these siblings rights provisions as found under the Act. In the Matter of C.R., 364 N.J. Super. 263, 278 (App. Div. 2003). In that case, the court found that the review by the Chancery Division of the specific proposed placement includes the right of the child to consideration of sibling relationships as a part of the totality of the circumstances for making the “best interests” determination. C.R., 364 N.J. Super. at 349.
Next, New Jersey courts have recognized that the underlying purposes of the Act include protection of the child’s interest in permanent placement. Guardianship of D.J.M., 325 N.J. Super. 150 (N.J. Ch. 1999) (citing N.J. DYFS v. K.M., 136 N.J. 546, 559 (1994); N.J. STAT. ANN. §§ 9:6B-1 to 9:6B-6). See also Guardianship of K.H.O., 308 N.J. Super. 432, 442 (App. Div. 1998) (stating that children in foster care are entitled to contact with siblings and foster parents under the Child Placement Bill of Rights Act). Cf. In re E.M.B., 348 N.J. Super. 31 (App. Div. 2002) (citing N.J. STAT. ANN. § 30:4C-50) (finding that the intent of the Child Placement Review Act is to provide periodic review of each child in placement in order to establish either
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permanent placement or return home). In D.J.M., the Chancery Division also discusses the purpose behind the later enactment of the New Jersey Adoption and Safe Families Act (the “A.S.F.A.”) in order to advance the legislature’s intent to place the safety of children first in guardianship proceedings. D.J.M., 325 N.J. at 155 (citing SEN. JUDICIARY COMM. STMT. TO SENATE BILL NO. 1705 (1999) (“[T]he safety of children shall be the paramount concern, expanding the current State policy which protects a child’s best interests.”) The A.S.F.A. further illustrates the Legislature’s continuing commitment to making a child’s safety the utmost priority when the State intervenes to place children outside of the home.
Finally, the New Jersey Supreme Court has recognized the special status of children, stating that they are members of “a vulnerable class by virtue of their age and immaturity.” Frugis v. Bracigliano, 177 N.J. 250, 282 (2003). In Frugis, the Board of Education ignored indications that a school official was abusing students and failed to institute policies that may have protected the students. As a result, the state Supreme Court concluded that “[a]lthough the overarching mission of a board of education is to educate, its first imperative must be to do no harm to the children in its care.” Id. at 268. In the instant action, the overarching mission of the State government is to protect children from harm. The State does so by intervening on their behalf in situations of abuse and neglect, as prescribed under its laws.
Any construction of the Child Placement Bill of Rights Act which does not provide a private right of action would work against the principals of statutory construction and would work against the basic policy decisions underlying the enactment of the legislation. The court can imagine no permissible reading of the Act which would not provide a private remedy for the violation of certain rights of a child being placed outside of the home to adequate food, shelter
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and medical care, and the right to a reasonably safe environment. The foster care plan that satisfies all of the specific provisions found under New Jersey
law will be as individual as each child. Without specific guidance, there is no adequate measure of what the individual needs of a child in surrogate care should be. The Child Placement Bill of Rights Act does not seek to provide for administration over the child placement process because those particulars are left to the devices of the child placement system. See, e.g., N.J. STAT. ANN. §§ 30:4C-50 to 30:4C-65; N.J. STAT. ANN. §§ 30:4C-1 to 30:4C-83; N.J. STAT. ANN. §§ 9:6-1 to 9:6-8.106. Instead, the Child Placement Bill of Rights Act seeks to remedy the harm which arises when the State agencies and the placement system fail to carry out the State’s affirmative obligation to protect the fundamental rights of the children entrusted to its care.
Under the circumstances found here, it is the duty of the court to provide those remedies which are necessary to make effective the New Jersey legislature’s purpose for enacting the Child Placement Bill of Rights Act. An administrative review process does not provide the type of review desirable for a resolution of the issue as to whether a child’s fundamental rights have been protected by the State’s placement process. Though a court should refrain from legislating or administrating from the bench, the basic adequacy of the oversight provided by the State and its agencies may be addressed. Private enforcement provides the necessary power behind the legislation where the possibility of civil damages serves as the most effective enforcement mechanism for the Act’s goal to insure that the agencies responsible for the child’s welfare uphold the rights of the child. It is proper and necessary, therefore, that the Child Placement Bill of Rights Act provide a private right of action.
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2. New Jersey Constitution. (Counts Four and Five).
The New Jersey Constitution contains neither the term “due process” nor the phrase “equal protection.” However, when a statute is challenged under the State Constitution, the New Jersey Supreme Court has construed it expansively. Caviglia v. Royal Tours of Am.,178 N.J. 460, 472 (2004). For thirty years, Article I, paragraph 1 of the State Constitution has been interpreted as guaranteeing the fundamental rights of life, liberty, and property. Id. See also Montville v. Block 69, 74 N.J. 1, 21 (1977) (“In fact, we have at times interpreted our State Constitution to provide greater protections than those existing under analogous Federal provisions.”) For due process challenges to statutory provisions, the New Jersey Supreme Court employs the analysis utilized by the federal courts. State Farm Mut. Auto. Ins. v. State, 124 N.J. 32, 46-47 (1991) (stating with respect to a challenge to the facial constitutionality of the New Jersey Fair Automobile Insurance Reform Act that “[t]his court has chosen to apply the same standards developed by the United States Supreme Court under the federal Constitution for resolving due process claims under the New Jersey Constitution.”) See also Roman Check Cashing, Inc. v. N.J. Dep’t of Banking and Ins., 169 N.J. 105, 110 (2001) (applying the due process analysis utilized by federal courts in an action challenging a distance requirement contained within the New Jersey Check Cashers Regulatory Act).
The question here is whether a private right of action for damages exists under the State Constitution for a violation of an individual’s due process rights by the State government. Therefore, the court must determine whether inferring a remedy for a violation of individual rights under State due process would be consistent with the underlying purpose of the
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constitutional and statutory scheme. Few cases directly address implying a private right of action for a due process violation of
an individual’s rights under the New Jersey Constitution. In one instance, the New Jersey court held that there is no special relationship exception available under the New Jersey Tort Claims Act. Macaluso v. Knowles, 341 N.J. Super. 112 (App. Div. 2001) (declining to extend a right of action for a violation of a child’s rights by the State in the school environment).12 In another case, the New Jersey court declined to extend liability for damages based upon a state-created danger theory. Gonzales v. Camden, 357 N.J. Super. 339 (App. Div. 2003). In this case, two shop owners were shot when closing their store late at night after city inspectors delayed them with an inspection. The plaintiffs contended that the city inspectors, some of whom were armed, should have waited and escorted them after closing of the store. Id. The court declined to imply a due process right of action because no affirmative duty existed for the city officials to protect the shop owners.
Those cases permitting a private right of action for a violation of an individual’s rights under the New Jersey Constitution appear to be limited to employment discrimination under equal protection. See, e.g., Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55 (1978). Cf. Cooper v. Nutley Sun Printing Co., 36 N.J. 189 (1961) (providing an equitable remedy). In these cases, the New Jersey courts permit an implied private right of action for violations of individual rights under State due process. It is not clear whether the New Jersey Supreme Court would also infer a private cause of action against the State government.
12
Cf. State in the Interest of R.G.W., 145 N.J. Super. 167 (Juv. Ct. Passaic Co. 1976) (finding a right to treatment where the State acknowledged an affirmative obligation by statute) (citing the Mental Patients’ Bill of Rights, N.J. STAT. ANN. 30:4-24.2); In re D.D., 118 N.J. Super. 1 (App. Div. 1971).
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A bill was sponsored in 2002 to close the gaps in state law by providing remedies for
violations of an individual’s state and federal constitutional rights. A-2073/S-1558 (N.J. 2002).
Modeled after Section 1983, the final Act was passed in September of 2004. New Jersey Civil
Rights Act, N.J. STAT. ANN. §§ 10:6-1 and 10:6-2 (2004).
However, this civil rights act does not include a right of action for private parties.
Instead, it creates a civil claim for deprivations of an individual’s “substantive rights, privileges
or immunities” secured by the State Constitution or laws, enforceable by the State Attorney General.13 N.J. STAT. ANN. § 10:6-2 (stating “the Attorney General may bring a civil action for
damages and for injunctive or other appropriate relief. . . . If the Attorney General proceeds with
and prevails in an action brought pursuant to this subsection, the court shall order the distribution
of any award of damages to the injured party and shall award reasonable attorney’s fees and costs
to the Attorney General.”)
Sovereign immunity should not apply to violations of a constitutional right, because no
branch of government created the constitution. The New Jersey State Constitution was created by the people to govern their government.14 Furthermore, a state bill of rights will be enacted in
13The Attorney General may also bring a civil action for deprivations of an individual’s “substantive due process or equal protection rights, privileges, or immunities” secured by the Constitution or laws of the United States. Id.
14
At a time when the responsiveness of all levels of government is being continuously challenged, it is difficult to continue to support such an arbitrary and unjust doctrine [of sovereign immunity]. It seems even more difficult to believe that the State of New Jersey is willing to provide a crime compensation fund for payments to victims of crime – a victimization over which the State has little effective control – and at the same time continue to refuse to permit itself to be sued when its own conduct and that of its employees has harmed equally innocent third persons. MAY 1972 N.J. ATT’Y GEN. REP., TASK FORCE ON SOV. IMMUNITY ch. 2, at 7. See also Rochinsky v. N.J. Dept. of Transp., 110 N.J. 399, 407 n.3 (1988) (concluding that the Task Force Commentary has the precedential value of legislative history). Accord Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 208 n.2 (2004).
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order to provide affirmative rights which define the limits of permissible governmental action. Under federal law, the Due Process Clause places no affirmative duty upon a state to
protect its citizens, but it does provide a boundary which will limit a state’s power to act. DeShaney v. Winnebago Co. Dept. of Soc. Servs., 489 U.S. 189, 195 (1989). Cf. D.R. v. Middle Bucks Area Voc. Tech. School, 972 F.2d 1364, 1372 (3d Cir. 1992); Filakowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 465 (3d Cir. 1990) (finding mentally retarded adult’s liberty not restrained by state where he was not required to remain in facility and “enjoyed considerable freedom of movement.”) The Third Circuit has determined that the state’s intervention under the surrogate care system provides one situation from which certain basic duties flow. Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (holding “when the state places a child in state-regulated foster care, the state has entered into a special relationship with that child which imposes upon it certain affirmative duties.”)15 The New Jersey legislature agreed when it placed an affirmative duty on the State by statute. Child Placement Bill of Rights Act, N.J. STAT. ANN. 9:6B-1 to 9:6B-6 (1991).
As discussed in this opinion, the New Jersey Tort Claims Act and the Child Placement Bill of Rights Act both provide remedies against the State. Thirty years ago, the legislature opened the State to suit under a tort claims act. In response to inaction under the State laws, the legislature provided a specific bill of rights act to address the rights of children within the State surrogate care system. Recently, the legislature enacted a civil rights act to provide additional remedies under the New Jersey Constitution.
15
Compare G-69 v. Degnan, 745 F. Supp. 254 (D.N.J. 1990) (Brotman, J.) (“Since DeShaney, courts have struggled with whether state conduct short of actually taking a person into physical custody is sufficient to create a special relationship such that an affirmative duty is owed.”)
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Because these remedies are available, it is not likely under the legislative scheme that an additional remedy may be inferred under the New Jersey Constitution for the circumstances of this case. The court must conclude that insufficient justification has been offered to provide the requested remedy against the State government at this time. Counts Four and Five are dismissed.
3. Other State Statutes (Counts Seven through Ten).
Plaintiffs’ Counts Seven, Eight, Nine and Ten each seeks damages for alleged breaches of statutory and regulatory provisions under New Jersey statutes. (Compl. ¶ 173; Compl. ¶ 178; Compl. ¶ 182; Compl. ¶ 185-191.) These statutory provisions do not explicitly nor independently provide remedies. The court declines to find that any private right of action can be implied within any of these statutes. Instead, a breach of a statutory provision may provide evidence of a duty in a negligence action. Because these counts do not articulate separate causes of action from the Count alleged under the Tort Claims Act, below, they shall be dismissed.
C. Negligence under the New Jersey Tort Claims Act. (Count Eleven).
New Jersey law supplies duties to its governmental agencies for the protection of children when administering child placement programs. N.J. STAT. ANN. §§ 9:6B-1 to 9:6B-6; §§ 30:4C50 to 30:4C-65; §§ 30:4C-1 to 30:4C-83. See also Frugis v. Braccigliano, 177 N.J. 250, 282 (2003) (remanding and directing that the jury should be instructed on the heightened duty of school boards to ensure students’ safety from foreseeable harms). Plaintiffs allege that the public employees charged with overseeing these programs breached this duty and caused them harm. Plaintiffs have properly stated claims for negligence which fall within the waiver of sovereign immunity provided by the TCA. N.J. STAT. ANN. 59:1-2 (1972).
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Defendants contend, however, that specific immunities under the TCA operate to shield them from all liability under this Count. The immunities claimed do not apply to the actions of the public employees who were alleged to have caused the harm here.
1. Licensing Immunity under the TCA. Defendants’ attempt to claim that their responsibilities merely amounted to providing a license for foster care and adoptions. Ball v. N.J. Telephone Co., 207 N.J. Super. 100, 504 A.2d 29 (App. Div. 1986) (determining that the government cannot evade liability for its own conduct which created a dangerous condition on its property merely because it also provided a license for placement of a telephone pole). This immunity for licensing activities is a narrow exception to the waiver of sovereign immunity under the TCA. N.J. STAT. ANN. § 59:2-5 (1992). The protected licensing functions only include those activities directly related to the issuance or denial of a license application. Ball states that “the immunity accorded by the statute was intended to protect public bodies in the performance of their discretionary and ministerial licensing functions.” Id. at 110. The agency activities and oversight alleged in this action fall outside of the exception. The activities alleged here far exceed the scope of merely providing a license to a foster parent or adoptive parent. Plaintiffs are entitled to present evidence arising from the Defendants’ activities seeking to protect the welfare of the Plaintiffs during the surrogate placement process.
2. Immunity for Enforcement of the Law under the TCA. Defendants claim that there is no waiver of sovereign immunity as to actions taken by them as an enforcer of the law. Plaintiffs have alleged claims for a failure by the agency to fulfill its duties in oversight over the child placement process. The claims do not seek damages for the
29

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failure of any agency to enforce regulations or to provide law enforcement. See, e.g., Saladana v. Dimedio, 646 A.2d 522 (App. Div. 1994) (distinguishing between negligence claims and claims against the government serving in its “role as enforcer of the laws.”) Instead, the activities alleged fall outside the scope of the limited exception to New Jersey’s waiver of sovereign immunity for enforcement of the law. N.J. STAT. ANN. § 59:2-4 (1992). See also Cadmus v. Long Branch Bd. of Ed., 155 N.J. Super. 42 (1977). Plaintiffs are entitled to present evidence arising from the Defendants oversight of the surrogate placement process which falls outside the scope of the state’s immunity for law enforcement activities.
3. Judicial Immunity under the TCA. The Defendants attempt to immunize all of their actions by suggesting that the judicial removal proceeding resulted in the entire cause of action. The argument ignores that the complaints against the Defendants arise from conduct which extends beyond their participation in any judicial removal proceedings. See, e.g., Delbridge v. Schaeffer, 569 A.2d 872 (N.J. Law Div. 1989) (asserting malicious prosecution claim that the judicial proceeding which resulted in the removal of their children had been unfair). Caseworkers are entitled to absolute immunity for their actions in preparing for dependency proceedings but that immunity does not extend beyond the actual proceedings. Ernst v. Child and Youth Servs. of Chester Co., 108 F.3d 486, 495 (3d Cir. 1997) (holding that caseworkers’ “immunity is broad enough to include the formulation and presentation of recommendations to the court in the course of such proceedings.”); Miller v. Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999) (declining to extend the immunity to investigative or administrative acts). As such, Plaintiffs are entitled to present evidence which falls outside the scope of this
30

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narrow exception. 4. Negligence of Private Actors.
Finally, Defendants suggest that they are not responsible for the abuse to the children because the abuse itself was caused by the adoptive parents, who are private actors. Under the circumstances of this case, the argument lacks merit because the negligence of the adoptive parents is not at issue. Though as a general proposition the government is not required to protect individuals against private violence, under certain circumstances, affirmative duties of care will be imposed. Nicini, 212 F.3d at 806. Cf. D.R., 972 F.2d at 1374 (discussing the liability which may arise when a states’ affirmative acts work to a plaintiff’s detriment by exposing them to danger). Furthermore, State law imposes certain separate affirmative duties in the child placement context on the various state agencies involved in this case. Child Placement Bill of Rights Act, N.J. STAT. ANN. 9:6B-1 to 9:6B-6 (1991). The failures and actions by the state government which breached these affirmative duties support a claim for negligence. Defendants’ argument also ignores those actions taken by the state to intervene by placing the Plaintiffs into surrogate care, thereby giving rise to affirmative duties.
D. New Jersey Law Against Discrimination. (Counts Twelve and Thirteen).
The LAD prohibits discrimination against persons on the basis of enumerated categories, which include persons who are handicapped. N.J. STAT. ANN. § 10:5-4.1 (2000). The statutory definition of “handicapped” has been construed broadly to cover more than severe disabilities. See, e.g., Clowes v. Terminix Int’l, Inc., 109 N.J. 575, 593 (1988); Olson v. Gen’l Elec. Aerospace, 966 F. Supp. 312, 315 (D.N.J. 1997). However, the statute only addresses
31

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discrimination in three areas of public concern: employment, places of public accommodation, and housing. N.J. STAT. ANN. § 10:5-12 (2000).
Plaintiffs allege that the individual Defendants and state agency discriminated against them on the basis of their status as persons with eating disorders, thereby violating the LAD. These claims do not fall within the areas where discrimination has been prohibited under the statute. Plaintiffs have not alleged that they were denied employment or refused housing by DYFS. Nor is DYFS considered to be a place of public accommodation. Doe v. Div. of Youth & Fam. Servs., 148 F. Supp. 2d 462, 496 (D.N.J. 2001). The definition of a place of public accommodation is not so broad as to include the services provided by a state agency within the meaning of public accommodation. Instead, it refers to facilities maintained for the use of the general public. See, e.g., Nat’l Org. for Women v. Little League Baseball, 127 N.J. Super. 522 (App. Div. 1974), aff’d, 67 N.J. 320 (1974).
As a result, Plaintiffs have failed to properly state a claim under the LAD. The claims under Causes of Action numbered Twelve and Thirteen are thereby dismissed.
E. Joint Tortfeasors. Defendants final effort to dismiss this action alleges that the adoptive parents are necessary parties to the action and, therefore, they must be joined pursuant to Rule 19. FED. R. CIV. P. 19. As a matter of law, joint tortfeasors are not indispensable parties. Furthermore, neither the New Jersey apportionment rule nor the case law interpreting it suggest that joint tortfeasors must be named defendants in order for it to apply. N.J. STAT. ANN. § 59:9-3 (limiting contribution by public entities to the extent of the public defendant’s percentage share of culpability when joint tortfeasors are available). Cf. Frugis v. Bracigliano, 177 N.J. 250 (2003).
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The District Court of New Jersey has stated “it is never necessary . . . to join a joint tortfeasor as a defendant in an action against other tortfeasors.” Rodin Props.-Shore Mall v. Cushman & Wakefield of Pa., 49 F. Supp. 2d 709 (D.N.J. 1999) (Brotman, J.) Defendants may implead the Jacksons under Rule 14(a) if they believe it is necessary. FED. R. CIV. PROC. 14(a). IV. CONCLUSION.
For the foregoing reasons, the court finds that Defendants’ Motion to Dismiss is denied with respect to Counts One through Three under Section 1983, Count Six under the New Jersey Child Placement Bill of Rights, and Count Eleven under the New Jersey Tort Claims Act. Plaintiffs’ Counts Four and Five under the New Jersey Constitution, Counts Seven through Ten under New Jersey statutes and regulations and Counts Twelve and Thirteen under the Law Against Discrimination are hereby dismissed for failure to state a claim for which relief can be granted. Count Fourteen was voluntarily dismissed by Plaintiffs. DATED: April 6, 2005
_____________________________________ HONORABLE STANLEY S. BROTMAN UNITED STATES DISTRICT JUDGE
33

 
 Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 1 of 39 PageID: 615 ·'

MICHAEL CRITCHLEY, ESQ. (MC-9956) 354 Main Street West Orange, New Jersey 07052
(973) 731-9831
Attomeys for Bruce Jackson
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

BRUCE JACKSON by his Guardian Ad Litem, WILLIAM TAMBUSSI,

Plaintiffs,
v.

DNISION OF YOTJTH AND FAMILY SERVICES, DEPARTMENT OF HUMAN : SERVICES, STATE OF NEW JERSEY, PATRllA BALASCO-BARR, MICHELE :
GUHL, CHARLES VENTI, DORIS JONES,: MANAGERIAL DOES 1-10,
SUPERVISORY DOES 1-10, and CASEWORK DOES l-10,

Defend ants.

.. ·-~~~··

-~~~~~~~~-

Civil No.: 04-CV-3553 COMPLA1NT AND JURY DEMAND

NATURE OF THE ACTION
1. Plaintiff, Bruce Jackson (hereinafter "Plaintiff' or "Bruce"), by and through his Guardian Ad Litem, William Tambussi, 1 and his counsel by way of Complaint against the Defendants hereby says:
2. This is an action to remedy federal and state civil rights violations and tortious conduct committed by the State of New Jersey and its employees against the Plaintiffwho was
1 A Motion to appoint William Tambussi as Guardian Ad Litem to prosecute Plaintiff's claims has been filed simultaneously with this Complaint.

EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 2 of 39 PageID: 616
conduct committed by the State of New Jersey and its employees against the Plaintiff who was placed by the Division of Youth and Family Services ("DYFS") of the Department of Human Services ("DHS") in a home where he was systematically starved. Defendants failed to adequately monitor Plaintiffs safety and well-being, or provide for his basic needs and treatment while in their care resulting in their maltreatment by the Jaster and adoptive parents Defendants approved for him.
3. In the early morning hours of October 10, 2003, a resident of Collingswood, New Jersey heard someone rooting through the trash outside his home. The resident approached and observed a boy he believed to be less than ten years old. The boy was emaciated. The resident summoned the Collingswood Police Department, which responded to the scene. The boy was subsequently identiJ1ed as Bruce Jackson, the adopted son ofDYFS foster parents Raymond and Vanessa Jackson. Plaintiff Bruce Jackson stood just 4 feet tall and weighed a mere 45 pounds_ The responding officers were shocked to leam that Bruce Jackson was 19 years old.
4. When the police entered the Jackson home, they observed three other adopted boys B ages 14, I 0 and 9 Ball of whom were extraordinarily small in stature and emaciated in appearance. The 14-year-old boy, PlaintiffK.J., weighed 40 pounds. PlaintiffT.J., age 10, weighed 28 pounds. PlaintiffM.J., who was nine years old, weighed just 23 pounds. Their teeth were rotted, their stomachs were distended, and the outlines of their ribs and shoulders were readily visible. DYFS removed Plaintiffs from the home later that day.
5. Plaintiff was admitted to Our Lady of Lourdes Hospital due to malnourishment, severe anemia and growth retardation. He spent several weeks being fed first intravenously and later with solid food. By February 2004, less than four months after being removed from the Jackson home, PlaintiffBruce Jackson had gained 37 pounds and had grown 6 inches.
2
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 3 of 39 PageID: 617
6. Medical professionals have concluded that Plaintiff was systematically starved in the Jackson home over a period of many years. On May 5, 2004, Raymond and Vanessa Jackson were indicted on Aggravated Assault and Endangerment charges for "failing to provide proper and sufficient nutrition resulting in severe growth retardation and malnutrition" from the time of placement of Bruce and the minor Jackson brothers in the Jackson foster home as DYFS foster children through October 10, 2003.
7. Defendants who placed Bruce Jackson in the Jackson foster home in 1991 had been on notice for years that the Jacksons were not providing adequate care to the Plaintiff. Defendants were also on notice that training, supervision and communication at DYFS were inadequate to protect the Plaintiff from known risks of harm in inapprop1iate foster homes. As detailed below, from 1994 to October 10,2003, Defendants acted and failed to act in reckless disregard and total indifference to the desperate plight of the Plaintiff, in violation of his federal and state constitutional rights, and numerous state statutory obligations.
8. Defendants railed to ensure that PlaintiO'had his basic needs met during his time in foster care. Defendants failed to ensure that Plaintiff received adequate nourishment and medical and mental health care while in state custody, and failed to appmpriately monitor and approve the Jacksons as a foster and ultimately an adoptive home for Plaintiff Bruce Jackson, resulting in significant injury. Defendants also failed to report, investigate and protect Plaintiff from ongoing maltreatment and starvation in the Jackson home.
THE PARTIES 9. Plaintiff Bruce Jackson, D.O.B.: September 9, 1984 is 21 years old. I 0. Plaintiff Bruce Jackson is under the custody care of the New Jersey Department
3
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 4 of 39 PageID: 618
of Human Services Division ofDevelopmental Disabilities, Bureau of Guardianship Services. II. Defendant Division of Youth and Family Services is a division of the Department
of Human Services located at 50 East State Street, P.O. Box 717, Trenton, New Jersey, 08625. 12. Defendant Department of Human Services is a principal department of the
Executive Branch of state government located at 222 South Warren Street, P.O. Box 700, Trenton, New Jersey, 08625.
13. Defendant State of New Jersey is the Executive Branch of state government located at the State House, P.O. Box 001, Trenton, New Jersey, 08625.
14. Defendant Patricia Balasco·Barr was the Director of DYFS fi:om 1994 to J997, and is a Managerial Defendant. She is sued in her personal capacity. Her address is 1001 West Franklin Street, P.O. Box 842027, Richmond, Virginia, 23284.
15. Defendant Michele Guhl was the Director ofDYFS from 1997 to 1998, and is a Managerial Defendant. She is sued in her personal capacity. Her address is 50 West State Street, Suite 1012, Trenton, New Jersey, 08608.
16. Defendant Charles Venti was the Director of DYFS from 1998 to 2002, and is a Managerial Defendant. He is sued in his personal capacity. His address is !54 Lake Avenue, Red Bank, New Jersey, 07704.
17. Defendant Doris Jones was the (Acting) Director of DYFS from 2002 to 2003 and is a Managerial Defendant. She is sued in her personal capacity. Her address is 420 East Pine Street, Lawnside, New Jersey, 08045.
18. Defendant Managerial Docs, held managerial positions within DYFS and/or DHS with responsibilities to ensure adequate ·training and supervision of, and/or communication
4
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 5 of 39 PageID: 619
among DYFS and DHS supervisory and casework staff responsible for the safety and well-being of the Plaintiffs. They are sued in their personal capacities.
I 9. Defendant Supervisory Does, held supervisory positions within DYFS and/or DHS with responsibilities to supervise the casework staff responsible for the safety and wellbeing of the Plaintiffs. They are sued in their personal capacities.
20. Defendant Casework Does, held caseworker, investigator, and/or inspector positions within DYFS and/or DHS with responsibilities for the safety and well-being of the Plaintiffs. They are sued in their personal capacities.
BACKGROUND
21. The Division of Youth and Family Services is the agency within the Department of Human Services established by the State of New Jersey to investigate reports of suspected child abuse and neglect; provide necessary services to children and fan1ilies to protect children who are the subject of such reports, including placing children into out-of-home custody; provide proper care to abused and neglected children in state custody; ensure the safety and well-being of such children in state custody; protect such children in state custody from further maltreatment; and secure pennanent placements for such children in state custody.
22. If a child is removed from her home and placed in DYFS custody, her case is assigned to a district office caseworker. A regional DYFS Foster Home Unit is responsible for matching the child to an appropriate placement. The district office from the county where the child was removed or in the county where the child is placed assumes case planning and case management responsibilities over the child aud the placement. These responsibilities include making face-to-face and other regular contacts with the foster child and ensuring that the child and foster family are receiving necessary services.
5
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 6 of 39 PageID: 620
23. Once adoption is identified as a child's case goal, her case is forwarded from the district office to one of DYFS's several regional Adoption Resource Centers ("ARCs"). An adoption cjij;eworker then takes over case management responsibilities. Regional ARCs are responsible for finalizing adoptions by pursuing. termination of parental rights or voluntary surrenders of custody and consents for adoption, and ensuring that the child is placed in an appropriate, safe and nurturing adoptive home.
24. DYFS was responsible for approving or certifying/licensing foster homes during most of the relevant times at issue through its District Office Foster Home Units, Regional Foster Home Units, and its Bureau of Licensing. This responsibility was transferred to DHS's Office of Licensing ("OOL") in 2003. Annual re-evaluations for DYFS foster homes are required. A regional Institutional Abuse Investigation Unit ("JA IU") is responsible for investigating reports of abuse and neglect in DYFS placements. The responsibility to train DYFS staff was slu~red at various times by DYFS and DHS.
FACTS 1991-1994 25. Defendants approved Vanessa and Raymond Jackson as DYFS foster parents in August 1991. 26. In December 1991, Defendants placed Plaintiff Bruce Jackson ("Bruce") in the . Jackson fo~ter home. At that time, Bruce was seven years old, was 48.25 inches tall, and weighed 43.75 pounds. Thereafter, Defendants were repeatedly put on notice that the Jacksons were not meeting Bruce's medical and nutritional needs, but failed to take appropriate remedial steps to ensure that this foster home was safe. 27. In September 1992, for example, DYFS received a call indicating that another foster child in the Jackson household alleged that he and Bruce were being mistreated and that this other foster child was hungry. The caller also stated that the foster child had not grown in
6
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 7 of 39 PageID: 621
height, had only gained half a pound while in the Jacksons' care, and was observed to have thin chest bones. DYFS conducted an investigation, but no medical examinations were conducted, nor did DYFS address the foster child's complaints of hunger in the Jackson home. Defendants did not substantiate the allegations or implement any further monitoring of the home.
28. In February 1993, Vanessa Jackson reported to the caseworker during a home visit that Plaintiff Bruce Jackson had been caught taking his classmates' lunches and looking for food in the trash. The caseworker noted that Bruce had compulsive eating. Bruce was eight and a half years old and weighed 51 pounds.
29. In July 1994, when the caseworker transported Plaintiff Bruce: Jackson to an appointment, Plaintiff Bruce Jackson pleaded to be taken to eat at McDonald's or Dunkin Donuts, but the worker refused. On the ride home, PlaintiffBmce Jackson opened the glove compartment, found half a cookie and ate that, and then pleaded with the caseworker not to tc11 Mrs. Jackson.
30. In December 1994, the caseworker noted that PlaintiffBmcc Jackson was thin for his size and that he stole food at school. The caseworker noted that PlaintiffBmce Jackson had an "eating disorder" and "parasites i.n his body which [sic) will restrict his growth." There was no medical basis for these conclusions, nor did Defendants follow up to ensure medical or psychological treatment for these identified issues.
31. Defendants continued to approve the Jackson home as a DYFS foster home, but without addressing Plaintiff Bruce Jackson's starvation in the home or requiring medical documentation of his medical treatment. Re-evaluations of the home were conducted in 1992 and 1994.
7
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 8 of 39 PageID: 622
32. Also within this time period, Managerial Defendants closed the DYFS Training Academy and cut back on the training made available to DYFS staff.
~ 33. Despite the Jacksons' known history of not meeting PlaintiffBruce Jackson's nutritional and medical needs over a period of years, Defendants failed to conduct regular faceto-face visits with the Plaintiff, or re-evaluate the Jackson foster home. 34. In January 1995, Plaintiff Bruce Jackson's doctor contacted the caseworker, informing him that she terminated services due to Mrs. Jackson's failure to comply with her suggestions and inappropriate administration of Plaintiff Bruce Jackson's medication. Defendants took no action to investigate and protect PlaintiffBruee Jackson who was starving in the Jac.kson home. 35. In May 1995, DYFS received a report .from PlaintiffBruce Jackson's school after he arrived to school with a bruise on his fate. The caller expressed concern that Plaintiff Bruce Jackson had failed to gain weight, always appeared hungry, and that Plaintiff Bruce Jackson complained that the Jacksons did not give him enough to eat The caller also advised that Vanessa Jackson had delayed taking Plaintiff Bruce Jackson to a medical appointment. DYFS placed the Jackson home on suspension pending the investigation. 36. Plaintiff Bruce Jackson told the DYFS investigator that he did not get enough to eat When questioned, Mrs. Jackson told !he investigator that PlaintiffBruce Jackson had stomach problems that required her to control his diet. The investigator did not request a medical examination ofPlaintiffBruce Jackson or explore or recommend any further plan of treatment or monitoring as required by reasonable professional judgment. The allegations were apparently not substantiated_
8
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 9 of 39 PageID: 623
37. Defendants left Plaintiff Broce Jackson in the Jackson home where they knew, or should have known, that Plaintiff was at imminent risk of further harm, in deliberate indifference to Plaintiff Broce Jackson's safety and well-being.
38. Both in July and August 1995, a caseworker noted that Plaintiff Broce Jackson appeared underweight. Defendants took no action as a result.
39. In September 1995, Plaintiff Bruce Jackson was not sent to school by the Jacksons. When DYFS found out the next month that Plaintiff Bruce Jackson was not going to school, the Jacksons belatedly advised DYFS that they had begun home-schooling him. DYFS did not question the Jacksons' decision to home-school PlaintiiTBruce Jackson, despite the obvious implication that Vanessa Jackson had removed Plaintiff Bruce Jackson from school because the school had made allegations of abuse four months earlier. Plaintiff Bruce Jackson was 11 years old and weighed 48.84 pounds.
40. A December 1995 DYFS adoption assessment of Plaintiff Bruce Jackson noted that the Jacksons had an alarm system in place since 1992 that denied him access to the kitchen. It was noted that Plaintiff Bruce Jackson was surreptitiously finding and eating food at home. Defendants took no actions to have this alarm system removed or investigate whether Plaintiff Bruce Jackson was being adequately fed.
41. By the end of 1995, Plaintiff Bruce Jackson was II years old and weighed less than 47 pounds. He had lost almost 10 pounds in the Jackson home since March of that year and his weight had fallen off the low end of any pediatric growth chart. Instead of pursuing innnediate hospitalization for PlaintitiBmce Jackson who was being starved, Defendants processed the Jacksons' application for an adoption subsidy for Plaintiff Bruce Jackson.
9
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 10 of 39 PageID: 624 •
42. Defendants failed to communicate, report and investigate the known systematic deprivation of food by the Jacksons from Plaintiff Bruce Jackson, and the obvious malnourishment and documented failure to thrive of Plaintiff Bruce Jackson. Defendants recklessly left Plaintiff in the Jackson home even though they knew or should have known of Plaintiffs ongoing maltreatment by the Jacksons.
1996 43. In 1996, despite further evidence that Plaintiff Bruce Jackson was being starved and continued to deteriorate in the Jackson home, Defendants took no action to protect him in reckless disregard for his health and well-being. Defendants also failed to conduct regular faceto-face visits with the Plaintiff, and re-evaluated the Jackson foster home without interviewing Plaintiff Bruce Jackson or reviewing his medical inf01mation. 1v[ureover, Defendants approved PlaintilT Bruce Jackson to be adopted in the Jackson foster home without meeting similar requirements that would have revealed the ongoing maltreatment in the home. 44. In Fcbrua<y 1996, Mrs. Jackson reported that Plaintiff Bruce Jackson's physician had <eferred him to an endocrinologist in order to evaluate whether he had a growth problem. This referral was never acted npon by either the Jacksons or Defendants, and Plaintiff Bruce Jackson was never seen by an endocrinologist. From 1996 until October 2003, PlaintiiTBruce Jackson received no medical care. 'rhe worker also documented in Plaintiff Bruce Jackson's record at this time that Plaintiff Bruce Jackson's school was concerned that he was not receiving occupational therapy. 45. In March 1996, Mrs. Jackson reported to the caseworker that Plaintiff Bruce Jackson had recently gone into a neighbor's trashcan looking for food. The worker observed that
10
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 11 of 39 PageID: 625
•
Plaintiff Bruce Jackson's growth appeared "slow or delayed," but Defendants did not pursue medical treatment for him or ensure that he was being adequately fed.
46. In June, a therapist who had been seeing PlaintiffBruee Jackson noted in her summary progress report to DYFS that he had climbed out of a second story window to get access to a neighbor's garbage can. The therapist also noted that Vanessa Jackson informed her that the Jackson family kept their food locked away. Defendants failed to investigate whether Plaintiff Bruce Jackson was being adequately fed in the Jackson home.
47. That same month, Defendants submitted a final report to the Family Court supporting PlaintiiiBruce Jackson's adoption by the Jacksons, falsely stating "Bruce Jackson's physical, emotional, and social development has been very good since placement in the home. He has an eating disorder, which is being attended to by a specialist"
Plaintiff Brnce Jackson is Adopted by the Jacksons 48. Plaintiff Bruce Jackson's adoption by Raymond and Vanessa Jackson was finalized with Defendants' concurrence on July 8, 1996, at which point tbe Jacksons began to receive a monthly adoption subsidy. 49. Defendants failed to monitor Plaintiff Bruce Jackson immediately post-adoption. Jbr at least six months as required. 50. Defendants failed to interview and get medical infonnation for all members of the Jackson household as required, including Plaintiff Bruce Jac.kson who was dramatically deteriorating in the home. 51. Defendants failed to investigate why the Plaintiff was deteriorating or evaluate the quality of care they were receiving in the Jackson home.
11
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 12 of 39 PageID: 626
1997 52. In 1997, despite the fact that Plaintiff Bruce Jackson was being starved in the Jackson home and he was no longer receiving any medical care, Defendants approved Plaintiff Bruce Jackson for adoption by the Jacksons in reckless disregard for his health and well-being. Defendants failed to conduct regular face-to-face visits with the Plaintiff Bruce Jackson and . reevaluate the Jackson foster home without interviewing Plaintiff or reviewing his medical information.
1998-2003 53. Between 1998 and the October 2003 hospitalization ofPlaintiffBruce Jackson, Defendants continued to use and approve the Jackson home as a foster home and adoptive
placement for additional children. Foster child J.J. was ad(lpted by the Jacksons in 2000, and
foster child B.P. 's adoption by the Jacksons had been approved by DYFS and was pending in October 2003.
54. As a result, DYFS employees were in the home at least 38 times during these years, and d(lCUmented seeing all or some of the adopted children, including Plaintiff Bruce Jacks(ln, multiple times without taking any acti(ln to rescue them from ongoing starvati(ln.
55. Defendants who had contact with Plaintiff Bruce Jackson failed to report and investigate suspected abuse and neglect ofthe Plmntiff as required by law.
56. The Jackson home was reevaluated and approved by DYFS and/or DHS in 1999 and twice in2002, despite the Jacksons' documented hist(lry of not meeting the medical and basic nutritional needs of children placed in their care by DYFS. Defendants failed to interview household members including Plaintiff Bruce Jacks(ln, nor was his medical information reviewed, as required for continued foster home approval.
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 13 of 39 PageID: 627
CONCLUSION 57. Defendants failed to protect Plaintiff Bruce Jackson due to a decade ofrepeated acts and omissions at all levels ofDYFS and/or DHS. All a result, Plaintiff suffered grievous hann and pennanent physical, emotional, developmental, psychological and psychiatric injuries. 58. Managerial Defendants failed to ensure that DYFS and DHS staff was adequately trained and supervised to track and understand information relevant to the screening and approval of the Jackson foster home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Supervisory Defendants failed to adequately supervise DYFS and DHS staff responsible for screening and approving the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Casework Defendants failed to screen and approve the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk ofhann to Plaintiff. 59. Managerial Defendants failed to ensure that DYFS staifwas adequately trained and supervised to screen and monitor the Jackson foster home in a maimer that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Supervisory Defendants failed to adequately supervise DYFS staff responsible for screening and monitoring the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff Casework Defendants failed to adequately screen and monitor the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliherate indifference to the risk of harm to Plaintiii
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 14 of 39 PageID: 628
60. Managerial Defendants failed to ensure that DYFS staff was adequately trained and supervised to conduct required regular face-to-face visits with Plaintiff in a marmer that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk ofhann to Plaintiff. Supervisory Defendants failed to adequately supervise DYFS staff responsible for conducting required regular face-to-face visits with Plaintiff in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Casework Defendants failed to conduct required regular face-to-face visits with Plaintiffin a marmer that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk ofhann to Plaintiff.
61. . Managerial Defendants failed to ensure that DYFS and DHS staff was adequately trained to report and investigate suspected abuse and neglect in the Jackson home or of Plaintiff
as required by law in a manner that was consistent with the exercise of reasonable professional
judgment, and in deliberate indifference to the 1isk of harm to Plaintiff. Supervisory Defendants failed lo ensure that DYFS and DHS staff report and investigate suspected abuse and neglect in the Jackson home or of Plaintiff as required by law in a manner that was consistent with !he exercise of reasonable professional judgment, and in deliberate indifference to the risk ufhann to Plaintiff. Defendants who had contact with Plaintifffailcd to report and investigate suspected abuse and neglect in the Jackson home or of Plaintiff as required by law in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff.
62. Managerial Defendants failed to ensure that D\'FS staff was adequately trained and supervised to track, understand, and protect the medical and mental health of Plaintiff in a manner that was consistent with the exercise of reasonable professional judgment, and in
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 15 of 39 PageID: 629
deliberate indifference to the risk of harm to Plaintiff. Supervisory Defendants failed to adequately supervise DYFS staff responsible for tracking, understanding, and protecting the medical and mental health ofPlaintiffin a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Casework Defendants failed to adequately track, understand, and protect the medical and mental health of Plaintiff in a mwmer that was consistent with the exercise oheasonable professional judgment, and in deliberate indiflerencc to the risk of harm to Plaintiff
63. Managerial Defendants failed to ensure that DYFS staff was adequately trained and supervised to ensure the regular a11d necessary medical and mental health treatment of Plaintiff in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Supervisory Defendants failed to adequately supervise DYFS staff responsible for the regular and necessary medical and mental health treatment of Plaintiff in a mmmer that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of hann to Plaintiff. Casework Defendants failed to adequately ensure the regular and necessary medical and mental health treatment ofP!aintiffin a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk ofhann to Plaintiff.
64. Manage~ial Defendants failed to ensure that DYFS staff was adequately trained and supervised to avoid the unjustified labeling of Plaintiff as handicapped and unlawful discrimination against them as a result. Supervisory Defendants failed to adequately supervise DYFS staff to avoid the unjustified labeling of the Plaintiff as hw1dicapped w1d unlawful discrimination against him as a result. Casework and Supervisory Defendants' unjustified perception and labeling of Plaintiff as having an "eating disorder" and "growth deficiency"
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 16 of 39 PageID: 630
handicap caused Defendants to discriminate against him by failing to address his physical deterioration and failure to grow while in a DYFS foster home.
65. The Managerial Defendants failed to ensure that DYFS staff shared, reported and investigated evidence of abuse and neglect of foster children in the Jackson home managed by
different caseworkers in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Supervisory Defendants failed to adequately supervise DYFS staff to ensure that evidence of abuse and neglect of the foster children in the .Tackson home was shared, reported and investigated in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Casework Defendants failed to share, report or investigate evidence of abuse and neglect of the foster children in the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plai.ntif£
66. Managerial Defendants failed to ensure that D'{FS staff was adequately trained and supervised to ensure that required pre-adoption protections were understood and met before approving the Plaintiffs adoption in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference lo the risk ofha1m to Plaintiff. Supervisory Defendants failed to ensure that all the necessary requirements to protect Plaintiff had been met before his adoptions in the Jackson home were approved in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Casework Defendants failed to interview and obtain medical information for all members of the Jackson household as required before the Plaintiffs adoptions was approved in a
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 17 of 39 PageID: 631
manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff.
67. Managerial Defendants failed to ensure that DYFS staff was adequately trained and supervised to ensure the required monitoring of Plaintiff immediately post-adoption in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff. Supervisory Defendants failed to adequately supervise DYFS staff responsible for the required monitoring of Plaintiff in the Jackson home immediately post-adoption in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the 1isk of harm to Plaintiff. Casework Defendants failed to adequately monitor Plaintiff in the Jackson home immediately post-adoption consistent with professional judgment in a maimer that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiff.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983 Substantive Due Process: Special Relationship (Against the Managerial Does, the Supervisory Does, and the Casework Does, in their
personal capacities) 68. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 69. At all times when Defendants had Plaintiff in their foster care custody, Defendants had a special relationship with Plaintiff, which imposed upon Defendants an affirmative duty to care for and protect Plainti!Tfrom harm under the Fourteenth Amendment to the United States Constitution.
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70. Defendants breached that duty. Defendants' actions and.omissions were a substantial departure from the exercise of reasonable professional judgment, practice, and standards, and amounted to deliberate indifference to Plaintiff's welfare.
71. Defendants acted with deliberate indifference to and callous disregard of repeated indications and signs that Plaintiff was not receiving adequate care, nourishment, and services while in foster care, and that he was severely under-developed.
72. Defendants failed to ensure the safety and well-being ofPlaintiffwhik: they were in foster care and in the custody ofthe State, thus proximately causing him substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm.
73. The actions and inactions that resulted in this harm include but are not limited to: the failure to ensure that Plaintiff received basic necessities while in foster care, including adequate food and nourishment; the failure to ensure that Plaintiff received adequate ~edical care, treatment, and services while in foster care; the failure to adequately monitor Plaintiffs safety and well-being while the children were in foster care; the failure to provide Plaintiff with a safe and appropriate foster care placement; and the failure ((l adequately screen, approve, license and monitor the Jacksons as suitable foster parents.
74. Tn addition, the Managerial Does failed to assure the adequate training of the Supervisory and Casework Does conceming the provision of adequate care and services to foster children and the adequate screening, approval, licensure, and monitoring of foster homes, and failed to ensure that DYFS policies and procedures were interpreted and implemented in a consistent manner. The Managerial Does were aware for years of the inadequate training and other systemic deficiencies in the State' s foster care system tlmt contributed to the harm suffered by the Plaintiff but failed to take reasonable steps to remedy these deficiencies. The failure to
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 19 of 39 PageID: 633
adequately train the Supervisory and Casework Does was so obvious, and so obviously likely to result in a constitutional violation, that it an1ounted to deliberate indifference to Plaintiffs welfare. The failure to provide adequate training to the Supervisory and Casework Does directly resulted in the harms suffered by Plaintiff.
75. In addition, the Supervisory Does failed to adequately supervise the Casework Does with respect to the provision of adequate care and services to foster children and the adequate screening, approval, licensure, and monitoring of foster homes, and failed to ensure that DYFS policies and procedures were interpreted and implemented in a consistent manner. The Supervisory Does were aware for years of the inadequate supervision and other systemic deficiencies in the State's foster care system that contributed to the harm suffered by the Plaintiff but failed to take reasonable steps to remedy these deficiencies. Th.e Supervisory Docs were deliberately indifferent to Plaintiffs welfare by failing to lake action that was obviously necessary to prevent or stop the deprivation of Plaintiffs constitutional rights. The failure to adequate supervision to the Casework Does directly resulted in the hanns suffered by Plaintiff.
76. By virtue of the foregoing, Defendants deprived Plaintiff of various rights protected by the Due Process Clause of the Fourteenth Amendment, including but not limited to: the right to personal security and reasonably safe living conditions; the right to protection from harm; the right not to be harmed physically, emotionally, developmentally or otherwise; the right to basic life necessities, such as adequate food and nourishment; the right not to deteriorate in state custody; and the right to adequate medical care, treatment, and services consistent with the exercise ofreasonable professional judgment.
77. Defendants arbitrarily and capriciously deprived Plaintiff of his due process rights in the absence of any countervailing state interest.
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 20 of 39 PageID: 634
78. Plaintiffs substantive due process rights were clearly established constitutional rights at the time of Defendants' acts and omissions, and a reasonable individual would have known that their acts and omissions would violate these clearly established constitutional rights.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 Substantive Due Process: State-Created Danger (Against the Managerial Docs, the Supervisory Does, and the Casework Does i.n their
personal capacities) 79. Each of the foregoing paragraphs is incorporated as iffhlly set forth herein. 80. The Fourteenth Amendment to the United States Constitution guarantees Plaintiff the substantive due process right to be free from statc·crcatcd dangers. 81. Defendants violated this 1ight by taking affirmative steps to approve Plaintiff Bruce Jackson's adoption in the Jackson home and having the adoption finalized, which placed Plaintiff at imminent and foreseeable risk of danger and harm. 82. The physical, emotional, developmental, psychological, and psychiatric hann that Plaintiff suffered after being adopted by the Jacksons was foreseeable, and directly, and proximately caused by Defendants' tmconstitutional acts and omissions_ 83. At the time of Plaintiffs adoption, Defendants and Plaintiff had a special relationship, given that Plaintitiwas in foster care and in State custody. 84. Defendants' exercise of their authority to pursue and ask the Family Court to finalize the adoption ofPlaintiffby individuals who had a known history of failing to provide basic care and nourishment to Plaintiff created a risk of danger that would not have otherwise existed if Defendants had adequately screened and monitored the Jacksons as potential adoptive parents or identified an altemative appropriate adoptive placement.
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85. Defendants arbitrarily and capriciously deprived Plaintiff of his due process rights in the absence of any countervailing state interest.
86. Plaintiffs substantive due process rights to be free from state-created dangers were clearly established constitutional rights at the time of Defendants' acts and omissions, and a reasonable individual would have known that their acts and omissions would violate these clearly established constitutional rights.
THIRD CAUSE OF ACTION 42 U.S.C. § 1983 Procedural Due Process (Against the Managerial Does, the Supervisory Does, and the Casework Does in their
pcnonal capacities) 87. Each and every allegation of the Complaint is incorporated herein as if fully set forth. 88_ The foregoing actions a:nd inactions of Defendants resulted in Plaintiff being deprived of constitutionally protected liberty intere~ts without due process of law, which was a substantial factor leading to, and proximate cause ol: the physical, emotional, developmental, psychological, and psychiatric harm Plaintiff has suffered. 89. Plaintiffs was vested by virtue of the New Jersey Child Placement Bill ofrughts Act with certain state-created liberty interests protected by the federal Due Process Clause, including the right to be free from physical or psychological abuse; the right to receive adequate, safe, and appropriate food, clothing, and housing; the right to receive adequate and appropriate medical care; the right to have regular contact with case workers assigned to their case; the right to receive services of a high quality that arc designed to maintain and advance their mental and physical well-being; the right to receive an. educational program which maximized their
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 22 of 39 PageID: 636
potential; and the light to be free from unwarranted physical restraint and isolation. N.J.S.A. 9:6B-4(h)-(i), (k), (m)-(p).
90. Plaintiff was vested by virtue ofN.J.S.A. 30:4C-25 with certain state-created
liberty interest protected by the federal Due Process Clause, including the right to regular visits from Defendants while Plaintiff was in foster care to ensure that they were receiving adequate services and care.
91. Plaintiff was vested by virtue of various statutory and regulatory obligations imposed upon Defendants to adequately screen, approve, and monitor Plaintiff's foster homes, with certain state-created liberty interest protected by the federal Due Process Clause, including the right to a detailed home study of the Jackson home prior to Plaintiffs placement there, N.J.A.C. 10:122C-2.8(a); a right to have Defendants ensure th."lt Raymond and Vanessa Jackson were able to care effectively for Plaintiff as foster parents, N.J.A.C. !O:l22C-1.5(a); a right to have Defendants ensure that the Jacksons were providing the necessities oflife to their family, N.J.A.C. 10:122C-15(i); a right to have Defendants ensure that the Jacksons had income or other means of financial support that made them economically independent of Plaintiffs foster care maintenance payments, N..LA.C. 10:122C-1.5(j); a right to have Defendants ensure that the Jacksons used all of the money received in.the name of each Plaintiff to provide for that child's care, N.J.C.A. 10: 122C-1.5(k); a right to have Defendants ensure that the Jacksons had the ability to provide for Plaintiff's basic nutritional, developmental, educational, and health needs, and to provide Raymond and Vanessa Jackson with information on nutrition and child health needs, N.J.A.C. 10:122C-l.IO(a), 10:122B-4.l(b); aright to have Defendants ensure that Plaintiff received appropriate and necessary health care while in the custody of Raymond and Vanessa Jackson, and that Plaintiff received medical and dental examinations at least am1t1ally,
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N.J.A.C. 10:J22D-2.5; a right to have Defendants ensure that Vanessa and Raymond Jackson were properly trained to fulfill their obligations as foster parents, N.J.A.C. 10: 122D-2.7; a 1ight to have Defendants visit the foster home to assess compliance with sleeping space and life safety standards, to interview each household member not participating in pre-service training, and to verify information about each household member, N.J.A.C. 10:122B-5.3; a right to have Defendants obtain medical references for each member of the Jackson household, and for each new household member, N.J.A.C. 10:122C-2.3(a), (b); N.J.A.C. 10: 122C-l.5(b); a right to have Defendants support the Jacksons in fulfilling their roles with respect to Plaintiff's case goals, N.J.A.C. 10: 122B-4.l (h); a right to have Defendants conduct am1ual inspections ofthe foster homes, which shall include interviews with all foster children and other household members, N.J.A.C. 10: 122C-2.8(b), N.JAC. 10: 122C-2.9(b); a right to have Defendants promptly and thoroughly investigate any complaints or reports questioning Raymond and Vanessa Jackson's compliance with applicable statutes and/or regulations, NJ.A.C. 10: l22C-2.12(a); and a 1ight to
have Defendants ensu~e remove Plai11tiff (makes no sense) hom foster care with the Jacksons upon a determination that Plaintiff was not safe in the Jacksons' home, N.J.A.C. I0: 122E-2.1;
N.J.A.C. 10:1
92. Plaintiff was vested, by virtue ofvmious statutory and regulatory obligations
imposed upon Defendants to adequately screen and approve the Jackson home as an appropriate adoptive home for the Plainti Cf and to ensure Plaintiff's post-adoption safety and wel [are, witb certain state-created liberty interest protected by the federal Due Process Clause, including the right to have Defendants select Plaintiffs adoptive home based on an informed, objective judgment, after a full and careful assessment of each factor which could have· affected Plaintifl's ability to benefit physically, socially, and emotionally from the adoptive placement, N.J .A.C.
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10:121 C-4.1; the right to have Defendants perfonn a detailed pre-adoptive home study of the Jackson home, including ensuring that Raymond and Vanessa Jackson had the capacity to meet Plaintiffs physical and emotional needs and had disclosed any hi siory or child abuse or neglect or any criminal record, N.J.S.A. 9:3-54.2; N.J.A.C. 10:121 C-3.l(b); NJ.A.C. l0:121C-4.2; N.J.A.C. 10:121A-5.7; N.J.A.C. 10:121A-5.6(c)(2), (d); the right to have Defendants ensure that such home study included at least three in-p.erson contacts with Raymond and Vanessa Jackson and at least one in-person contact with all members of the household, at least one visit to the Jackson home, a review of the Jacksons' job references, a review of their personal references, the procurement ofvalious specific categories of information, and completion of background checks regarding criminal records and/or records ofp1ior child abuse or neglect, N.J.A.C. 10:121A5.6(e)-O); the right to have Defendants refrain from placing Plaintiff in the Jackson home for the purpose ofadoption without a properly completed home study, NJ.A.C. 10:121 A-5.6(m); and the right to have Defendants provide post-placement services to PlaintiJf and to Raymond and Vanessa Jackson, including face-to-face communication, to assist with issues relevant to Plaintiffs' adoptio11, to assess the need for counseling, to refer the ad(lptive family to medical,. therapeutic, educational, self-help, or other setvices as needed, to assist !he family to function autonomously, and to assess the family's readiness and suitability for final adoption, N.J.A.C. 10:12JC-5.l.
93. Plaintiff was vested, by virtue of various statutory and regulatory obligations imposed upon Defendants to report any suspected abuse of Plaintiff in order to ensure this ongoing safety and welfare, with certain state-created liberty interest protected by the federal Due Process Clause, including the right to have Defendants report any suspicion that Plaintiff was being subjected to acts of child abuse, N.J.S.A. § 9:6-8.10; NJ.A.C. 10:121A-3.5; the tight
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 25 of 39 PageID: 639
to have Defendants investigate such suspected child abuse, N.J.S.A. ' 30:4C-12; and the right to have Defendants immediately report all instances of suspected child abuse and neglect to the county prosecutor in the county in which Plaintiff resided, N.J.S.A. 9:6-8.36a.
94. Defendants' actions and inactions were inconsistent with the exercise of reasonable professional judgment and amount to deliberate indifference to the procedural due process rights of Plaintiff. Defendants acted with deliberate indifference and callous disregard to repeated indications and signs that the Plaintiff was not receiving adequate care, nourishment, and services while in foster care, and were under-developed. As a result, Plaintiff was deprived of the procedural due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution.
95. Defendants arbitrarily and capriciously deprived Plaintiff of his due process rights in the absence of any countervailing state interest
96. ;E'laintiirs procedural due process rights and stale law entitlements were clearly established at the time oftl1e alleged acts and omissions, and a reasonable individual would have known that the alleged acts and omissions would violate these clearly established rights.
:FOURTH CAUSE 01<' ACTION New Jersey Constitution Substantive Due Process: Special Relationship
(Against all Defendants) 97. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 98. At all times when Defendants had Plaintiff in their foster care custody, Defendants had a special relationship with Plaintiff, which imposed upon Defendants an affinnativo:: duty to care for and protect Plaintiff from harm under the Fourteenth Amo::ndment to the United States Constitution.
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 26 of 39 PageID: 640
99. Defendants breached that duty. Defendants' actions and omissions were a substantial departure from the exercise ofreasonable professional judgment, practice, and standards, and amounted to deliberate indifference to Plaintiffs welfare.
100. Defendants acted with deliberate indifference to and callous disregard of repeated indications and signs that Plaintiff was not receiving adequate care, nourishment, and services while in foster care, and that they were severely under-developed.
101. Defendants failed to ensure the safety and well-being of Plaintiff while he was were in foster care and in the custody of the State, thus proximately causing them substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm.
I02. The actions and inactions that resulted in this harm include but are not limited to: the failure to ensure that PlaintitT received basic necessities while in foster care, including adequate food and nourishment; the failure to ensure that Plaintiff received adequate medical care, treatment, and services while in foster care; the failure to adequately monitor Plaintiffs safety and well-being while he was in foster care; the failure to provide Plaintiff with a safe and appropriate foster care placement; the failure to ensure that Plaintiff did not deteriorate while in state custody; and the failure to adequatelyscreen, approve, license and monitor the Jacksons as suitable foster parents.
103. In addition, the Managerial Does failed to assure the adequate training ofthe Casework Does concerning the provision of adequate care and services to foster children and the adequate screening, approval, licensure, and monitoring of foster homes, and failed to ensure that DYFS policies and procedures were interpreted and implemented in a consistent manner. The Managerial Does were aware for years of the inadequate training and other systemic deficiencies in the State's foster care system that contributed to the ham1 suffered by the Plaintiff but failed to
26
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Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 27 of 39 PageID: 641
take reasonabl() steps to remedy these deficiencies. The failure to adequately train the Casework Does was so obvious, and so obviously likely to result in a constitutional violation, that it amounted to deliberate indifference to Plaintiff's welfare.
I04. In addition, the Supervisory Does failed to adequately supervise the Casework Does with respect to the provision of adequate care and services to foster children and the adequate screening, approval, licensure, and monitoring of foster homes, and failed to ensure that DYFS policies and procedures were interpreted and implemented in a consistent manner. The Supervisory Does were aware for years ofthe inadequate supervision and other systemic deficiencies in the State' s foster care system that conttibuted to the harm suffered by the Plaintiffbut failed to take reasonable steps (o remedy these deficiencies. The Supervisory Does were deliberately indifferent to Plaintiffs welfare by failing to take action that was obviously necessary to prevent or stop the deprivation of Plaintiffs constitutional rights.
105. By virtue of the foregoing, Defendants deprived Plaintiff of various rights protected by the New Jersey State Constitution, Article 1, ~ 1, including but not limited to: the
right to personal security and reasonably safe living conditions; the right to protection from
hann; the right not to be harmed physically, emotionally, developmentally or otherwise; the right to basic life necessities, such as adequate food and nourishment; and the right to adequate
medical care, treatment, and services consistent with the exercise of reasonable professional judgment.
106. Defendants arbitrarily and capriciously deprived Plaintiff of his due process rights in the absence of any countervailing state interest
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107. Plaintiff's substantive due process rights were clearly established constitutional
rights at the time of Defendants' acts and omissions, and a reasonable individual would have
!mown that their acts and omissions would violate these clearly established constitutional rights. FIFTH CAUSE OF ACTION
New Jersey Constitution Substantive Due Process: State-Created Danger (Against all Defendants)
108. Each ofthe foregoing paragraphs is incorporated as iffully set forth herein. 109. 1hc New Jersey State Constitution, Article 1, '1/l, guarantees Plaintiffthc substantive due process right to be free from state-created dangers. II 0. Defendants violated this right by taking afl1m1ative steps to approve Plaintiff Bruce Jackson's adoption in the Jackson home and having the adoption finalized, which placed Plaintiff at inuninent and foreseeable risk of danger and ham1. 111. The physical, emotional, developmental, psychological, and psychiatlic harm that Plaintiff suffered after being adopted by the Jacksons was foreseeable, and directly, and proximately caused by Defendants' unconstitutional acts and omissions. 112. Defendants acted witl1 callous'and willful disregard for Plaintiff's safety by approving Plaintiff Bruce Jackson's adoption by the Jackstms, despite Defendants' !mowledge of repeated indications and signs that Plaintiff was not receiving adequate care, noulislunent, or services from the Jacksons while in foster care, and repeated indications and signs of underdevelopment while in tl1e Jackson home.
113. At the time of Plaintiff's adoption, Defendants and Plaintiffhad a special
relationship, given that Plaintiff was in foster care and in State custody.
J 14. Defendants' exercise ofthei'r authority to pursue and ask the Family Court to
finalize the adoption ofPlaintiffby individuals who had a known history of failing to provide 28
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basic care and nourishment to the children in their care created a risk of danger that would not have otherwise existed if Defendants had adequately screened and monitored the Jacksons as potential adoptive parents or identified an alternative appropriate adoptive placement.
115. Defendants arbitrarily and capriciously deprived Plaintiff of his due process rights in the absence of any countervailing state interest, and caused Plaintiff substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm as a result.
116. Plaintiff's substantive due process rights to be free of state-created dangers were clearly established constitutional rights at the time of Defendants' acts and omissions, and a reasonable individual would have known that their acts and omissions would violate these clearly established constitutional rights.
SIXTH CAUSE OF ACTION N.J.S.A. 9:6B-1 et seq. Violation of Child Placement Bill of Rights Act
(Against all Defendants) 117. Each of fue foregoing paragraphs is incorporated as if fully set forth herein. 118. Under the New Jersey Child Placement Bill of Rights Act, Plaintiff possessed fue Jollowing 1ights while placed outside of his biological home: a right to be free from physical or psychological abuse; a right to receive adequate, safe, and appropriate food, clothing, and housing; a right to receive adequate and appropriate medical care; a right to have regular contact with case workers assigned to his case; a right to receive services of a high quality that are designed to maintain and advance his mental and physical well-being; a right to receive an educational program which maximized his potential; and a right to be free from unwarranted physical restraint and isolation. N.J.S.A. 9:6B-4(h)-(i), (k), (m)-(p). 119. Defendants had a duty to provide Plaintiff services and care to ensure that these statuto1y 1ights were protected.
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120. Defendants violated Plaintiff' statutory rights by failing to meet their duties to the Plaintiffwhile Plaintiff Bruce Jackson was in out-of-home placement, causing substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm to Plaintiff, as well as pain and suffering, anxiety, social disruption, and other grievous harm.
SEVENTH CAUSE OF ACTION N.J.S.A. 30:4C-25 - Failure to Visit
(Against all Defendants) 121. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 122. Under N.J.S.A. 30:4C-25, Defendants had a duty lo regularly visit Plaintiff while he was in foster care to ensure that they were receiving adequate services and care. 123. Defendants breached this duty. 124. As a direct and proximate cause of Defendants' failure to fulfill thest~ duty, Plaintiff sustained substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric barm to Plaintiff, as well as pain and suffering, an.xicty, social disruption, and other grievous harm.
EIGHTH CAUSE OF ACTION Regulations Promulgated Pursuant to Articles 9 and 30 oftbe New Jersey Statutory Code; Failure to Adequately Screen, Approve, and Mo11.itor the
Jackson Home as an Appropriate Foster Home (Against all Defendants)
125. Each of!be foregoing paragraphs is incorporated as if fully set forth herein. 126. Defendants were under various statutory and regulatory obligations to Plaintiffto adequately screen, approve, and monitor the Jackson foster home in order to ensure Plaintiff's safety and welfare. These obligations included but were not limited to: a duty to conduct a detailed home study ofthc Jackson home prior to placing Plaintiff with the Jacksons, N.J.AC.
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EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 31 of 39 PageID: 645
10:122C-2.8(a); a duty to ensure that Raymond and Vanessa Jackson were able to care effectively for Plaintiff as foster parents, N.J.A.C. 10:122C-J.S(a); a duty to ensure that the Jacksons were providing the necessities oflife to their family, N.J.A.C. 10:122C-1.5(i); a duty to ensure that the Jacksons had income or other means of financial support that made them economically independent of Plaintiff's foster care maintenance payments, N.J.A.C. 10:122C1.5(j); a duty to ensure that the Jacksons used all of the money received in the name of Plaintiff to provide for his care, N.J.C.A. 10: 122C-1.5(k); a duty to ensure that the Jacksons had the ability to provide for Plainti IT's basic nutritional, developmental, educational, and health needs, and to provide Raymond and Vanessa Jackson with information on nut:tition and child health needs, N.J.A.C. 10:122C-1.10(a), 10:122B-4.I(b); a duty to ensure that Plaintiff received appropriate and necessary health care while in the custody of Raymond and Vanessa Jackson, and that Plaintiff received medical and dental examinations at least annuai!y, N.J.A.C. 10:122D2.5; a duty to ensure that Vanessa and Raymond Jackson were properly traim:d to fulfill their obligations as foster parents, N.J.A.C. 10: 122D-2.7; a duty to visit the foster home to assess compliance with sleeping space and life safely standards, to interview each household member not participating in pre-service training, and to verify infonnation about each household member, N..T.A.C. 10:122 B-5.3; a duty to obtain medical references for each member ofthe Jackson household, and for each new household member, N.J.A.C. 10:122C-2.3(a), (b); N.J.A.C. 10: 122C-1.5(b); a duty to support the Jacksons in fulfilling their roles with respect to Plaintiffs case goals, N.J.AC. 10: 122B-4.l(h); a duty to conduct annual inspections ofthe foster homes, which shall include interviews with all foster children and other household members, N.J.A.C. 10: 122C-2.8(b), N.J.A.C. I0: l22C-2.9(b); a duty to promplly and thoroughly investigate any complaints or reports questioning Raymond and Vanessa Jackson's compliance with applicable
31
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 32 of 39 PageID: 646
statutes and/or regulations, N.J.A.C. 10: 122C-2.12(a); and a duty to remove Plaintiff from foster care with the Jacksons upon a detem1ination that Plaintiff was not safe in the Jacksons' home, N.J.A.C. l0:122E-2.1; N.J.A.C. 10:122E-2.5.
127. Defendants breached these statutory and regulatory obligations to Plaintiff. 128. As a direct and proximate result of Defendants' failure to fulfill these duties, Plaintiff sustained substantial and unnec~;Jssary physical, emotional, developmental, psychological, and psychiatric hann to Plaintiff, as well as pain and suffering, an.xiety, social disruption, and other grievous harm.
NINTH CAUSE OF ACTION Regulations Promulgated Pursuant to Articles 9 and 30 of the New Jersey Statutory Code; Failure to Adequately Screen and Approve the Jackson Home as an Appropriate Adoptive
Home and to Provide Post-Adoptive Services (Against all Defendants)
129. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 130. Defendants were under various statutory and regulatory obligations to Plaintiffto adequately screen and approve the Jackson home as an appropriate adoptive home for the Plaintiff and to ensure Plaintiff's post-adoption safety and welfare. These obligations included but were not limited to: a duty to select Plaintiffs adoptive home based on an informed, objective judgment, after a full and careful assessment of each factor which could have affected Plaintiffs' ability to benefit physically, socially, and emotionally from the adoptive placement, NJ.A.C. 10: 121C-4.1; a duty to perform a detailed pre-adoptive home study of the Jackson home, including ensuring that Raymond and Vanessa Jackson had the capacity to meet Plaintiff's physical and emotional needs and had disclosed any history or child abuse or neglect or any criminal record, N.J.S.A. 9:3-54.2; N.J.A.C. 10:121C-3.l(b); N.J.A.C. 10:121C-4.2; N.J.A.C. l0:121A-5.7; N.JAC. l0:121A-5.6(c)(2), (d); a duty to ensure that such home study included at
32
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 33 of 39 PageID: 647
least three in-person contacts with Raymond and Vanessa Jackson and at least one in-person contact with all members of the household, at least one visit to the Jackson home, a review of the Jackson's job references, a review of their personal references, the procurement of various specific categories ofinformation, and completion of background checks regarding criminal records and/or records of prior child abuse or neglect, N.J.A.C. 10:121A-5.6(e)-(j); a duty not to place Plaintiff in the Jackson home for the purpose of adoption without a properly completed home study, N.J.A.C. 10: 121A-5.6(m); and a duty to provide post-placement services to Plaintiff and to Raymond and Vanessa Jackson, including face-to-face communication, to assist with issues relevant to Plaintiffs adoption, to assess the need for counseling, to refer the adoptive family to medical, therapeutic, educational, self-help, or other services as needed, to assist the family to function autonomously, and to assess the family's readiness and suitability for final adoption, N.J.A.C. 10:121C-5.1. To pcrfom1 these post-placement services, Defendants had a duty to visit Plaintiff within 14 days of his adoptive placement and on a monthly or bi-monthly basis lor at least six months thereafter. N.J.A.C. 10:121 A-5.8.
131. Defendants breached these statutory and regulatory obligations to Plaintiff. 132. As a direct and proximate result of Defendant's failure to fulfill these duties, Plaintiff sustained substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm, as well as pain and suffering, anxiety, social disruption, and other grievous harm.
TENTH CAUSE OF ACTION Violation of New Jersey Statutory and Regulatory Duties
Duty to Report and Investigate Abuse (Against all Defendants)
133. Each of the foregoing paragraphs is incorporated as if fully set forth herein.
33
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 34 of 39 PageID: 648
134. Defendants were under various statutory and regulatory obligations to Plaintiff to
report any suspected abuse of Plaintiff in order to ensure their ongoing safety and welfare.
135. All Defendants who had any contact with Plaintiff while he was residing with the
Jacksons had cause to believe that Plaintiff had been subjected to child abuse or acts of child
abuse and thus had a duty to immediately report this information. N.J.S.A. § 9:6-8.10; N.J.A.C.
10:121A-3.5. !36. Defendants had a duty to investigate such suspected child abuse. N.J.S.A. 30:4C-
12.
137. DYFS also had a duty to immediately report all instances of suspected child abuse and neglect to the county prosecutor in the county in which Plaintiff resided. N.J.S.A. 9:6-8.36a.
138. Defendants breached these statutory and regulatory obligations to Plaintiff.
139. As a direct and proximate cause of Defendants' failure to fulfill these duties,
Plaintiff sustained substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric ham1, as well as pain and suffering, anxiety, social disruption, and other grievous hann.
ELEVENTH CAUSE OF ACTION New Jersey Tort Claims Act B Negligence
(Against all Defendants) 140. Each ofthe foregoing paragraphs is incorporated as if fully set forth hereiu. 141. Plaintiff has complied with the notice requirements of the Tort Claims Act. N.J.S.A. 59:1-1 et seq. 142. Defendants owed numerous duties to lhe Plaintiff. DYFS and Managerial Does had a duty to train their employees to ensure that any suspected abuse and neglect ofthc Plainti1I
34
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 35 of 39 PageID: 649
b(: recognized, reported and investigated as legally required. DYFS and Supervisory Does had a duty to supervise the Casework Does to assure that they recognize, report and investigate any suspected abuse and neglect of the Plaintiff as legally required. DYFS and Casework Does had a duty to recognize, report and investigate suspected abuse and neglect of the Plaintiff as legally required.
143. Defendants had a general duty to ensure that Plaintiff received adequate
nourishment, care, and services. 144. Defendants also had a duty to screen, approve, license and monitor the Jackson
home to ensure that Plaintiff received reasonable nou1ishment and medical care and remained reasonably safe.
145. Defendants had a duty to take reasonable steps to investigate suspected abuse or
neglect and remove Plaintiff from an abusive and/or neglectful home. 146. By their acts and omissions, Defendants violated the care of duty owed to Plaintiff.
Defendants acted with gross negligence and/or recklessly. Defendants' acts and omissions were outside oftheir scope of employment, and did not involve the mere exercise of professional judgment or discretion.
147. By their acts and omissions, Defendants proximately caused permanent injuries to the Plaintiff, including substantial pbysic;al, emotional, developmental, psychological, and p~ychiatric harm. Defendants' acts and omissions were a material element and/or a substantial factor in bringing the harm about to the Plaintiff. The harm sustained by the Plaintiff was a reasonably foreseeable result of Defendants' acts and omissions.
148. By the foregoing, Defendants are liable for Plaintiffs injuries pursuant to N.J.S.A. 59:1-1 el seq. Defendants are jointly and severally liable for the injuries sustained by Plaintiff.
35
EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 36 of 39 PageID: 650
146. By their acts and omissions, Defendants violated the care of duty owed to Plaintiff. Defendants acted with gross negligence and/or recklessly. Defendants' acts and omissions were outside of their scope of employment, and did not involve the mere exercise of professional judgment or discretion.
147. By their acts and omissions, Defendants proximately caused permanent injuries to
the Plaintiff, including substantial physical, emotional, developmental, psychological, and psychiatric harm. Defendants' acts and omissions were a material element and/or a substantial factor in bringing the han:n about to the Plaintiff. The ham1 sustained by the Plaintiff was a reasonably foreseeable result of Defendants' acts and omissions.
148. By the foregoing, Defendants arc liable for Plaintin's injuries pursuant to N.J.S.A.
59:1-1 ct seq. Def!lndants are jointly and severally liable for the injuries sustained by Plaintiff. TWELFfH CAUSE OF ACTION
Violation of New .Jersey Law Against Discrimination (Against all Defendants)
149. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 150. DYFS is a place of public accommodations under N.J.S.A. 10:5-1 et seq. 151. Plaintiff was perceived and labeled by Defendants as a handicapped individual
(having an "eating disorder," "growth deficiency," and/or "food issues" handicap), within the
meaning of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.
152. Defendants denied Plaintiff basic services in an approved and licensed DYFS foster home, including but not limited to the provision of food and basic medical care, because of his perceived handicaps.
153. By their acts and omissions, Defendants discriminated against Plaintiff on the basis of his perceived handicaps.
36 EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 37 of 39 PageID: 651
154. Defendants acted with wanton recklessness and/or reckless indifference. 155. Defendants' conduct was intentional and motivated by actual malice. 156. Defendants acted in bad faith. 157. Defendants acted with willful indifference and reckless disregard toward the discrimination against Plaintiff. 158. Defendants either approved or acted with willful indifference or reckless disregard to the discrimination against Plaintiff, so as to warrant punitive damages against them. 159. As a result of Defendants' unlawful conduct, Defendants have caused Plaintiffto suffer personal hardships, including substantial and u1111ecessary physical, emotional, developmcntai, psychological, and psychiatric harm, as well as pain and suffering, anxiety, social disruption, and other g:tievous harm.
THIRTEENTH CAUSE O.F ACTION Violation of New Jersey Law Against Discrimination Aiding and Abetting
(Against all lndividnal Defendants) HiO. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 161. DYFS is a place of public accommodations under N.J.S.A. 10:5-1 et seq. 162. The Plaintiff was perceived and labeled by Defendants as a handicapped individual (having an "eating disorder," "growth deficiency," and/or "food issues" handicap), within the meaning of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. 163. Defendants aided and abetted the denial to Plaintiff of basic services in au approved and licensed DYFS foster home, including but not limited to the provision of food and basic medical care, because of their perceived handicaps. 164. By their acts and omissions, Defendants have aided and abetted in the discrimination against Plaintiff on the basis of their perceived handicaps.
37 EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 38 of 39 PageID: 652 174. DYFS placed Plaintiff in the Jackson foster home, caused his adoption in that
home, and were on notice at all times ofthe risk ofhann to Plaintiff. As such, DYFS and the State of New Jersey are vicariously liable for Raymond and Vanessa Jackson' s aforementioned tortious conduct.
RELIEF WHEREFORE, Plaintiff demands judgment be awarded in his favor as follows: 1. An order awarding compensatory dan1ages in an amount to be determined at tdal; 2. An order awarding punitivedamages in an amount to be determined at trial; 3. An order awarding reasonable attorneys' fees; 4. An order awarding prejudgment interest; and 5. An order directing such other and further relief as the Court may deem equitasble and just, including but not limited to appropriate costs and disbursements.
39 EXHIBIT A

Case 1:04-cv-03553-JS Document 38-3 Filed 11/09/05 Page 39 of 39 PageID: 653 JURY DEMAND
Plaintiff hereby demands a trial by jury on all issues raised in the foregoing Complaint.
/
CERTIFICATION PURSUANT TO R.4:5-1
rhereby certify pursuant to R.4:5-!, that the matter in controversy is not the subject of
any other action pending in any court or of a pending arbitration proceeding, nor is any other
DESIGNATION OF TRIAL COUNSEL Pursuant to Rule 4:25-4, Michael Critchley, Esq. is hereby designated as trial counsel.
Dated: October 31, 2005
40 EXHIBIT A

 
 Case 1:04-cv-03553-JS Document 38-2 Filed 11/09/05 Page 1 of 4 PageID: 611

MICHAEL CRITCHLEY, ESQ. (MC-9956)
354 Main Street West Orange, New Jersey 07052 (973) 731-9831 Attorneys for Bruce Jackson

K.J., T.J. and M.J. minors 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 BALASCO-BARR, MICHELE GUHL, CHARLES VENTI, DORIS JONES,: MANAGERIAL DOES 1-10, SUPERVISORY DOES 1-10, and CASEWORKER DOES 1-10,
Defendants.
·--------------

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ~W lfE.§.SEY

~:j~

~..r. ;::~-~

Civil No.: 04-CV-3553

,,...,.\

.... , ,.··~

CERTII<'ICA'flON 0}' MICHAEL CRITCHLEY, ESQ.
MICHAEL CRITCHLEY, ESQ., upon his oath, declares: 1. I am an attorney-at-law of the State of New Jersey and I am the principal of the law fin11 of Michael Clitchley & Associates, attomeys for Bruce Jackson. I make this certification in support of Bruce Jackson's Motion to Intervene in the above-captioned matter.

Case 1:04-cv-03553-JS Document 38-2 Filed 11/09/05 Page 2 of 4 PageID: 612
.\
2. Annexed hereto as Exhibit A is a true and correct copy of a proposed Complaint and Jury Demand setting forth Bruce Jackson's claims against the Division of Youth and Family Services, Department of Human Services, and other defendants arising from the starvation and other abuse that Bmce Jackson was subjected to from the time that Bruce Jackson was placed in the Jackson foster home in December 1991 through the time of his removal from the Jackson residence in October of2003.
3. Atmcxcd hereto as Exhibit B is a tme and correct copy of the Complaint filed by K.J., T.J. and M.J. in the Camden County Superior Court that was subsequently removed by
defendants to the Federal District Court for the District of Camden and given Docket No.: 04CV-3553.
4. The K..l., T.J. and M.J. Complaint and the Bruce Jackson proposed Complaint have collllnon questions of law and fact and arc filed against identical defendants.
5. This office has engaged in extensive settlement negotiations concerning Bruce Jackson's claims against the defendants in both the Bruce Jackson action and the K.J., T.J. and M.J. action.
6. On September 16,2005 this office, on bchalfofBmcc Jackson, entered into a settlement in principle with defendants.
7. After he was removed from the Jackson home, Bruc<:l Jackson was adjudged to be incompetent and was placed und<:lr the care and custody New Jersey Department of Hmnan Services, Division ofDevelopmenta.l Disablitics, Bureau or Guardianship Services. A copy of the Order is annexed as Exhibit C.
8. Accordingly, because Bruce Jackson is incompetent, any settlement must be approved by the Court.

Case 1:04-cv-03553-JS Document 38-2 Filed 11/09/05 Page 3 of 4 PageID: 613
9. The Honorable Joel B. Rosen, U.S.M.J., has scheduled a "Friendly" hearing pursuant to N.J. Court Rule 4:44-3 tor Wednesday, November 16, 2005, to consider the merits of the Bruce Jackson settlement and make a determination as to whether the settlement should be approved.
10. In order to give the Court jurisdiction to approve the settlement entered into on behalf of Bruce Jackson, I have filed this Motion to intervene Pursuant to Fed. R. Civ. Pro. 24(b)(2).
l I. Rule 24(h)(2) provides that anyone may be permitted to intervene in an action when an applicant's claim or defense and the main action have a question in law of fact in common.
12. Here, Bruce Jackson's proposed Complaint and Jury Demand (Exhibit A) and the KJ., T.J. and MJ. Complaint (Exhibit B) share nearly identical claims, common facts and arc filed against identical defendants.
13. Intervention by Bruce Jackson will in no way unduly delay or prejudice the adjudication of the rights of the original parties.
14. Rather, the intervention pursuant to Rule 24 (b)(2) will give the Court jurisdiction to conduct a hearing on November 16, 2005 and approve the Special Needs Trust and Settlement.
J5. James Harris, Esq., attorney for defendants has consented to Bruce Jackson's Motion to intervene, and has no objection to h1tervention and Federal Jurisdiction.
16. Eric Hecker, Esq., counsel for K.J., T..T. and M.J. and their Guardian Ad Litem Marsha Robinson Lowry, also has consented to the motion and has no objection to intervention.

Case 1:04-cv-03553-JS Document 38-2 Filed 11/09/05 Page 4 of 4 PageID: 614

17. Accordingly, for the foregoing reasons, it is respectfully requested that Your

Honor execute the enclosed Order and allow Bruce Jackson to Intervene Pursuant to Rule

24(b)(2).

I certify that the foregoing statements made by me are true to the best of my infom1ation,

knowledge and belief. I am aware that if any ofthe foregoing statements made by me are

/'i.f ·£.u~.A-~ willfully false, I may be subject to punislunent. .· .· ~··; / /~1"·/

f J\: . . . CRITCHLEY, ESQ.

Attorney for Bruce Jackson

(

Dated: November 4, 2005

 
 Case 1:04-cv-03553-JS Document 38-5 Filed 11/09/05 Page 1 of 1 PageID: 706
~ ... "'

PETER C. HARVEY Attorney General of New Jersey Richard J. Hughes Justice Complex P.O. Box 112 Trenton, NJ 08625
By; Sarah G. Crowley, DAG
(609) 633-8197

IN THE MATTER OF Bruce L. Jackson
AN ALLEGED INCOMPETENT

:SUPERIOR COURT OF NEW JERSEY :CHANCERY DIVISION-PROBATE PART
:COUNTY OF CAMDEN :DOCKET NO.CP-195-03

;ORDER

THIS MATTER having come before the Court upon the notice of

motion filed by ?eter C. Harvey, Attorney General of New Jersey,

Sarah G. Crowley, D~puty Attorney General appearing, counsel for

State of New Jersey; on notice to Michael Critchley, counsel for

the l

incompetent,

L. Jackson, and the Court having

considered the moving papers and the Certification of Michael

tchley; and

good cause shown;

l 'l' :CS on this .:? tjf(ctay of

1 2003

ORDERED that the Motion of the Bureau of Guardians Services to be

appointed as guardian of Bruce L. Jackson be and is hereby GRANTED.

kiiYlOcri'-1 U'litM,

£,..,_~ ._

vVIrrr of Th-l. 'Bu...rtt.W oF
Gjuonll'lll)J\uf S.Uv1U.i 15,

Ronald~ 1 ·

Freeman, J. s. c.

\--.Q.rtJ;t-1 Clf~ in t-ea. eLl \)LI.llrd.JM ,
(jVI ct *-mp D'~"r::t.Yl.j b.u ~~ OY u.n-h I

fu..rr'vW orclu Df ThJ.. t_.iSI..L.Vc.

EXHIBIT C

 
 Case 1:04-cv-03553-JS Document 46-1 Filed 11/29/05 Page 1 of 8 PageID: 789
SETTLEMENT AGREEMENT
THIS AGREEMENT is made as ofthe 16th day ofNovember, 2005, by and between
the STATE OF NEW JERSEY (the "State") and WILLIAM M. TAMBUSSI, ESQ.,
Guardian Ad Litem for BRUCE L. JACKSON, whose address is Brown and Connery 360 Haldan Avenue, Westmont, New Jersey 08108 ("Guardian Ad Litem").
WHEREAS, Bruce L. Jackson, an incapacitated person, is represented by Michael Critchley, Esq. and intervened pursuant to an Order dated November 16, 2005, in a legal proceeding initiated by K.J., T.J. and M.J. Jackson venued in the United States District Court, District of New Jersey (Civil No.: 04-CV-3553) against the State, the New Jersey Division of Youth and Family Services, the New Jersey Depa.ttment of Human Services; and other defendants; and
WHEREAS, the Guardian Ad Litem was appointed by the Honorable Joel B. Rosen, U.S.D..T., United States District Court, District of New Jersey, pursuant to an Order dated November 16, 2005, to represent BRUCE L. JACKSON in all matters pertaining to his property, including the execution of this Agreement;
WHEREAS, KlMBERLY R. FRIEND, Chiefofthe Bureau of Guardianship Services, was appointed as the Temporary Guardian of BRUCE L. JACKSON (the "Guardian") pursuant to an Order dated Decemher 24, 2004;
WHEREAS, in an effort to avoid a costly trial, the State and the Guardian Ad Litem desire to amicably resolve the Action;
WHEREAS, lhe parties enter into this Agreement without the admission ofliubility by any patty; and

Case 1:04-cv-03553-JS Document 46-1 Filed 11/29/05 Page 2 of 8 PageID: 790
WHEREAS, the State and the Guardian Ad Litem wish to memorialize the terms of their agreement.
NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, the parties agree as follows:
1. Distribution of Settlement to Trust. In order to compensate Bmce L. Jackson for various personal physical injuries he has suffered, the State shall pay for the benefit ofBruce L. Jackson, a gross cash sum in the amount of$5,000,000.00, the net an1ount (after deducting court approved costs and fees) of which shall be deposited in the BRUCE L. JACKSON SPECIAL NEEDS TRUST DATED November 16, 2005 (the "Tmst"), a copy ofwlrich is attached hereto as Exhibit A.
2. Continuity of Care. Bruce L. Jackson is currently receiving medical care from several physicians and other caregivers for a variety of conditions. 1 Bmce L. Jackson and his Guardian Ad Litem are highly satisfied with the quality ofthe medical care that is currently being provided. It is the intention of all parties that Bmce L. Jackson continue to receive this level of care through Medicaid from the current treating physicians. The parties agree that Medicaid is primarily responsible for providing medical care and services to Bruce L. Jackson. Tf, however, continuation of such quality care is not available under Medicaid for any reason, and the Trustee of the Tmst determines that it is in Bruce's best interest that any and all provisions of care are paid for plivately rather than through the Medicaid progran1, or any other public benefit program, the Tmstce is authorized in its sole and absolute discretion to pay for such needs from the principal and income of the trust and the Trustee shall be held harmless for having made such payments notwithstanding that such services may have been available through the Medicaid
1 In order to maintain the privacy rights of Bruce L. Jackson and the confidentiality of his medical treatment, the identities of the treating physicians and the related conditions that they are treating are being filed with the Court under seal.
2

Case 1:04-cv-03553-JS Document 46-1 Filed 11/29/05 Page 3 of 8 PageID: 791
program or other public benefit program. 3. Existing Medicaid Uens. The State shall waive any and all Medicaid liens and
rights of reimbursement with respect to any and all Medicaid benefits provided to Bruce L. Jackson from the time of his birth up to and including the date of the execution of this Agreement.
4. Attorneys Fees. Michael Critchley, Esq., counsel to Bruce L. Jackson, has agreed to prosecute Bruce L. Jackson's case on a pro bono basis. Therefore, Michael Critchley and his firm, Michael Critchley and Associates, have voluntarily agreed to waive any potential legal fees they may have earned in this case. Michael Critchley, Esq. and Michael Critchley and Associates will be reimbursed for costs incurred in connection with this case. These costs include, but are not limited to, the fee associated with retaining the law firm Mantell & Prince, P.C., to stmcture and prepare this Agreement and the Trust, as well as any necessary ancillary documents.
5. Aporoval Contin~;:ent on Court Approval. The State and the Guardian Ad Litem agree that their willingness to enter into this Agreement is contingent upon the approval of Magistrate Judge Joel B. Rosen, following a hearing conducted in a marmcr akin to a "friendly" hearing conducted pursuant to New Jersey Court Rule 4:44-3, of each and every provision of this Agreement. In the event that Magistrate Judge Joel B. Rosen declines to approve any of the provisions of this Agreement or declines to approve any of the tem1s ofthe trust as set forth in Exhibit A, this entire Agreement shall be null and void.
6. Continuing Jurisdiction; Exclusive Forum. The State and the Guardian Ad Litem agree that the United States District Court for the District of New Jersey (the "DNJ") shall retain jurisdiction over the Action and shall continue to be empowered to compel compliance
3

Case 1:04-cv-03553-JS Document 46-1 Filed 11/29/05 Page 4 of 8 PageID: 792
with the tenns and provisions of this Agreement. The parties agree that the DNJ shall be the sole and exclusive forum for any proceeding to enforce this Agreement and consent to the disposition of any such proceeding by Magistrate Judge Joel B. Rosen. The prevailing party in any proceeding to enforce this Agreement shall be entitled to an award of attorney's fees, litigation expenses, and court costs against the non-prevailing party.
7. Limited Releases. The State and the Guardian Ad Litem agree to execute, simultaneously with the execution of this Agreement, the limited releases attached hereto as Exhibit B.
8. Choice of Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New Jersey as if the Agreement were performed wholly within such State and without regard to its conflict oflaws principles and the venue ofthis matter shall be Camden County, New Jersey.
9. Counsel. By signing this Agreement, the parties acknowledge and agree that: a. they have been afforded a reasonable and sufficient period of time to review
and deliberate on this Agreement;
b. they have consulted with and been represented by counsel of their choice in
connection with this matter, or have declined to retain counsel; c. they have carefully read and understand the tenns of this Agreement, which
they have reviev-ied with their counsel, if any;
d. they have signed this Agreement freely and voluntarily and without duress and coercion and with full knowledge ofits significance and consequences and of the rights relinquished and released hereunder;
e. they will cooperate in carrying out the tenns of this Agreement; and
4

Case 1:04-cv-03553-JS Document 46-1 Filed 11/29/05 Page 5 of 8 PageID: 793

f. the only consideration for signing this Agreement are the terms stated herein, and no other promises, agreements or representations of any kind have been made to induce them to sign this Agreement.
10. Counterparts. This Agreen1ent may be executed in multiple countetparts, each of which shall be deemed an original, but all ofwhich together shall constitute one and the same instrument. lf this Agreement is executed in countetparts, no signatory hereto shall be bound until each of the parties signs the agreement.
I 1. Entire Agreement. This Agreement contains the entire agreement of the parties regarding the subject matter hereof and supersedes all prior agreements, understandings and negotiations regarding the same.
12. Successors and Heirs. This Agreement shall be binding upon the parties and their successors, heirs, assigns, personal representatives and transferees.
13. Waiver. Alteration or Modification. Any waiver, alteration or modification of any of the provisions of this Agreement or cancellation or replacement ofthis Agreement, shall not be valid unless in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
WIT

ATTEST:

BUSSI, ESQ., Guardian Ad Litem for BRUCE L. JACKSO

""'JLU-"'" M. DAVY Commissioner, Department of Human Services
5

Case 1:04-cv-03553-JS Document 46-1 Filed 11/29/05 Page 6 of 8 PageID: 794

f. the only consideration for signing this Agreement are the terms stated herein, and no other promises, agreements or representations of any kind have been made to induce them to sign this Agreement.
10. Counterparts. Tllis Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory hereto shall be bound until each of the parties signs the agreement.
ll. F.ntire Agreement This AgreemeNt contuins the entire agreement of the parties regarding the subject matter hereof and supersedes all prior agreeme11ts, understandings and negotiations regarding the same.
12. Successors and Heirs. 'This Agreement shall be binding upon the parties and their successors, heirs, assigns, personal representatives and transferees.
13. Waiver, Alteration or Modification. Any waiver, altero~tion or modification of any of the provisions of this Agreement or cancellation or replacement of this Agreement, shall not be valid unless in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.

WITNESS:

ATTEST:
r ~ ~4~<4! .

WILLIAM M. TAMBUSSI, ESQ., Guardian Ad Litem for BRUCE L. JACKSO

5

Case 1:04-cv-03553-JS Document 46-1 Filed 11/29/05 Page 7 of 8 PageID: 795

ATTEST:

PETER C. HARVEY ATTORNEY GENERAL OF NEW JERSEY Attorn y for Defendants

6

11/16/200C5ase111:4:084-cv-8053E5.757305-J37S3 Document 46-1 Filed 11/29/05 Page 8 of 8 PageID: P7A9G6E 02/02

f. the only c011sideration tbr signing this Agreement are the tetms stated ht!rein, !llld no other promise$, agl'1:lermeuts or representatiQilS of any kind have been made to itlduee the.m to

10. Countem:artll. This Agreement may be l!Xecuted in multiple counterparts, each of which !lb.all be deemed an original, but all of11vhich to~cr alu.U constitute one and the same instrUJ'Il.ent. If this Agreement is executed in counterparts, no ll.ignatory hereto sba.il be bound ll!ltil ea.ch of the partiCG signs the a!!Ieement.
11. Ebtire AIDement. 1'l:illJ Agreement CQntaim the ~mtire agrcem~nt uf the parties regarding the subj eat matter hereof and ~upersedcs all prior agreements, understandings and negotistio:o.s reg..rding the sw:ne.
12. §gs;ce!!!lon and Heirs. 'this Agreement shall be binding upon the patti" and their SlUleessors, heirs, alllii.gn:s, personal repMentatives and transferees.
13. W!li:u;r. Alteratioo or Modification, Any waiver, alteretion or modifioation ofany of the provisioD!I ofthis Agre¢1Dent or ~llation or replacement of' this Agreement, sballnot be valid unless in writing and signed by the parties hs~eto.
IN WITNESS \VllEREOF, the part:ios have executed this A~t the day and year
fu-st above written
\VlTN.E:SS:

ATTEST;
~ !/'.~··

WILLIAM M. TAMBUSSI, ESQ., Guardian Ad Litem for BRUCE L. JACKSO
Jc~~·
Commissioner, Department of Human Serd~es
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 .,
..- ~

DWYER & DUNNIGAN LLC 17 Academy Street, Suite 1010 Newark, New Jersey 07102 (973) 242-3636 Attorneys for Plaintiffs

~r ;~~l ._--:::------

SUPERIOR COURT OF NEW JERSEY

CAM~E~\j COUNU SUhJ~iOR COURT

CAMDEN COUNTY

~~;~~~~;~~-~~~~~~~~~i~~;~-~~~~~~~-~~-~~~~~-~~-~~;~~:L 00 2 8 9 5 . 04

MARCIA ROBINSON LOWRY,

Docket ~o. _ _ __

Civil Action

Plaintiffs,

- against-

COMPLAINT AND JURY DEMAND

DNISION OF YOUTH AND FAMILY SERVICES, DEPARTMENT OF HUMAN SERVICES, STATE OF NEW JERSEY, PATRICIA BALASCO-BARR, MICHELE GUHL, CHARLES VENTI, DORIS JONES, MANAGERIAL DOES 1-10, SUPERVISORY DOES 1-10, and CASEWORK DOES 1-10,

Defendants.
-------------------------------------------------------------------x

NATURE OF THE ACTION 1. Plaintiffs, minor children K.1., T.1., and M.1. (the "Plaintiffs" or the "minor Jackson brothers"),) by and through their Guardian Ad Litem, Marcia Robinson Lowry,2 and their counsel, Dwyer & Dunnigan LLC, Emery Celli Brinckerhoff & Abady LLP, Eric Thompson and Jeffrey Powell, for their Complaint allege as follows: 2. This is an action to remedy federal and state civil rights violations and tortious
1 Plaintiff children are identified by pseudonym to protect their identities. 2 A Verified Petition to appoint Marcia Robinson Lowry as guardian ad litem to prosecute Plaintiffs' claims has been filed simultaneously with this Complaint by the New Jersey Child Advocate Kevin M. Ryan pursuant to Superior

conduct committed by the State of New Jersey and its employees against the Plaintiffs who were placed by the Division of Youth and Family Services ("DYFS") of the Department of Ruman Services ("DRS") in a home where they were systematically starved. Defendants failed to adequately monitor Plaintiffs' safety and well-being, or provide for their basic needs and treatment while in their care resulting in their maltreatment by the foster and adoptive parents Defendants approved for them.
3. In the early morning hours of October 10, 2003, a resident of Collingswood, New Jersey heard someone rooting through t~e trash outside his home. The resident approached and observed a boy he believed to be less than ten years old. The boy was emaciated. The resident summoned the Collingswood Police Department, which responded to the scene. The boy was subsequently identified as Bruce Jackson, the adopted son of DYFS foster parents Raymond and Vanessa Jackson. Bruce Jackson stood just 4 feet tall and weighed a mere 45 pounds. The responding officers were shocked to learn that Bruce Jackson was 19 years old.
4. When the police entered the Jackson home, they observed three other adopted boys B ages 14, 10 and 9 Ball of whom were extraordinarily small in stature and emaciated in appearance. The 14-year-old boy, PlaintiffKJ., weighed 40 pounds. PlaintiffTJ., age 10, weighed 28 pounds. Plaintiff M.J., who was nine years old, weighed just 23 pounds. Their teeth were rotted, their stomachs were distended,-and the outlines of their ribs and shoulders were readily visible. DYFS removed Plaintiffs from the home later that day.
5. Plaintiffs were admitted to area hospitals, where they spent several weeks being fed B first intravenously, and later with solid food. By February 2004, less than four months after they were removed from the Jackson household, their medical conditions had improved dramatically.

Court Rule 4:26-2(b)(2).

2

K.J, had gained 33 pounds and had grown almost two inches. T.J. had gained 15 pounds and had grown 3 inches. M.J. had gained 21 pounds and had grown over two inches. This remarkable progress was achieved simply by giving the Plaintiffs a proper diet and vitamins; no growth medications were administered.
6. Medical professionals have detennined that the Plaintiffs do not suffer from any inherited medical deficiencies or eating disorders. Rather, these professionals have concluded that Plaintiffs were systematically starved in the Jackson home over a period of many years. On May 5, 2004, Raymond and Vanessa Jackson ~ere indicted on Aggravated Assault and Endangerment charges for "failing to provide proper and sufficient nutrition resulting in severe growth retardation and malnutrition" from the time of placement of Bruce and the minor Jackson brothers in the Jackson foster home as DYFS foster children through October 10,2003.
7. Defendants, who took the Plaintiffs into their custody in 1994, placed them in the· Jackson home in 1995, approved their adoptions in that home in 1997, and continued to use the home as an approved DYFS placement through October 10, 2003, had been on notice for years that the Jacksons were not providing adequate care to the Plaintiffs. Defendants were also on notice that training, supervision and communication at DYFS were inadequate to protect the Plaintiffs from known risks of harm in inappropriate foster homes. As detailed below, from 1994 to October 10, 2003, Defendants acted arid failed to act in reckless disregard and total indifference to the desperate plight of the Plaintiffs, in violation of their federal and state constitutional rights, and numerous state statutory obligations.
8. Defendants failed to ensure that Plaintiffs had their basic needs met during their time in foster care. Defendants failed to ensure that Plaintiffs received adequate nourishment and medical
3

and mental health care while in state custody, and failed to appropriately monitor and approve the Jacksons as a foster and ultimately an adoptive home for the minor Jackson brothers, resulting in significant injury. Defendants also failed to report, investigate and protect Plaintiffs from ongoing maltreatment and starvation in the Jackson home.
THE PARTIES 9. PlaintiffK.J., D.O.R October 11, 1989, is 14 and a half years old. He was taken into DYFS custody in September 1994, and waS adopted by the Jacksons in March 1997. He is currently in DYFS custody and placement. 10. PlaintiffT.J., D.O.R October 14, 1993, is 10 and a half years old. He was taken into DYFS custody in January 1994, and was adopted by the Jacksons in December 1997. He is currently in DYFS custody and placement. 11. PlaintiffM.J., D.O.B. March 26, 1994, is 10 years old. He was taken into DYFS custody in September 1994, and was adopted by the Jacksons in March 1997. He is currently in DYFS custody and placement. 12. Defendant Division of Youth and Family Services is a division ofthe Department of Human Services located at 50 East State Street, P.O. Box 717, Trenton, New Jersey, 08625. 13. Defendant Department of Human Services is a principal department of the Executive Branch of state government located at 222 South Warren Street, P.O. Box 700, Trenton, New Jersey, 08625. 14. Defendant State of New Jersey is the Executive Branch of state government located at the State House, P.O. Box 001, Trenton, New Jersey, 08625. 15. Defendant Patricia Balasco-Barr was the Director of DYFS from 1994 to 1997, and
4

... .. ', ' '.'. ~ .~;,." ' ' ...'
is a Managerial Defendant. She is sued in her personal capacity. Her address is 1001 West Franklin Street, P.O. Box 842027, Richmond, Virginia, 23284.
16. Defendant Michele Guhl was the Director of DYFS from 1997 to 1998, and is a Managerial Defendant. She is sued in her personal capacity. Her address is 50 West State Street, Suite 1012, Trenton, New Jersey, 08608.
17. Defendant Charles Venti was the Director of DYFS from 1998 to 2002, and is a Managerial Defendant. He is sued in his personal capacity. His address is 154 Lake Avenue, Red Bank, New Jersey, 07704.
18. Defendant Doris Jones was the (Acting) Director ofDYFS from 2002 to 2003 and is a Managerial Defendant. She is sued in her personal capacity. Her address is 420 East Pine Street, Lawnside, New Jersey, 08045.
19. Defendant Managerial Does, held managerial positions within DYFS and/or DHS with responsibilities to ensure adequate training and supervision of, and/or communication among DYFS and DHS supervisory and casework staff responsible for the safety and well-being of the Plaintiffs. They are sued in their personal capacities.
20. Defendant Supervisory Does, held supervisory positions within DYFS and/or DHS with responsibilities to supervise the casework staff responsible for the safety and well-being of the Plaintiffs. They are sued in their personal capacities.
21. Defendant Casework Does, held caseworker, investigator, and/or inspector positions within DYFS and/or DHS with responsibilities for the safety and well-being of the Plaintiffs. They are sued in their personal capacities.
5

'f.~," (I!~ "';';" .'..-; . . '.'. ~::.;, :.: .
BACKGROUND
22. The Division of Youth and Family Services is the agency within the Department of Human Services established by the State of New Jersey to investigate reports of suspected child abuse and neglect; provide necessary services to children and families to protect children who are the subject of such reports, including placing children into out-of-home custody; provide proper care to abused and neglected children in state custody; ensure the safety and well-being of such children in state custody; protect such children in state custody from further maltreatment; and secure permanent placements for such children in state custody.
23. If a child is removed from her home and placed' in DYFS custody, her case is assigned to a district office caseworker. A regional DYFS Foster Home Unit is responsible for matching the child to an appropriate placement. The district office from the county where the child was removed or in the county where the child is placed assumes case planning and case management responsibilities over the child and the placement. These responsibilities include making face-to-face and other regular contacts with the foster child and ensuring that the child and foster family are receiving necessary services.
24. Once adoption is identified as a child's case goal, her case is forwarded from the district office to one ofDYFS's several regional Adoption Resource Centers ("ARCs"). An adoption caseworker then takes over case management responsibilities. Regional ARCs are responsible for finalizing adoptions by pursuing termination of parental rights or voluntary surrenders of custody and consents for adoption, and ensuring that the child is placed in an appropriate, safe and nurturing adoptive home.
25. DYFS was responsible for approving or certifyingllicensing foster homes during most of the relevant times at issue through its District Office Foster Home Units, Regional Foster Home Units, and its Bureau of Licensing. This responsibility was transferred to DHS's Office of Licensing ("OOL") in 2003. Annual re-evaluations for DYFS foster homes are required. A regional Institutional Abuse Investigation Unit ("IAIU") is responsible for investigating reports of abuse and
6

neglect in DYFS placements. The responsibility to train DYFS staff was shared at various times by DYFS and DRS.
FACTS 1991-1994 26. ·Defendants approved Vanessa and Raymond Jackson as DYFS foster parents in August 1991. 27. In December 1991, Defendants placed non-party Bruce Jackson ("Bruce") in the Jackson foster home. At that time, Bruce was seven years old, was 48.25 inches tall, and weighed 43.75 pounds. Thereafter, Defendants were repeatedly put on notice that the Jacksons were not meeting Bruce's medical and nutritional needs, but failed to take appropriate remedial steps to ensure that this foster home was safe. 28. In September 1992: for example, DYFS received a call indicating that another foster child in the Jackson household alleged that he and Bruce were being mistreated and that this other foster child was hungry. The caller also stated that the foster child had not grown in height, had only gained half a pound while in the Jacksons' care, and was observed to have thin chest bones. DYFS conducted an investigation, but no medical examinations were conducted, nor did DYFS address the foster child's complaints of hunger in the Jackson home. Defendants did not substantiate the allegations or implement any further monitoring of the home. 29. In February 1993, Vanessa Jackson reported to the caseworker during a home visit that Bruce had been caught taking his classmates' lunches and looking for food in the trash. The caseworker noted that Bruce had compUlsive eating. Bruce was eight and a half years old and weighed 51 pounds.
7

30. In July 1994, when the caseworker transported Bruce to an appointment, Bruce
pleaded to be taken to eat at McDonald's or Dunkin Donuts, but the worker refused. On the ride home, Bruce opened the glove compartment, found half a cookie and ate that, and then pleaded with the caseworker not to tell Mrs. Jackson.
31. In December 1994, the caseworker noted that Bruce was thin for his size and that he stole food at school. The caseworker noted that Bruce had an "eating disorder" and "parasites in his body which [sic] will restrict his growth." There was no medical basis for these conclusions, nor did Defendants follow up to ensure medical or psychological treatment for these identified issues.
32. Defendants continued to approve the Jackson home as a DYFS foster home, but without addressing Bruce's starvation in the home or requiring medical documentation of his medical treatment. Re-evaluations of the home were conducted in 1992 and 1994.
33. Also within this time period, Managerial Defendants closed the DYFS Training Academy and cut back on the training made available to DYFS staff.
1995 34. Despite the Jacksons' known history of not meeting Bruce's nutritional and medical needs over a period of years, Defendants placed all three Plaintiffs one after the other in the Jackson foster home during 1995. Defendants also failed to conduct regular face-to-face visits with the Plaintiffs, or re-evaluate the Jackson foster home. 35. In January 1995, Bruce's doctor contacted the caseworker, informing him that she terminated services due to Mrs. Jackson's failure to comply with her suggestions and inappropriate administration of Bruce's medication. Defendants took no action to investigate and protect Bruce who was starving in the Jackson home. As a result, Defendants proceeded to place Plaintiffs in this
8

unsafe foster home.

T.J. is Placed in the Jackson Foster Home

36. On March 8, 1995, Defendants placed PlaintiffTJ. in the Jackson foster home. He

was one and a half years old, 31.25 inches tall, and weighed 28 pounds, which placed him between

the 25th to 50th percentile for height and between the 75th and 90th percentile for weight for a child

his age.

37. Defendants knew, or should have known, that placing T.J. in the Jackson home placed

:, him at imminent risk ofhann.

"i .:

38. T.J. had entered DYFS custody in January 1994, when he was 3 months old. Born

prematurely and weighing approximately 3.9 pounds at birth, he was placed in a foster home for

medically fragile children. He lived in that home until July 1994, when DYFS no longer classified

him as medically fragile and mov~d him. TJ.'s third and final placement was with the Jacksons.

39. In May 1995, DYFS received a report from Bruce's school after he arrived to school with a bruise on his face. The caller expressed concern that Bruce had failed to gain weight, always appeared hungry, and that Bruce complained that the Jacksons did not give him enough to eat. The caller also advised that Vanessa Jackson had delayed taking Bruce to a medical appointment. DYFS placed the Jackson home on suspension pending the investigation.
40. Bruce told the DYFS investigator that he did not get enough to eat. When questioned, Mrs. Jackson told the investigator that Bruce had stomach problems that required her to control his diet. The investigator did not request a medical examination of Bruce or explore or recommend any further plan of treatment or monitoring as required by reasonable professional judgment. The
9

allegations were apparently not substantiated. 41. Defendants left Bruce and T.J. in the Jackson home where they knew, or should have
known, that they were at imminent risk of further harm, in deliberate indifference to T.J.'s safety and well-being.
42. Both in July and August 1995, a caseworker noted that Bruce appeared underweight. Defendants took no action as a result.
43. An August 1995 medical exam ofT.J. revealed that he weighed 24 pounds, having lost 4 pounds in the 6 months since he was placed with the Jacksons. His weight had dropped from between the 75th to 90th percentile to between the 10th to 25th percentile. Defendants failed to secure medical treatment for T.J. and place him in a foster home that could meet his needs.
M.J. is Placed in Jackson Foster Home 44. On August 30, 199?, PlaintiffM.J. was placed by Defendants in the Jackson foster home. He was one and a half years old, 29 inches tall, and weighed 17.5 pounds, which placed him in less than the 3rd percentile for both height and weight for a child his age. 45. Defendants knew, or should have known, that placing M.J. in the Jackson home placed him at imminent risk of harm. 46. MJ., along with his biological brother K.J., had been taken into DYFS custody in September 1994, when M.1. was 6 months old. After both boys were placed together in a second foster home (not the Jackson home) in October 1994, MJ. lost weight, dropping over a pound and a half to approximately 16.5 pounds in January 1995. In February 1995, the boys' foster mother was noted as alleging that both K.1. and M.1. had "eating disorders." In April 1995, the caseworker noted that M.J. had "an obsession" with food. In June 1995, at a family visit, MJ.'s biological father
10

complained to the District Office Manager that MJ. appeared not to weigh enough. In July 1995, MJ. 's foster mother reported to the caseworker that his behavior was escalating and he would throw a fit for food.
47. From October 1994 on, Defendants failed to place M.J. in therapeutic foster homes that could meet his identified health and nutritional needs, causing him hann.
48. In September 1995, Bruce was not sent to school by the Jacksons. When DYFS . found out the next month that Bruce was not going to school, the Jackspns belatedly advised DYFS that they had begun home-schooling him. DYFS did not question the Jacksons' decision to homeschool Bruce, despite the obvious implication that Vanessa Jackson had removed Bruce from school because the school had made allegations of abuse four months earlier. Bruce was II years old and weighed 48.84 pounds.
49. In October 1995, T.J. was seen for his two-year-old well child exam. He was 31 inches tall and weighed 23 pounds, placing him below the 3rd percentile for both height and weight for a child of his age. He had now lost 5 pounds in the 8 months since he was placed with the Jacksons. Defendants failed to remove T.J. from the home or ensure that he receive appropriate medical treatment. T.1. was not taken to a doctor for another year.
50. That same month, M.J. 's caseworker prepared a transfer memo to a DYFS ARC office, stating, without any medical basis, that M.J. had an "eating disorder," that a physical cause had been ruled out and it was believed that this supposed handicap was psychological. No psychological evaluation was ever provided MJ., nor was he placed in a therapeutic foster home to address his food issues.
51. Also in October, the Jacksons advised the new caseworker that M.J. would stuff food
11

in his mouth, but that they had seen this kind of behavior before with their other foster children. 52. In November 1995, M.J. was seen by a pediatric endocrinologist to evaluate him for
failure to thrive syndrome and rickets. M.J. weighed 18.55 pounds (less than the 3rd percentile) and was 29.9 inches tall. The doctor noted him to be small and thin, but rickets was ruled out. When the doctor suggested that Mrs. Jackson give M.J. whole milk to increase his caloric intake, she refused because it would mean purchasing two types of milk for her family. The doctor also noted that her other suggestions to enroll MJ. in WIC or give him PediaSure were not met with positive responses from Mrs. Jackson.
53. Defendants failed to remove MJ. from the Jackson home or otherwise address Mrs. Jackson's unwillingness to meet his nutritional needs.
K.J. is Placed in the Jackson Foster Home 54. Also in November 1995, PlaintiffK.J. was placed by Defendants in the Jackson foster home. He was almost six years old, weighed 39 pounds and was 43.5 inches tall, placing him in the 25th percentile for height and the 10th to 25th percentile for weight for a child his age. 55. Defendants knew, or should have known, that placing K.J. in the Jackson home placed him at imminent risk of harm. 56. K.J., along with his biological brother M.J., had been taken into DYFS custody in September 1994, when KJ. was one month shy of his fifth birthday. As early as October of 1994, K.J.'s first foster mother reported to the caseworker that he had issues with food. After both boys were placed together in a second foster home (not the Jackson home), the new foster mother reported to the caseworker that KJ. had issues with food in November and December of 1994, as well as in January 1995. In February 1995, the boys' foster mother was noted as alleging that both K.J. and
12

M.J. had "eating disorders." 57. fu April 1995, the caseworker advised K.J. 's biological father during a family visit
- without any medical basis - that K.J. was not supposed to eat large portions due to his supposed "eating disorder." At a family visit in June 1995, K.J.'s biological father complained to the District Office Manager that K.J. did not weigh enough. In July 1995, the caseworker noted that the Foster Home Unit was looking for another home for K.J. and M.J. When both boys were removed from their foster home in August 1995, the caseworker noted that it was partly because of the foster mother's neglect in not registering KJ. for kindergarten so he could be evaluated by a Child Study Team. The caseworker also noted that K.J. had a voracious appetite. He had lost three pounds and only grown a quarter inch since entering DYFS custody a year before.
58. In October 1995, K.J.'s third foster mother reported that K.J. had issues with food. When K.J.'s case was to be transferred that month to a DYFS ARC office, the supervisor noted that KJ.'s issues with food were "not medically/physically related and an additional assessment is needed." The transfer memo prepared by the case",:orker noted, without any medical basis, that "both boys [K.J. and MJ.] have an eating disorder since placement. Though a physical cause has been ruled out, it is believed that its basis is psychological." No psychological evaluation ofKJ. was ever sec;ured.
59. KJ.'s new caseworker's supervisor noted that KJ. had a problem overeating and needed to be moved because he was having difficulty in the foster home in which he had been placed. An immediate referral for therapy to address an eating disorder was noted as necessary. The supervisor recommended placement in a home with few children so that K.1. could benefit from individual attention. The Foster Home Unjt subsequently approved KJ. to be placed in the Jackson
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home, with 8 other children already residing there, including his biological brother M.J. 60. From October 1994 on, Defendants placed K.J. in foster homes that they knew or
should have known did not meet his identified health and nutritional needs, causing him hann. 61. In November 1995, once KJ. was placed with the Jacksons, the independent Child
Placement Review Board ("CPRB") contacted the caseworker and infonned her that its Order would state that KJ. needed a Child Study Team evaluation and that CPRB had a specific counselor in mind to help K.J. with his food and hunger issues. Defendants took no action to secure either an evaluation ofKJ. or therapy.
62. In December 1995, M.J. was admitted to Cooper Hospital due to the results of his lab work that month. Defendants failed to document or inquire as to the cause for MJ. 's hospitalization.
63. A December 1995 DYFS adoption assessment of Bruce noted that the Jacksons had an alarm system in place since 199.2 that denied him access to the kitchen. It was noted that Bruce was surreptitiously finding and eating food at home. Defendants took no actions to have this alarm system removed or investigate whether Bruce and Plaintiffs were being adequately fed.
64. By the end of 1995, Bruce was 11 years old and weighed less than 47 pounds. He had lost almost 10 pounds in the Jackson home since March of that year and his weight had fallen off the low end of any pediatric growth chart. Instead ofpursuing immediate hospitalization for Bruce who was being starved, Defendants processed the Jacksons' application for an adoption subsidy for Bruce.
65. Defendants failed to communicate, report and investigate the known systematic deprivation of food by the Jacksons from Bruce, and the obvious malnourishment and documented failure to thrive of Bruce and Plaintiffs T.J. and MJ. Defendants recklessly left Plaintiffs in the
14

Jackson home even though they knew or should have known of Plaintiffs' ongoing maltreatment by the Jacksons.
1996 66. In 1996, despite further evidence that all three Plaintiffs and Bruce were being starved and continued to deteriorate in the Jackson home, Defendants took no action to protect them in reckless disregard for their health and well-being. Defendants also failed to conduct regular face-toface visits with the Plaintiffs, and re-evaluated the Jackson foster home without interviewing Bruce and the Plaintiffs or reviewing their medical information. Moreovef, Defendants approved Bruce and M.l to be adopted in the Jackson foster home without meeting similar requirements that would have revealed the ongoing maltreatment in the home. 67. In February 1996, Mrs. Jackson reported that Bruce's physician had referred him to an endocrinologist in order to eval;tate whether he had a growth problem. This referral was never acted upon by either the Jacksons or Defendants, and Bruce was never seen by an endocrinologist. From 1996 until October 2003, Bruce received no medical care. The worker also documented in Bruce's record at this time that Bruce's school was concerned that he was not receiving occupational therapy. 68. In March 1996, Mrs. Jackson reported to the caseworker that Bruce had recently gone into a neighbor's trash can looking for food. The worker observed that MJ.'s growth appeared "slow or delayed," but Defendants did not pursue medical treatment for him or ensure that he was being adequately fed. 69. KJ.'s caseworker was on sick leave for three months through April 30, 1996, during which time Defendants did not monitor his care. Defendants failed to assure that KJ.'s case was
15

assigned to a caseworker in the interim. 70. In May 1996, K.J.'s caseworker finally referred him for therapy, at least seven months
after the need had been specifically identified by DYFS. The referral, however, did not indicate that KJ. had issues with food and hunger that needed to be addressed.
71. In June 1996, K.J. had a pre-adoptive medical examination. Defendants did not ensure, however, that his complete medical history was available. Six years and eight months old, he was 44 inches tall and weighed 41 pounds, placing him in the 10th percentile for height and weight for a child his age. He had only grewn by half an inch and two pounds in the 19 months since being placed in the Jackson home. KJ. also started therapy that month, and was approved by DYFS for a higher foster care board rate.
72. Also in June, a therapist who had been seeing Bruce noted in her summary progress report to DYFS that he had climb~d out of a second story window to get access to a neighbor's garbage can. The therapist also noted that Vanessa Jackson informed her that the Jackson family kept their food locked away. Defendants failed to investigate whether Bruce and Plaintiffs were being adequately fed in the Jackson home.
73. That same month, Defendants submitted a final report to the Family Court supporting Bruce's adoption by the Jacksons, falsely stating that "Bruce Jackson's physical, emotional, and social development has been very good since placement in the home. He has an eating disorder, which is being attended to by a specialist."
Bruce is Adopted by the Jacksons 74. Bruce's adoption by Raymond and Vanessa Jackson was finalized, with Defendants' concurrence, on July 8, 1996, at which point the Jacksons began to receive a monthly adoption
16

subsidy. 75. Defendants failed to monitor Bruce immediately post-adoption for at least six months
as required. 76. In August 1996, a caseworker noted that T.1.looked thin. Mrs. Jackson stated that
T.1. had issues with food and that she took him to therapy to address those issues. No further inquiry was made into T.J. 's supposed food issues handicap or his non-existent therapy.
77. That same month, M.1.'s caseworker submitted a foster care board rate increase for M.J.'s care, noting that it appeared that M.1. ,had a growth deficiency that would need to be monitored for years to come.
78. In September 1996, M.1. was seen at the DYFS office for pre-adoption medical examination. Defendants did not ensure, however, that his complete medical history was available. The doctor noted that M.J. had generalized loss of subcutaneous tissue, presented as being significant failure to thrive and having possible stigmata of fetal alcohol syndrome. The doctor advised that follow-up was necessary, and recommended that MJ. be evaluated by an Early Intervention Program. Defendants failed to take any steps to assure that M.J. be evaluated as recommended or to protect him from further deterioration in the Jackson home.
79. Later that same month, the ARC manager signed the Consent for Adoption ofMJ. by the Jacksons, despite overwhelming evidence that M.1. was starving in the Jackson home. Defendants also failed to interview and get medical information for all members of the Jackson household as required, including Bruce and the Plaintiffs who were dramatically deteriorating in the home.
80. The next day, MJ.'s pediatric endocrinologist noted that MJ. had lost weight and
17

appeared emaciated. M.J. weighed 18 pounds and was 31 inches tall. He was referred to a pediatric gastroenterologist. M.J. was not brought to a gastroenterologist, or for his three-month follow-up appointment with his endocrinologist.
81. Also in September, K.J. was seen by a doctor for an updated pre-adoption exam. Defendants did not ensure, however, that his complete medical history was available. He was 45 inches tall and weighed 38 pounds, placing him in the 3rd to 10th percentile for height and below the 3rd percentile for weight for a child his age. He had lost three pounds since his last evaluation three months earlier. The doctor noted.that K.J. presented as an underweight, failure to thrive appearing youngster with possible fetal alcohol syndrome. He referred KJ. for a Child Study Team evaluation. 82. With the exception of one appointment with a dermatologist in 1999, K.J. received no further medical or dental care between September 1996 and his hospitalization in October 2003.
83. Also in September, K.J. 's school contacted his caseworker and notified her that he had already missed 15 days of school. The Jacksons explained that they had not sent him to school because they were waiting for the results of the latest medical evaluation. Defendants did not question this nonsensical excuse.
84. In October 1996, T.J.'s law guardian notified DYFS that it had not complied with a July 1996 court order that"DYFS ensure regular medical treatment for T.J., including an evaluation 'by an orthopedist and a podiatrist.
85. That same month, T.J. had his pre-adoption medical examination. Defendants did not ensure, however, that his complete medical history was available. At that time, he was three years old, 32 inches tall, and weighed 21 pounds, placing him below the 3rd percentile for both
18

height and weight for a child of his age. In the 19 months since he was placed with the Jacksons, TJ. had only grown one inch and lost 7 pounds. The doctor who examined him noted that TJ. was markedly underweight and undersized, and that he presented with "failure-to-thrive syndrome" and possible fetal alcohol syndrome. The doctor recommended that T.J. be evaluated by an orthopedist to rule out rickets.
86. In November 1996, T.J. was seen for his three-year-old well child exam. He weighed about 23.25 pounds. He was diagnosed with speech delay and failure to thrive. The doctor ruled out rickets, ordered lab work, and scheduled another visit for a week 13;ter. He also instructed Vanessa Jackson to keep a diary ofTJ. I s diet for the next week, and to bring the diary to the next visit.
87. When T.J. was seen by the same doctor the next week, Vanessa Jackson did not bring the diet diary with her to this visit,. explaining to the doctor that she had forgotten it. The medical records refleCt that Mrs. Jackson told the doctor that T.J. had lived with her for 6 months, when in fact he had lived with her for 20 months. The doctor noted that T.1. presented with social failure to thrive syndrome, referred him to orthopedics, and scheduled a follow-up visit for one month later. T.1., however, was never returned to that doctor for the scheduled follow-up visit. After one appointment with an orthopedist in March 1997, T.1. received no further medical or dental care until he was hospitalized in October 2003.
88. In December 1996, K.J.'s caseworker completed a six month review of his placement and noted - in violation of reasonable professional judgment and in deliberate indifference to K.1.'s deteriorating health - that he was healthy, when his last medical exam during this period noted that he appeared underweight and failing to thrive.
19

89. Defendants failed to investigate why the Plaintiffs were deteriorating or evaluate the quality of care they were receiving in the Jackson home.
1997 90. In 1997, despite the fact that Bruce and Plaintiffs were being starved in the Jackson home, and Bruce, K.J., and TJ. were no longer receiving any medical care, Defendants approved KJ. and T.J. for adoption by the Jacksons in reckless disregard for their health and well-being. Defendants failed to conduct regular face-to-face visits with the Plaintiffs, and re-evaluated the Jackson foster home without interviewing Bruce and the Plaintiffs or reviewing their medical infonnation. All three Plaintiffs' adoptions in the Jackson home were then finalized upon Defendants' recommendations. 91. In January 1997, K.J.'s therapist submitted her quarterly summary to the caseworker. It reflected that she had advised ]Vl/s. Jackson to have KJ. medically evaluated and to refrain from threatening K.J. with home schooling as a consequence for poor school behavior. Defendants never followed up on either issue. 92. In February 1997, MJ. was seen by his endocrinologist. The doctor noted that M.J. was "dramatically failing to thrive" and that Mrs. Jackson did not seem appropriately concerned. As M.J. had not been taken to a gastroenterologist pursuant to the doctor's previous referral in September 1996, she again referred MJ. for a pediatric GI evaluation. M.J. was never brought back to his endocrinologist again. 93. In March 1997, MJ. 's caseworker submitted to the Family Court a Report for Final Hearing approving his adoption by the Jacksons. The caseworker falsely stated that MJ. was "presently seen by a neurologist, who monitors his small stature. Physicians are more confident that
20

it is related to genetics, given both his parents are ofsmall stature.t> The caseworker also erroneously stated that the Jacksons had been very conscientious in providing medical care for MJ. Omitted from the Report was any mention of the doctors' concerns about M.J.'s failure to thrive, or the pediatric endocrinologist's consternation regarding Vanessa Jackson's inappropriate lack of concern for M.J.' s medical condition.
94. Likewise, the DYFS court report submitted in support of K.J. 's adoption failed to document K.J. 's deterioration in the Jackson home.
95. Prior to approving the adoption of K.J., Defendants failed to interview and obtain medical information for all members ofthe Jackson household as required, including Bruce and the Plaintiffs who were dramatically deteriorating in the horne and no longer receiving any medical care (except minimally for M.J. as detailed below).
KJ and M.J. are Adopted by the Jacksons
96. On March 14,1997, K.J. and M.J.'sadoptions by the Jacksons were finalized with the concurrence of Defendants.
97. Defendants failed to monitor KJ. and M.J. immediately post-adoption for at least six months as required.
98. Later that same month, MJ. was finally seen by a pediatric gastroenterologist. He weighed 20.9 pounds and was 31 inches long. The doctor recommended that MJ. undergo a series of evaluations, including a nutritional evaluation and an upper GI series. He provided Mrs. Jackson with a series of recommendations to increase MJ.'s caloric intake. M.J. was not seen again for any further medical care until his hospitalization in October 2003.
99. A June 1997 DYFS Adoption assessment noted that TJ. presented medically with
21

"failure to thrive syndrome" and that he "may also have fetal alcohol syndrome." Defendants took no action to remove T.J. from the abusive Jackson home or secure medical treatment for him.
100. In August 1997, a casework supervisorreviewed TJ.'s file and signed the Consent for Adoption. Prior to approving the adoption ofT.J., Defendants failed to interview and obtain medical infonnation for all members of the Jackson household as required, including Bruce and the Plaintiffs who were dramatically deteriorating in the home and no longer receiving any medical care.
101. In December 1997, DYFS' s final report to the Family Court supporting TJ.'s . adoption by the Jacksons falsely indicated that T.J. enjoyed general good health and that the Jacksons continued to follow up on his medical and developmental needs. It made no mention of the three diagnoses of failure to thrive or of his severely low height and weight.
T.J. is Adopted by the Jacksons 102. . T.J.'s adoption by ~aymond and Vanessa Jackson was finalized, with Defendants' concurrence, on December 12, 1997. 103. Defendants failed to monitor T.J. immediately post-adoption for at least six months as required.
1998-2003 104. Between 1998 and the October 2003 hospitalization of Bruce, K.J., T.J., and M.J., Defendants continued to use and approve the Jackson home as a foster home and adoptive placement for additional children. Foster child J.1. was adopted by the Jacksons in 2000, and foster child B.P.'s adoption by the Jacksons had been approved by DYFS and was pending in October 2003. 105. As a result, DYFS employees were in the home at least 38 times during these years, and documented seeing all or some of the adopted children, including Plaintiffs, multiple times
22

without taking any action to rescue them from ongoing starvation. 106. Defendants who had contact with Bruce and the Plaintiffs failed to report and
investigate suspected abuse and neglect of the Plaintiffs as required by law. 107. The Jackson home was re-evaluated and approved by DYFS and/or DBS in 1999 and
twice in 2002, despite the Jacksons' documented history of not meeting the medical and basic nutritional needs of children placed in their care by DYFS. Defendants failed to interview household members Bruce and Plaintiffs, nor was their medical information reviewed, as required for continued foster home approval.
CONCLUSION 108. Defendants failed to protect the Plaintiffs due to a decade of repeated acts and omissions at all levels ofDYFS and/or DBS. As a result, Plaintiffs have suffered grievous harm and permanent physical, emotional, deyelopmental, psychological and psychiatric injuries. 109. Managerial Defendants failed to ensure that DYFS and DBS staff was adequately trained and supervised to track and understand information relevant to the screening and approval of the Jackson foster home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Supervisory Defendants failed to adequately supervise DYFS and DBS staff responsible for screening and approving the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Casework Defendants failed to screen and approve the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs.
23

.'"' ; ; ...... l' :". .... , , ' .~... ;~.
110. Managerial Defendants failed to ensure that DYFS staff was adequately trained and supervised to screen and monitor the Jackson foster home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Supervisory Defendants failed to adequately supervise DYFS staff responsible for screening and monitoring the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Casework Defendants failed to adequately screen and monitor the Jackson home in a manner that was consistent with the exercise ofreasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs.
111. Managerial Defendants failed to ensure that DYFS staffwas adequately trained and supervised to conduct required regular face-to-face visits with Plaintiffs in a manner that was consistent with the exercise ofrea~onable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Supervisory Defendants failed to adequately supervise DYFS staff responsible for conducting required regular face-to-face visits with Plaintiffs in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Casework Defendants failed to conduct required regular face-to-face visits with Plaintiffs in a manrierthat was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs.
112. Managerial Defendants failed to ensure that DYFS and DHS staff was adequately trained to report and investigate suspected abuse and neglect in the Jackson home or of Plaintiffs as required by law in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Supervisory Defendants
24

failed to ensure that DYFS and DRS staff report and investigate suspected abuse and neglect in the Jackson home or of Plaintiffs as required by law in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Defendants who had contact with Bruce and the Plaintiffs failed to report and investigate suspected abuse and neglect in the Jackson home or of Plaintiffs as required by law in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs.
113. Managerial Defendants failed to ensure that DYFS staffwas adequately trained and supervised to track, understand, and protect the medical and mental health of Plaintiffs in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk ofharm to Plaintiffs. Supervisory Defendants failed to adequat~ly supervise .DYFS staff responsible for trackinE, understanding, and protecting the medical and mental health of Plaintiffs in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Casework Defendants failed to adequately track, understand, and protect the medical and mental health ofPlaintiffs in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs.
114. Managerial Defendants failed to ensure that DYFS staff was adequately trained and supervised to ensure the regular and necessary medical and mental health treatment of Plaintiffs in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Supervisory Defendants failed to adequately supervise DYFS staff responsible for the regular and necessary medical and mental health treatment of
25

Plaintiffs in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk ofhann to Plaintiffs. Casework Defendants failed to adequately ensure the regular and necessary medical and mental health treatment of Plaintiffs in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of hann to Plaintiffs.
115. Managerial Defendants failed to ensure that DYFS staffwas adequately trained and supervised to avoid the unj~tified labeling of Plaintiffs as handicapped and unlawful discrimination against them as a result. ;Supervisory Defendants failed to adequately supervise DYFS staffto avoid the unjustified labeling ofthe Plaintiffs as handicapped and unlawful discrimination against them as a result. Casework and Supervisory Defendants' unjustified perception and labeling ofMJ. as having an "eating disorder" and "growth deficiency" handicap caused Defendants to discriminate against him by failing to address his physical deterioration and failure to grow while in a DYFS foster home. Casework and Supervisory Defendants' unjustified perception and labeling ofKJ. as having an "eating disorder" handicap caused Defendants to discriminate against him by failing to address his physical deterioration and failure to grow while in a DYFS foster home. Casework and Supervisory Defendants' unjustified perception and labeling of T.J. as having a "food issues" handicap caused Defendants to discriminate against him by failing to address his physical deterioration and failure to grow in a DYFS foster home.
116. The Managerial Defendants failed to ensure that DYFS staff shared, reported and investigated evidence of abuse and neglect of foster children in the Jackson home managed by different caseworkers in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk ofhann to Plaintiffs. Supervisory Defendants
26

failed to adequately supervise DYFS stafi'to ensure that evidence of abuse and neglect ofthe foster children in the Jackson home was shared, reported and investigated in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Casework Defendants failed to share, report or investigate evidence of abuse and neglect of the foster children in the Jackson home in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs.
117. Managerial Defendants failed to ensure that DYFS staff was adequately trained and supervised to ensure that ~ required pre-adoption protections were understood and met before approving the Plaintiffs' adoptions in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk ofharm to Plaintiffs. Supervisory Defendants failed to ensure that all the necessary requirements to protect Plaintiffs had been met before their adoptions in the Jackson home were approved in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indiffererice to the risk of harm to Plaintiffs. Casework Defendants failed to interview and obtain medical information for all members of the Jackson household as required before the Plaintiffs' adoptions were approved in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs.
118. Managerial Defendants failed to ensure that DYFS staff was adequately trained and supervised to ensure the required monitoring of Plaintiffs immediately post-adoption in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Supervisory Defendants failed to adequately supervise DYFS staff responsible for the required monitoring of Plaintiffs in the Jackson home immediately
27

post-adoption in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs. Casework Defendants failed to adequately monitor Plaintiffs in the Jackson home immediately post-adoption consistent with professional judgment in a manner that was consistent with the exercise of reasonable professional judgment, and in deliberate indifference to the risk of harm to Plaintiffs.
FIRST CAUSE OF ACTION 42 U.S.c. § 1983 B Substantive Due Process: Special Relationship (Against the Managerial Does, the Supervisory Does, and the Casework Does, in their
personal capacities) 119. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 120. At all times when Defendants had Plaintiffs in their foster care custody, Defendants had a special relationship with Plaintiffs which imposed upon Defendants an affirmative duty to care for and protect Plaintiffs from hann under the Fourteenth Amendment to the United States Constitution. 121. Defendants breached that duty. Defendants' actions and omissions were a substantial departure from the exercise of reasonable professional judgment, practice, and standards, and amounted to deliberate indifference to Plaintiffs' welfare. 122. Defendants acted with deliberate indifference to and callous disregard of repeated indications and signs that. Plaintiffs were not receiving adequate care, nourishment, and services while in foster care, and that they were severely under-developed. 123. Defendants failed to ensure the safety and well-being of Plaintiffs while they were in foster care and in the custody of the State, thus proximately causing them substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm. 124. The actions and inactions that resulted in this harm include but are not limited to: the
28

.,....... ',.,.....
failure to ensure that Plaintiffs received basic necessities while in foster care, including adequate food and nourislunent; the failure to ensure that Plaintiffs received adequate medical care, treatment, and services while in foster care; the failure to adequately monitor Plaintiffs' s.afety and well-being while the children were in foster care; the failure to provide Plaintiffs with a safe and appropriate foster care placement; and the· failure to adequately screen, approve, license and monitor the Jacksons as suitable foster parents.
125. In addition, the Managerial Does failed to assure the adequate training of the Supervisory and Casework Does conceming the provision of adequate care and services to foster children and the adequate screening, approval, licensure, and monitoring of foster homes, and failed to ensure that DYFS policies and procedures were interpreted and implemented in a consistent manner. The Managerial Does were aware for years of the inadequate training and other systemic deficiencies in the State's foster care system that contributed to the harm suffered by the Plaintiffs but failed to take reasonable steps to remedy these deficiencies. The failure to adequately train the Supervisory and Casework Does was so obvious, and so obviously likely to result in a constitutional violation, that it amounted to deliberate indifference to Plaintiffs' welfare. The failure to provide adequate training to the Supervisory and Casework Does directly resulted in the harms suffered by Plaintiffs.
126. In addition~ the Supervisory Does failed to adequately supervise the Casework Does with respect to the provision of adequate care and services to foster children and the adequate screening, approval, licensure, and monitoring of foster homes, and failed to ensure that DYFS policies and procedures were interpreted and implemented in a consistent manner. The Supervisory Does were aware for years of the inadequate supervision and other systemic deficiencies in the
29

State's foster care system that contributed to the harm suffered by the Plaintiffs but failed to take reasonable steps to remedy these deficiencies. The Supervisory Does were deliberately indifferent to Plaintiffs' welfare by failing to take action that was obviously necessary to prevent or stop the deprivation of Plaintiffs' constitutional rights. The failure to adequate supervision to the Casework Does directly resulted in the hanns suffered by Plaintiffs.
127. By virtue of the foregoing, Defendants deprived Plaintiffs of various rights protected by the Due Process Clause ofthe Fourteenth Amendment, including but not limited to: the right to personal security and reasonably safe living conditions; the right to protection from hann; the right not to be hanned physically, emotionally, developmentally or otherwise; the right to basic life necessities, such as adequate food and nourishment; the right not to deteriorate in state custody; and the right to adequate medical care, treatment, and services consistent with the exercise ofreasonable professional judgment.
128. Defendants arbitrarily and capriciously deprived Plaintiffs of their due process rights in the absence of any countervailing state interest.
129. Plaintiffs' substantive due process rights were clearly established constitutional rights at the time of Defendants' acts and omissions, and a reasonable individual would have known that their acts and omissions would violate these clearly established constitutional rights.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 B Substantive Due Process: State-Created Danger (Against the Managerial Does, the Supervisory Does, and the Casework Does in their
personal capacities) 130. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 131. The Fourteenth Amendment to the United States Constitution guarantees Plaintiffs
30

the substantive due process right to be free from state-created dangers. 132. Defendants violated this right by taking affirmative steps to approve the minor
Jackson brothers' adoptions in the Jackson home and having those adoptions finalized, which placed the children at imminent and foreseeable risk of danger and harm.
133. The physical, emotional, developmental, psychological, and psychiatric hann that Plaintiffs suffered after being adopted by the Jacksons was foreseeable, and directly, and proximately caused by Defendants' unconstitutional acts and omissions.
134. Defendants acted with call<;>us and willful disregard for Plaintiffs' safety by approving the minor Jackson brothers' adoptions by the Jacksons, despite Defendants' knowledge of repeated indications and signs that Plaintiffs were not receiving adequate care, nourishment, or services from the Jacksons while in foster care, and repeated indications and signs of their under-development while in the Jackson home.
135. At the time of Plaintiffs' adoptions, Defendants and Plaintiffs had a special relationship, given that Plaintiffs were in foster care and in State custody.
136. Defendants' exercise of their authority to pursue and ask the Family Court to finalize the adoption of Plaintiffs by individuals who had a known history of failing to provide basic care and nourishment to the children created a risk of danger that would not have otherwise existed if Defendants had adequately screened and monitored the Jacksons as potential adoptive parents or identified an alternative appropriate adoptive placement.
137. Defendants arbitrarily and capriciously deprived Plaintiffs of their due process rights in the absence of any countervailing state interest.
138. Plaintiffs' substantive due process rights to be free from state-created dangers were
31

clearly established constitutional rights at the time of Defendants' acts and omissions, and a reasonable individual would have known that their acts and omissions would violate these clearly established constitutional rights.
THIRD CAUSE OF ACTION 42 U.S.c. § 1983 Procedural Due Process (Against the Managerial Does, the Supervisory Does, and the Casework Does in their
personal capacities) 139. Each and every allegation of the Complaint is incorporated herein as iffuUy set forth. 140. The foregoing actions and inactions of Defendants resulted in Plaintiffs being deprived of constitutionally protected liberty interests without due process of law, which was a substantial factor leading to, and proximate cause of, the physical, emotional, developmental, psychological, and psychiatric harm Plaintiffs have suffered. 141. Plaintiffs were vested, by virtue of the New Jersey Child Placement Bill of Rights Act, with certain state-created liberty interests protected by the federal Due Process Clause, including the right to be free from physical or psychological abuse; the right to receive adequate, safe, and appropriate food, clothing, and housing; the right to receive adequate and appropriate medical care; the right to have regular contact with case workers assigned to their case; the right to receive services of a high quality that are designed to maintain and advance their mental and physical well-being; the right to receive an educational program which maximized their potential; and the right to be free from unwarranted physical restraint and isolation. NJ.S.A. 9:6B-4(h)-(i), (k), (m)-(p). 142. Plaintiffs were vested, by virtue ofNJ.S.A. 1 30:4C-25, with certain state-created liberty interest protected by the federal Due Process Clause, including the right to regular visits from Defendants while Plaintiffs were in foster care to ensure that they were receiving adequate services and care.
32

, .'," :7'"",' .~, IfI ~~\"":.,,, •
•
143. Plaintiffs were vested, by virtue of various statutory and regulatory obligations imposed upon Defendants to adequately screen, approve, and monitor Plaintiffs' foster homes, with certain state-created liberty interest protected by the federal Due Process Clause, including the right to a detailed home study of the Jackson home prior to Plaintiffs' placement there, N.J.A.C. 10:122C2.8(a); a right to have Defendants ensure that Raymond and Vanessa Jackson were able to care effectively for Plaintiffs as foster parents, N.J.A.c. 1O:122C-1.5(a); a right to have Defendants ensure that the Jacksons were providing the necessities ofHfe to their family, N.J.A.C. IO:122C1.5(i); a right to have Defendants ensure that the Jacksons had· income or other means of financial support that made them economically independent of Plaintiffs' foster care maintenance payments, N.J.A.C. 10: 122C-I.5(j); a right to have Defendants ensure that the Jacksons used all ofthe money received in the name of each Plaintiff to provide for that child's care, NJ.C.A. 1O:122C-1.5(k); a right to have Defendants ensure that the Jacksons had the ability to provide for Plaintiffs' basic nutritional, developmental, educational, and health needs, and to provide Raymond and Vanessa Jackson with information on nutrition and child health needs, N.J.A.C. IO:122C-l.IO(a), lO:122B4~ 1(b); a right to have Defendants ensure that Plaintiffs received appropriate and necessary health care while in the custody ofRaymond and Vanessa Jackson, and that Plaintiffs received medica1 and dental examinations at least annually, N.1.A.C. IO:122D-2.5; a right to have Defendants ensure that Vanessa and Raymond Jackson were properly trained to fulfill their obligations as foster parents, N.J.A.C. 10: 122D-2.7; a right to have Defendants visit the foster home to assess compliance with sleeping space and life safety standards, to interview each household member not participating in pre-service training, and to verify information about each household member, NJ.A.C. 1O:122B5.3; a right to have Defendants obtain medical references for each member of the Jackson
33

.
•
household, and for each new household member, N.lA.C. lO:122C-2.3(a), (b); N.J.A.C. lO:122C1.5(b); a right to have Defendants support the Jacksons in fulfilling their roles with respect to Plaintiffs' case goals, N.J.A.C. 10: 122B-4.l(h); a right to have Defendants conduct annual inspections of the foster homes, which shall include interviews with all foster children and other household members, NJ.A.C. 10:122C-2.8(b), NJ.A.C. 10: 122C-2.9(b); aright to have Defendants promptly and thoroughly investigate any complaints or reports questioning Raymond and Vanessa Jackson's compliance with applicable statutes and/or regulations, N.J.A.C. 10:122C-2.12(a); and a right to have Defendants ensure remov~ Plaintiffs from foster care with the Jacksons upon a determination that Plaintiffs were not safe in the Jacksons' home, N.J.A.C. 10:122E-2.1; N.J.A.C. 10: 122E-2.5.
144. Plaintiffs were vested, by virtue of various statutory and regulatory obligations imposed upon Defendants to adequately screen and approve the Jackson home as an appropriate adoptive home for the Plaintiffs and to ensure Plaintiffs' post-adoption ·safety and welfare, with certain state-created liberty interest protected by the federal Due Process Clause, including the right to have Defendants select Plaintiffs' adoptive home based on an informed, objective judgment, after a full and careful assessment of each factor which could have affected Plaintiffs' ability to benefit physically, socially, and emotionally from the adoptive placement, N.J.A.C. 10: 121 C-4.1; the right to have Defendants perform a detailed pre-adoptive home study of the Jackson home, including ensuring that Raymond and Vanessa Jackson had the capacity to meet Plaintiffs' physical and emotional needs and had disclosed any history or child abuse or neglect or any criminal record, NJ.S.A. 9:3-54.2; NJ.A.C. lO:121C-3.1(b); N.lA.C. 10:121C-4.2; NJ.A.C. lO:121A-5.7; NJ.A.C. lO:121A-5.6(c)(2), (d); the right to have Defendants ensure that such home study included at least
34

three in-person contacts with Raymond and Vanessa Jackson and at least one in-person contact with all members of the household, at least one visit to the Jackson home, a review of the Jacksons' job references, a review of their personal references, the procurement of various specific categories of infonnation, and completion of background checks regarding criminal records and/or records ofprior child abuse or neglect, N.J.A.C. 1O:121A-5.6(e)-(j); the right to have Defendants refrain from placing Plaintiffs in the Jackson home for the purpose of adoption without.a properly completed home study, N.J.A.C. 1O:121A-S.6(m); and the right to have Defendants provide post-placement services to Plaintiffs and to Raymond and. Vanessa Jackson, including face-to-face communication, to assist with issues relevant to Plaintiffs' adoption, to assess the need for counseling, to refer the adoptive family to medical, therapeutic, educational, self-help, or other services as needed, to assist the family to function autonomously, and to assess the family's readiness and suitability for final adoption, N.J.A.C.IO:121C-S.1.
145. Plaintiffs were vested, by virtue of various statutory and regulatory obligations imposed upon Defendants to report any suspected abuse ofPlaintiffs in order to ensure their ongoing safety and welfare, with certain state-created liberty interest protected by the federal Due Process Clause, including the right to have Defendants report any suspicion that Plaintiffs were being subjected to acts of child abuse, NJ.S.A. § 9:6-8.10; NJ.A.C. 1O:121A-3.S; the right to have Defendants investigate such suspected child abuse, NJ.S.A. I 30:4C-12; and the right to have Defendants immediately report all instances of suspected child abuse and neglect to the county prosecutor in the county in which Plaintiffs resided, NJ.S.A. 9:6-8.36a.
146. Defendants' actions and inactions were inconsistent with the exercise of reasonable professional judgment and amount to deliberate indifference to the procedural due process rights of
35

r ""• •
Plaintiffs. Defendants acted with deliberate indifference and callous disregard to repeated indications and signs that the Plaintiffs were not receiving adequate care, nourislunent, and services while in foster care, and were under-developed. As a result, Plaintiffs were deprived of the procedural due proc~ss rights conferred upon them by the Fourteenth Amendment to the United States Constitution.
147. Defendants arbitrarily and capriciously deprived Plaintiffs of their due process rights in the absence of any countervailing state interest.
148. Plaintiffs' procedural dut< process rights and state law entitlements were clearly established at the time of the alleged acts and omissions, and a reasonable individual would have known that the alleged acts and omissions would violate these clearly established rights.
FOURTH CAUSE OF ACTION New Jersey Constitution Substantive Due Process: Special Relationship
. (Against all Defendants) 149. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 150. At all times when Defendants had Plaintiffs in their foster care custody, Defendants had a special relationship with Plaintiffs, which imposed upon Defendants an affirmative duty to care for and protect Plaintiffs from harm under the Fourteenth Amendment to the United States Constitution. 151. Defendants breached that duty. Defendants' actions and omissions were a substantial departure from the exercise of reasonable professional judgment, practice, and standards, and amounted to deliberate indifference to Plaintiffs' welfare. 152. Defendants acted with deliberate indifference to and callous disregard ofrepeated indications and signs that Plaintiffs were not receiving adequate care, nourishment, and services
36

...... '.' ';:.~" -...,...
while in foster care, and that they were severely under-developed. 153. Defendants failed to ensure the safety and well-being of Plaintiffs while they were
in foster care and in the custody of the State, thus proximately causing them substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm.
154. The actions and inactions that resulted in this harm include but are not limited to: the
o
failure to ensure that Plaintiffs received basic necessities while in foster care, including adequate food and nourishment; the failure to ensure that Plaintiffs received adequate medical care, treatment, and services while in foster care; the failll:re to adequately monitor Plaintiffs' safety and well-being while the children were in foster care; the failure to provide Plaintiffs with a safe and appropriate foster care placement; the failure to ensure that Plaintiffs did not deteriorate while in state custody; and the failure to adequately screen, approve, license and monitor the Jacksons as suitable foster parents.
155. In addition, the Managerial Does failed to assure the adequate training of the Casework Does concerning the provision of adequate care and services to foster children and the adequate screening, approval, licensure, and monitoring of foster homes, and failed to ensure that DYFS policies and procedures were interpreted and implemented in a consistent manner. The Managerial Does were aware for years of the inadequate training and other systemic deficiencies in the State's foster care system that conotributed to the harm suffered by the Plaintiffs but failed to. take reasonable steps to remedy these deficiencies. The failure to adequately train the Casework Does was so obvious, and so obviously likely to result in a constitutional violation, that it amounted to deliberate indifference to Plaintiffs' welfare.
156. In addition, the Supervisory Does failed to adequately supervise the Casework Does
37

with respect to the provision of adequate care and services to foster children and the adequate screening, approval, licensure, and monitoring of foster homes, and failed to ensure that DYFS policies and procedures were interpreted and implemented in a consistent manner. The Supervisory Does were aware for years of the inadequate supervision and other systemic deficiencies in the State's foster care system that contributed to the hann suffered by the Plaintiffs but failed to take reasonable steps to remedy these deficiencies. The Supervisory Does were deliberately indifferent to Plaintiffs' welfare by failing to take action that was obviously necessary to prevent or stop the deprivation of Plaintiffs' constitutional ~ghts.
157. By virtue ofthe foregoing, Defendants deprived Plaintiffs of various rights protected by the New Jersey State Constitution, Article 1, , 1, including but not limited to: the right to personal security and reasonably safe living conditions; the right to protection from harm; the right not to be harmed physically, emotionally, developmentally or otherwise; the right to basic life necessities, such as adequate food and nourishment; and the right to· adequate medical care, treatment, and services consistent with the exercise of reasonable professional judgment.
158. Defendants arbitrarily and capriciously deprived Plaintiffs of their due process rights in the absence of any countervailing state interest.
159. Plaintiffs' substantive due process rights were clearly established constitutional rights at the time of Defendants , acts and omissions, and a reasonable individual would have known that their acts and omissions would violate these clearly established constitutional rights.
FIFfH CAUSE OF ACTION New Jersey Constitution Substantive Due Process: State-Created Danger
(Against all Defendants) 160. Each of the foregoing paragraphs is incorporated as if fully set forth herein.
38

161. The New Jersey State Constitution, Article 1, ~ 1, guarantees Plaintiffs the substantive due process right to be free from state-created dangers.
162. Defendants violated this right by taking affinnative steps t~ approve the minor Jackson brothers' adoptions in the Jackson home and having those adoptions finalized, which placed the children at imminent and foreseeable risk of danger and harm.
163. The physical, emotional, developmental, psychological, and psychiatric hann that Plaintiffs suffered after being adopted by the Jacksons was foreseeable, and directly, and proximately caused by Defendants' unconstitutional ~cts and omissions.
164. Defendants acted with callous and willful disregard for Plaintiffs' safety by approving the minor Jackson brothers' adoptions by the Jacksons, despite Defendants' knowledge of repeated indications and signs that Plaintiffs were not receiving adequate care, nourishment, or services from the Jacksons while in foster care, and repeated indications and signs of their under-development while in the Jackson home.
165. At the time of Plaintiffs' adoptions, Defendants and Plaintiffs had a special relationship, given that Plaintiffs were in foster care and in State custody.
166. Defendants' exercise of their authority to pursue and ask the Family Court to finalize the adoption of Plaintiffs by individuals who had a known history offailing to provide basic care and nourishment to the children created a risk of danger that would not have otherwise existed if Defendants had adequately screened and monitored the Jacksons as potential adoptive parents or identified an alternative appropriate adoptive placement.
167. Defendants arbitrarily and capriciously deprived Plaintiffs of their due process rights in the absence of any countervailing state interest, and caused Plaintiffs substantial and unnecessary
39

physical, emotional, developmental, psychological, and psychiatric hann as a result. 168. Plaintiffs' substantive due process rights to be free of state-created dangers were
clearly established constitutional rights at the time of Defendants' acts and omissions, and a reasonable individual would have known that their acts and omissions would violate these clearly established constitutional rights.
SIXTH CAUSE OF ACTION N.J.S.A. 9:6B-l et seq. Violation of Child Placement Bill of Rights Act
(Against all Defendants) 169. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 170. Under the New Jersey Child Placement Bill of Rights Act, Plaintiffs possessed the following rights while placed outside of their biological home: a right to be free from physical or psychological abuse; a right to receive adequate, safe, and appropriate food, clothing; and housing; a right to receive adequate and aPl?ropriate medical care; a right to have regular contact with case workers assigned to their case; a right to receive services of a high quality that are designed to maintain and advance their mental and physical well-being; a right to receive an educational program which maximized their potential; and a right to be free from unwarranted physical restraint and isolation. N.J.S.A. 9:6B-4(h)-(i), (k), (m)-(p): . 171. Defendants had a duty to provide Plaintiffs services and care to ensure that these statutory rights were protected. 172. Defendants violated Plaintiffs' statutory rights by failing to meet their duties to the Plaintiffs while the children were in out-of-home placement, causing substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm to Plaintiffs, as well as pain and suffering, anxiety, social disruption, and other grievous harm.
40

SEVENTH CAUSE OF ACTION N.J.S.A. 30:4C-25 B Failure to Visit
(Against all Defendants)
173. Each of the foregoing paragraphs is incorporated as if fully set forth herein.
174. Under NJ.S.A. I 30:4C-25, Defendants had a duty to regularly visit Plaintiffs while
they were in foster care to ensure that they were receiving adequate services and care.
175. Defendants breached this duty. 176. As a direct and proximate cause ofDefendcmts' failure to fu~fill these duty, Plaintiffs
sustained substantial and unnecessary physical, emotional, developmental, psychological, and
psychiatric harm to Plaintiffs, as well as pain and suffering, anxiety, social disruption, and other
grievous harm.
EIGHTH CAUSE OF ACTION . Regulations Promulgated Pursuant to Articles 9 and 30 of the New Jersey Statutory Code: Failure to Adequately Screen, Approve, and Monitor the Jackson Home as an Appropriate
Foster Home (Against all Defendants) 177. Each of the foregoing paragraphs is incorporated as if fully set forth herein.
178. Defendants were under various statutory and regulatory obligations to Plaintiffs to
adequately screen, approve, and monitor the Jackson foster home in order to ensure Plaintiffs' safety
and welfare. These obligations included but were not limited to: a duty to conduct a detailed home
study of the Jackson home prior to placing Plaintiffs with the Jacksons, N.1.A.C. 1O:122C-2.8(a);
a duty to ensure that Raymond and Vanessa Jackson were able to care effectively for Plaintiffs as
foster parents, NJ.A.C. 10:122C-1.5(a); a duty to ensure that the Jacksons were providing the
necessities of life to their family, NJ .A.c. 10: 122C-1.5(i); a duty to ensure that the Jacksons had
income or other means of financial support that made them economically independent of Plaintiffs' 41

foster care maintenance payments, NJ.A.C. 1O:122C-1.5(j); a duty to ensure that the Jacksons used all of the money received in the name of each Plaintiff to provide for that child's care, N.J.C.A. 10:122C-I.5(k); a duty to ensure that the Jacksons had the ability to provid~ for Plaintiffs' basic nutritional, developmental, educational, and health needs, and to provide Raymond and Vanessa Jackson with information on nutrition and child health needs, NJ.A.C. 1O:122C-1.1O(a), 10:122B4.1(b); a duty to ensure that Plaintiffs received appropriate and necessary health care while in the custody of Raymond and Vanessa Jackson, and that Plaintiffs received medical and dental examinations at least annually, N.J.A.C. .10:122D-2.5; a duty to ensure that Vanessa and Raymond Jackson were properly trained to fulfill their obligations as foster parents, N.J.A.C. 10: 122D-2.7; a duty to visit the foster home to assess compliance with sleeping space and life safety standards, to interview each household member not participating in pre-service training, and to verify information about each household member, N.J.A.C. 10: 122B-5.3; a duty to obtain medical references for each member of the Jackson household, and for each new household member, NJ.A.C. 1O:122C-2.3(a), (b); N.J.A.C. 10: 122C-1.5(b); a duty to support the Jacksons in fulfilling their roles with respect to Plaintiffs' case goals, N.J.A.C. 1O:122B-4.1(h); a duty to conduct annual inspections of the foster homes, which shall include interviews with all foster children and other household members, N.I.A.C. 10: 122C-2.8(b), N.J.A.C. 1O:122C-2.9(b); a duty to promptly and thoroughly investigate any complaints or reports -questioning Raymond and Vanessa Jackson's compliance with applicable statutes and/or regulations, NJ.A.C. 10: 122C-2_12(a); and a duty to remove Plaintiffs from foster care with the Jacksons upon a determination that Plaintiffs were not safe in the Jacksons' home, NJ.A.C. 10:122E-2.1; N_J.A.C. 10:122E-2.5.
179. Defendants breached these statutory and regulatory obligations to Plaintiffs.
42

.. , ....
180. As a direct and proximate result ofDefendants' failure to fulfill these duties, Plaintiffs sustained substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm to Plaintiffs, as well as pain and suffering, anxiety, social disruption, and other grievous harm.
NINTH CAUSE OF ACTION Regulations Promulgated Pursuant to Articles 9 and 30 of the New Jersey Statutory Code: Failure to Adequately Screen and Approve the Jackson Home as an Appropriate Adoptive
Home and to Provide Post-Adoptive Services (Against all Defendants)
181. , Each of the foregoing paragraphs is incorporated as if ful1y set forth herein.. 182. Defendants were under various statutory and regulatory obligations to Plaintiffs to adequately screen and approve the Jackson home as an appropriate adoptive home for the Plaintiffs and to ensure Plaintiffs' post-adoption safety and welfare. These obligations included but were not limited to: a duty to select Plaintiffs' adoptive home based on an informed, objective judgment, after a full and careful assessment of each iactor which could have affected Plaintiffs' ability to benefit physically, socially, and emotionally from the adoptive placement, N.J.A.C. 1O:121C-4.l; a duty to perform a detailed pre-adoptive home study of the Jackson home, including ensuring that Raymond and Vanessa Jackson had the capacity to meet Plaintiffs' physical and emotional needs and had disclosed any history or child abuse or neglect or any criminal record, NJ.S.A. 9:3-54.2; NJ.A.C. 10: 121C-3.l (b); NJ.A.C. 1O:121C-4.2; N.J.A.C. 1O:121A-5.7; N.J.A.C. 1O:121A-5.6(c)(2), (d); a duty to ensure that such home study included at least three in-person contacts with Raymond and Vanessa Jackson and at least one in-person contact with all members of the household, at least one visit to the Jackson home, a review of the Jacksons' job references, a review of their personal references, the procurement of various specific categories of information, and completion of
43

background checks regarding criminal records and/or records of prior child abuse or neglect, N.J.A.C. 10: 121A-S.6(e)-(j); a duty not to place Plaintiffs in the Jackson home for the purpose of adoption without a properly completed home study, NJ.A.C. 1O:121A-S.6(m); and a duty to provide post-placement services to Plaintiffs and to Raymond and Vanessa Jackson, including face-to-face communication, to assist with issues relevant to Plaintiffs' adoption, to assess the need for counseling, to refer the adoptive family to medical, therapeutic, educational, self-help, or other services as needed, to assist the family to function autonomously, and to assess the family's readiness .' and suitability for final adoption, N.J.A.C. 1O:121C-"'5.1. To perform these post-placement services, Defendants had a duty to visit Plaintiffs within 14 days of their adoptive placement and on a monthly or bi-monthly basis for at least six months thereafter. N.J.A.C. 10:121A-S.8.
183. Defendants breached these statutory and regulatory obligations to Plaintiffs. 184. As a direct and prox~mate result ofDefendants' failure to fulfill these duties, Plaintiffs sustained substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm to Plaintiffs, as well as pain and suffering, anxiety, social disruption, and other grievous hann.
TENTH CAUSE OF ACTION Violation of New Jersey Statutory and Regulatory Duties
Duty to Rep()rt and Investigate Abuse (Against all Defendants)
185. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 186. Defendants were under various statutory and regulatory obligations to Plaintiffs to report any suspected abuse of Plaintiffs in order to ensure their ongoing safety and welfare. 187. All Defendants who had any contact with Plaintiffs while they were residing with the Jacksons had cause to believe that the children had been subjected to child abuse or acts of child
44

,, .
abuse and thus had a duty to immediately report this information. N.J.S.A. § 9:6-8.10; N.J.A.C. 10:12IA-3.5.
188. Defendants had a duty to investigate such suspected child abuse. N.J.S.A. ' 30:4C12.
189. DYFS also had a duty to immediately report all instances of suspected child abuse and neglect to the county prosecutor in the county in which Plaintiffs resided. NJ.S.A. 9:6-8.36a.
190. Defendants breached these statutory and regulatory obligations to Plaintiffs. 191. '·f' As a direct and proximate cause of Defendants' failure to fulfill these duties, Plaintiffs sustained substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm to Plaintiffs, as well as pain and suffering, anxiety, social disruption, and other grievous harm.
ELEVENTH CAUSE OF ACTION New Jersey Tort Claims Act B Negligence
(Against all Defendants) 192. Each of the foregoing paragraphs is incorporated as if fully set forth herein. 193. Plaintiffs have complied with the notice requirements of the Tort Claims Act. NJ.S.A. 59:1-1 et seq. 194. Defendant~ owed numerous duties to the Plaintiffs. DYFS and Managerial Does had a duty to train their employees to ensure that any suspected abuse and neglect of the Plaintiffs be recognized, reported and investigated as legally required. DYFS and Supervisory Does had a duty to supervise the Casework Does to assure that they recognize, report and investigate any suspected abuse and neglect of the Plaintiffs as legally required. DYFS and Casework Does had a duty to recognize, report and investigate suspected abuse and neglect of the Plaintiffs as legally required.
45

,.
,

195. Defendants had a general duty to ensure that Plaintiffs received adequate nourishment,

care, and services.

196. Defendants also had a duty to screen, approve, license and monitor the Jackson home

to ensure that Plaintiffs received reasonable nourishment and medical care and remained reasonably

safe.

197. Defendants had a duty to take reasonable steps to investigate suspected abuse or

neglect and remove Plaintiffs from an abusive and/or neglectful home.

.. ...:':'-.' ,

·198. By their acts and omissions, Defendants violated the care of duty owed to Plaintiffs.

Defendants acted with gross negligence and/or recklessly. Defendants' acts and omissions were

outside of their scope of employment, and did not involve the mere exercise ofprofessional judgment

or discretion.

199. By their acts and o~issions, Defendants proximately caused permanent injuries to the

Plaintiffs, including substantial physical, emotional, developmental, psychological, and psychiatric

hann. Defendants' acts and omissions were a material element and/or a substantial factor in bringing

the harm about to the Plaintiffs. The harms sustained by the Plaintiffs were a reasonably foreseeable

result of Defendants' acts and omissions.

200. By the foregoing, Defendants are liable for Plaintiffs' injuries pursuant to NJ.S.A.

59: 1-I et seq. Defendants' are jointly and severally liable for the injuries sustained by the Plaintiffs.

TWELFTH CAUSE OF ACTION Violation of New Jersey Law Against Discrimination
(Against all Defendants)
201. Each of the foregoing paragraphs is incorporated as if fully set forth herein.
46

.,.
202. DYFS is a place of public accommodations underN.J.S.A. 10:5-1 et seq. 203. Plaintiffs were perceived and labeled by Defendants as handicapped individuals (having an "eating disorder," "growth deficiency," and/or "food issues" handicap), within the meaning of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. 204. Defendants denied Plaintiffs basic services in an approved and licensed DYFS foster home, including but not limited to the provision of food and basic medical care, because of their perceived handicaps. 205....By their <\cts and omissio~s, Defendants discriminated against Plaintiffs on the.basis of their perceived handicaps. 206. Defendants acted with wanton recklessness and/or reckless indifference. 207. Defendants' conduct was intentional and motivated by actual malice. 208. Defendants acted in bad faith. 209. Defendants acted with willful indifference and reckless disregard toward the discrimination against Plaintiffs. 210. Defendants either approved or acted with willful indifference or reckless disregard to the discrimination against Plaintiffs, so as to warrant punitive damages against them. 211. As a result of Defendants' unlawful conduct, Defendants have caused Plaintiffs to suffer personal hardships, including substantial and unnecessary physical, emotional, developmental, psychological, and psychiatric harm to Plaintiffs, as well as pain and suffering, anxiety, social disruption, and other grievous hann.
47

THIRTEENTH CAUSE OF ACTION Violation of New Jersey Law Against Discrimination B Aiding and Abetting
(Against all Individual Defendants)

212. Each of the foregoing paragraphs is incorporated as if fully set forth herein.

213. DYFS is a place of public accommodations under N.J.S.A. 10:5-1 et seq.

214. The Plaintiffs were perceived and labeled by Defendants as handicapped individuals

(having an "eating disorder," "growth deficien~y," and/or "food issues" handicap), within the

.""

.meaning of the New Jersey Law Against.Discrimination, N.J.S.A. 10:5-1 et seq.

215. Defendants aided and abetted the denial to Plaintiffs of basic services in an approved

and licensed DYFS foster home, including but not limited to the provision of food and basic medical

care, because of their perceived handicaps.

216. ~y their acts and omissions, Defendants have aided and abetted in the discrimination

against the Plaintiffs on the basis of their perceived handicaps.

217. Defendants acted with wanton recklessness and/or reckless indifference.

218. Defendants' conduct was intentional and motivated by actual malice.

219. Defendants acted in bad faith.

48

,,' "

follows:
: ..

RELIEF
WHEREFORE, Plaintiffs demand that judgment be awarded in their favor as
1. an order awarding compensatory damages in an amount to be detennined at trial;
2. an order awarding punitive damages in an amount to be detennined at trial;
3. an order awardinKreasonable attorneys I fees;
4. an order awarding prejudgment interest; and 5. an order directing such other and further relief as the Court may deem just
and proper, including but not limited to appropriate costs and disbursements.

50

"•,
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury on all claims triable to a jury.
By: \7---~~~--------------
EMERY CELLI BRINCKERHOFF & ABADY LLP Richard Emery* Eric Hecker* 545 Madison Avenue, 3rd Floor New York, New York 10022 (212) 763-5000 ERIC THOMPSON* JEFFREY POWELL* Children's Rights 404 Park Avenue South, 11 th Floor New York, New York 10016 (212) 683-2210 Attorneys for Plaintiffs
*Not licensed in New Jersey
51

CERTIFICATION The undersigned hereby certifies that to the best of her knowledge and belief, there are no other parties who should be joined in this action and there are no other actions pending

athleen Dunnigan

.

fh) ~ Dated:

n~1

DESIGNATION OF TRIAL COUNSEL PLEASE TAKE NOTICE that pursuant to Rule 4:25-4, Kathleen Dunnigan is hereby designated as trial counsel for Plaintiffs.

_ By:~~~~ ________________
~ d~ )1JJY Kathleen Dunnigan
Dated:

52

 
 Case: 1:04-cv-3553 As of: 09/13/2012 08:53 PM EDT 1 of 8
CLOSED,RULE16,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:04−cv−03553−JS

K.J. et al v. DIVISION OF YOUTH AND FAMILY SERVICES Date Filed: 07/23/2004

et al

Date Terminated: 03/15/2006

Assigned to: Magistrate Judge Joel Schneider

Jury Demand: Plaintiff

Cause: 28:1331 Federal Question: Other Civil Rights

Nature of Suit: 440 Civil Rights: Other

Jurisdiction: Federal Question

Plaintiff

K.J.

represented by KATHLEEN A. DUNNIGAN

DWYER &DUNNIGAN, LLC

17 ACADEMY STREET

SUITE 1010

NEWARK, NJ 07102

(973) 242−3636

Email: kat@dwyerdunnigan.com

TERMINATED: 07/23/2004

LEAD ATTORNEY

STEVEN KUDATZKY 6000 SAGEMORE DRIVE SUITE 6301 MARLTON, NJ 08053 856−988−3131 Email: skudatzky@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff T.J.

represented by KATHLEEN A. DUNNIGAN (See above for address) TERMINATED: 07/23/2004 LEAD ATTORNEY

STEVEN KUDATZKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
M.J. minors by their Guardian Ad Litem

represented by KATHLEEN A. DUNNIGAN (See above for address) TERMINATED: 07/23/2004 LEAD ATTORNEY

STEVEN KUDATZKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MARCIA ROBINSON LOWRY

represented by KATHLEEN A. DUNNIGAN (See above for address) TERMINATED: 07/23/2004 LEAD ATTORNEY

STEVEN KUDATZKY (See above for address)

Case: 1:04-cv-3553 As of: 09/13/2012 08:53 PM EDT 2 of 8
LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
BRUCE JACKSON TERMINATED: 11/29/2005

represented by MICHAEL D. CRITCHLEY CRITCHLEY &K,LLC 75 LIVINGSTON AVE ROSELAND, NJ 07068−3737 (973) 731−9831 Email: mcritchley@critchleylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DIVISION OF YOUTH AND FAMILY SERVICES
Defendant DEPARTMENT OF HUMAN SERVICES
Defendant STATE OF NEW JERSEY
Defendant PATRICIA BALASCO−BARR Defendant MICHELE GUHL
Defendant CHARLES VENTI
Defendant DORIS JONES

represented by JAMES D. HARRIS OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX PO BOX 112 TRENTON, NJ 08625 (609) 292−8550 Email: jim.harris@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMES D. HARRIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMES D. HARRIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMES D. HARRIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMES D. HARRIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:04-cv-3553 As of: 09/13/2012 08:53 PM EDT 3 of 8
Defendant MANAGERIAL DOES 1−10 SUPERVISORY DOES 1−10, and CASEWORK DOES 1−10

Date Filed 07/23/2004
07/23/2004
07/23/2004 07/30/2004 08/02/2004 08/05/2004
08/05/2004 08/05/2004 08/09/2004 08/09/2004 08/09/2004

# Docket Text
1 NOTICE OF REMOVAL by DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, STATE OF NEW JERSEY, CHARLES VENTI from CAMDEN COUNTY SUPERIOR COURT with the following state court proceedings annexed a)complaint,etc., case number CAM−L−2895−04. (Filing fee $ 150 receipt number 301283) (Attachments: # 1 Cert of Service# 2 Complaint# 3 Certification, etc.# 4 Preliminary Report Part 1# 5 Preliminary Report Part 2# 6 Summons &Letters)(TH, ) Additional attachment(s) added on 7/30/2004 (TH, ). (Entered: 07/30/2004)
COMPLAINT against PATRICIA BALASCO−BARR, DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, DORIS JONES, MANAGERIAL DOES 1−10, STATE OF NEW JERSEY, CHARLES VENTI Jury Demand, filed by K.J., MARCIA ROBINSON LOWRY, M.J., T.J. in Camden County Superior Court on 5/26/04(see document #1).(TH, ) (Entered: 07/30/2004)
2 NOTICE OF RELATED CASE by K.J., MARCIA ROBINSON LOWRY, M.J., T.J. (TH, ) (Entered: 07/30/2004)
3 ORDER Initial Conference set for 10/6/2004 10:30 AM before Magistrate Judge Joel B. Rosen.. Signed by Judge Joel B. Rosen on 7/30/04. (TH, ) (Entered: 07/30/2004)
4 NOTICE by MARCIA ROBINSON LOWRY Notice of Objections to Allocation and Assignment (KUDATZKY, STEVEN) (Entered: 08/02/2004)
5 MOTION to Vacate the June 17, 2004 Order of New Jersey Superior Court Judge John A. Fratto by DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, STATE OF NEW JERSEY, CHARLES VENTI. (Attachments: # 1 Brief # 2 Exhibit # 3 Affidavit # 4 Cert of Serv# 5 Text of Proposed Order)(sb) (Entered: 08/05/2004)
6 RESPONSE TO OBJECTION TO ALLOCATION AND ASSIGNMENT by defendants Division of Youth and Family Services, Department of Human Services, State of New Jersey, Patricia Balasco−Barr, Michelle Guhl, Charles Venti, and Doris Jones. (sb) (Entered: 08/06/2004)
Setting return date as to 5 MOTION to Vacate for 9/3/2004 before Judge Stanley S. Brotman. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 08/24/2004)
7 CERTIFICATE OF SERVICE by DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, STATE OF NEW JERSEY, CHARLES VENTI re 5 MOTION to Vacate. (sb) (Entered: 08/09/2004)
8 MOTION for Extension of Time to File Answer by DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, STATE OF NEW JERSEY, CHARLES VENTI. (Attachments: # 1 Statement # 2 Affidavit # 3 Text of Proposed Order)(sb) (Entered: 08/09/2004)
Setting return date as to 8 MOTION for Extension of Time to File Answer for 9/3/2004 before Magistrate Judge Joel B. Rosen. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 08/09/2004)

Case: 1:04-cv-3553 As of: 09/13/2012 08:53 PM EDT 4 of 8

08/11/2004 08/11/2004
08/11/2004 08/11/2004
08/12/2004 08/20/2004 08/20/2004 08/20/2004 08/24/2004 08/26/2004 08/30/2004 08/30/2004 08/31/2004 08/31/2004 09/24/2004 10/06/2004

9 APPLICATION for extension of time to answer the complaint by DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, STATE OF NEW JERSEY, CHARLES VENTI. (sb) (Entered: 08/11/2004)
10 ORDER granting 8 Motion for extension of time and 9 Application to extend time to answer filed by STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES, DEPARTMENT OF HUMAN SERVICES, CHARLES VENTI, MICHELE GUHL.Signed by Judge Stanley S. Brotman on 8/11/04. (sb) Modified on 8/13/2004 (sb). (Entered: 08/11/2004)
11 LETTER APPLICATION for leave to submit brief having a length of 60 pages by DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, STATE OF NEW JERSEY, CHARLES VENTI. (sb) (Entered: 08/11/2004)
12 ORDER granting 11 Letter Application to submit a brief having a length of 60 pages filed by STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES, DEPARTMENT OF HUMAN SERVICES, CHARLES VENTI, MICHELE GUHL. Signed by Judge Stanley S. Brotman on 8/11/04. (sb) (Entered: 08/12/2004)
13 ORDERED that the application of plaintiffs for reallocation and reassignment of this matter is denied. Signed by Judge John W. Bissell on 8/12/04. (sb) (Entered: 08/12/2004)
14 BRIEF in Opposition re 5 MOTION to Vacate filed by MARCIA ROBINSON LOWRY. (KUDATZKY, STEVEN) (Entered: 08/20/2004)
15 AFFIDAVIT in Opposition re 5 MOTION to Vacate filed by MARCIA ROBINSON LOWRY. (KUDATZKY, STEVEN) (Entered: 08/20/2004)
16 AFFIDAVIT in Opposition re 5 MOTION to Vacate AFF OF STEVEN KUDATZKY IN OPPOSITION TO DEFENDANTS MOTION TO VACATE filed by MARCIA ROBINSON LOWRY. (KUDATZKY, STEVEN) (Entered: 08/20/2004)
CLERK'S OFFICE QUALITY CONTROL MESSAGE: The #10 Order granting #8 motion for extension of time to answer; grants extension to 9/3/2004 (per SSB). (sa, ) (Entered: 08/24/2004)
17 REPLY to Response to Motion re 5 MOTION to Vacate filed by DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, STATE OF NEW JERSEY, CHARLES VENTI. (HARRIS, JAMES) (Entered: 08/26/2004)
18 MOTION to Dismiss for failure to state a claim by DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, STATE OF NEW JERSEY, CHARLES VENTI. (Attachments: # 1 Text of Proposed Order # 2 Brief # 3 Brief cont.)(sb) (Entered: 08/31/2004)
Setting return date as to 18 MOTION to Dismiss for failure to state a claim for 10/1/2004 before Judge Stanley S. Brotman. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 08/31/2004)
19 ORDER permitting Richard Emery and Eric Hecker, Esquires to appear pro hac vice on behalf of plaintiffs. Signed by Judge Joel B. Rosen on 8/31/04. (sb) (Entered: 08/31/2004)
20 Certification of Steven Kudatzky on behalf of K.J., MARCIA ROBINSON LOWRY, M.J., T.J. supporting pro hac vice admission of Richard Emery and Eric Hecker. (Attachments: # 1 Declaration of Richard Emery# 2 Declaration of Eric Hecker)(sb) (Entered: 08/31/2004)
21 STIPULATION re 5 MOTION to Vacate by STATE OF NEW JERSEY. (JORDAN, KAREN) (Entered: 09/24/2004)
22 PROTECTIVE ORDER. Signed by Judge Joel B. Rosen on 10/6/04. (sb) (Entered: 10/06/2004)

Case: 1:04-cv-3553 As of: 09/13/2012 08:53 PM EDT 5 of 8

10/06/2004 10/06/2004 10/07/2004 10/13/2004 10/21/2004 10/22/2004 10/22/2004 10/25/2004 10/29/2004 11/03/2004 11/15/2004 11/22/2004
12/03/2004
12/10/2004 12/21/2004
01/11/2005 02/03/2005 02/23/2005

23 SCHEDULING ORDER: Settlement Conference set for 12/9/2004 02:00 PM before Magistrate Judge Joel B. Rosen.Signed by Judge Joel B. Rosen on 10/6/04. (sb) (Entered: 10/07/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Scheduling Conference held on 10/6/2004. (bb, ) (Entered: 10/07/2004)
24 AMENDED SCHEDULING ORDER: Settlement Conference set for 12/8/2004 02:00 PM before Magistrate Judge Joel B. Rosen.Signed by Judge Joel B. Rosen on 10/7/04. (sb) (Entered: 10/08/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Status Conference by phone held on 10/13/2004. (bb, ) (Entered: 10/14/2004)
Reset Deadlines as to 18 MOTION to Dismiss. Motion Hearing set for 12/3/2004 09:30 AM before Judge Stanley S. Brotman. (sa, ) (Entered: 10/21/2004)
NOTICE of Hearing on Motion 18 MOTION to Dismiss:Motion Hearing set for ORAL ARGUMENT ON 12/8/2004 10:00 AM in Camden − Courtroom 5A before Judge Stanley S. Brotman. (sa, ) (Entered: 10/22/2004)
AMENDED NOTICE of Hearing FOR ORAL ARGUMENT on Motion 18 MOTION to Dismiss: Motion Hearing set for 12/3/2004 10:00 AM in Camden − Courtroom 5A before Judge Stanley S. Brotman. (sa, ) (Entered: 10/22/2004)
25 AMENDED PROTECTIVE ORDER. Signed by Judge Joel B. Rosen on 10/25/04. (MB, ) (Entered: 10/26/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 10/29/2004. (bb, ) (Entered: 11/01/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 11/3/2004. (bb−sl, ) (Entered: 11/04/2004)
26 BRIEF in Opposition re 18 MOTION to Dismiss filed by MARCIA ROBINSON LOWRY. (KUDATZKY, STEVEN) (Entered: 11/15/2004)
27 REPLY to Response to Motion re 18 MOTION to Dismiss filed by PATRICIA BALASCO−BARR, DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES, MICHELE GUHL, DORIS JONES, STATE OF NEW JERSEY, CHARLES VENTI. (Attachments: # 1 Certificate of Service)(JORDAN, KAREN) (Entered: 11/22/2004)
28 Minute Entry for proceedings held before Judge Stanley S. Brotman : Motion Hearing held on 12/3/2004 re 18 MOTION to Dismiss filed by STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES, DEPARTMENT OF HUMAN SERVICES, CHARLES VENTI, MICHELE GUHL. Ordered the cost of transcript to be split between parties. Ordered decision reserved. (Court Reporter Jackie Kashmer.) (sb) (Entered: 12/03/2004)
29 SCHEDULING ORDER: In Person Status Conference set for 2/3/2005 02:00 PM before Magistrate Judge Joel B. Rosen. Dispositive Motions due by 6/1/2005, etc. Signed by Judge Joel B. Rosen on 12/10/04. (MB) (Entered: 12/10/2004)
30 TRANSCRIPT of Proceedings held on 12/3/04 before Judge Stanley S. Brotman. Court Reporter: Kashmer. PLEASE NOTE: The complete transcript of these proceedings is maintained in paper format on file in the Clerks Office. To request copies of this transcript, contact the Official Court Reporter or Transcription Service who prepared the transcript. (ms) (Entered: 12/23/2004)
Minute Entry for proceedings held before Judge Joel B. Rosen : Phone Discovery Conference held on 1/11/2005. (sa, ) (Entered: 01/11/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 2/3/2005. (sa, ) (Entered: 02/04/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 2/23/2005. (sa, ) (Entered: 02/24/2005)

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03/21/2005 04/06/2005 04/06/2005
04/11/2005 05/12/2005 06/06/2005 06/28/2005 07/19/2005 09/13/2005 09/15/2005 09/27/2005 10/03/2005 10/03/2005 10/03/2005
10/17/2005 10/18/2005
11/01/2005
11/08/2005 11/09/2005

31 DISCOVERY ORDER. Signed by Judge Joel B. Rosen on 3/21/05. (sb) (Entered: 03/22/2005)
32 OPINION. Signed by Judge Stanley S. Brotman on 4/6/05. (sb) (Entered: 04/06/2005)
33 ORDER denying 18 Motion to Dismiss as to Counts One through three, six and eleven under Plaintiffs' complaint and ORDERED that Counts Four, Five, Seven, Eight, Nine, Ten, Twelve, Thirteen and Fourteen under Plaintiffs' Complaint shall be dismissed for failure to state a claim. Signed by Judge Stanley S. Brotman on 4/6/05. (sb) (Entered: 04/06/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 4/11/2005. (bb, ) (Entered: 04/12/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Discovery Hearing held on 5/12/2005. (bb, ) (Entered: 05/13/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 6/6/2005. (bb, ) (Entered: 06/07/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 6/28/2005. (bb, ) (Entered: 06/29/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 7/19/2005. (bb, ) (Entered: 07/20/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 9/13/2005. (bb, ) (Entered: 09/14/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Status Conference held on 9/15/2005. (bb, ) (Entered: 09/16/2005)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 9/27/2005. (bb, ) (Entered: 09/28/2005)
34 MOTION for Approval of Settlement by K.J., M.J., MARCIA ROBINSON LOWRY. (Attachments: # 1 Certification # 2 Text of Proposed Order)(db, ) (Entered: 10/05/2005)
MOTIONS 34 MOTION for Settlement REFERRED to Judge Rosen. (db, ) (Entered: 10/07/2005)
Setting Deadlines as to 34 MOTION for Settlement. Motion Hearing set for 11/4/2005 before Magistrate Judge Joel B. Rosen. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db, ) (Entered: 10/07/2005)
35 MOTION approval of settlement agreement by MARCIA ROBINSON LOWRY. (KUDATZKY, STEVEN) (Entered: 10/17/2005)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. The Certification, document number 35, submitted by S. KUDATZKY on 10/17/05 was filed incorrectly as a Motion. For future filings, please select Certification which is located under Other Documents. This message is for informational purposes only. (sb) (Entered: 10/18/2005)
36 ORDERED that Carl Ahrens Price, Esq. shall be appointed to serve as an expert and ORDERED that Mr. Price shall appear before this court for a friendly hearing on November 16, 2005 at 9:30am. Signed by Judge Joel B. Rosen on 10/17/05. (sb) (Entered: 11/01/2005)
37 NOTICE by BRUCE JACKSON (CRITCHLEY, MICHAEL) (Entered: 11/08/2005)
38 MOTION to Intervene by BRUCE JACKSON. (Attachments: # 1 Text of Proposed Order # 2 Certification # 3 Exhibit A# 4 Exhibit B# 5 Exhibit C)(sb) (Entered: 11/14/2005)

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11/09/2005 11/09/2005
11/16/2005 11/16/2005
11/16/2005
11/16/2005
11/16/2005
11/17/2005 11/17/2005 11/21/2005 11/29/2005
11/30/2005 02/06/2006 02/24/2006 03/15/2006 03/15/2006 05/19/2006 11/02/2006

39 MOTION To Approve Special Needs Trust by BRUCE JACKSON. (Attachments: # 1 Text of Proposed Order # 2 Certification # 3 Exhibit)(sb) (Entered: 11/14/2005)
Setting return date as to 38 MOTION to Intervene, 39 MOTION To Approve Special Needs Trust for 11/16/2005 before Magistrate Judge Joel B. Rosen. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 11/14/2005)
42 ORDER appointing William M. Tambussi, Esq. guardian ad litem for Bruce L. Jackson. Signed by Judge Joel B. Rosen on 11/16/05. (sb) (Entered: 11/17/2005)
43 Minute Entry for proceedings held before Judge Joel B. Rosen : Motion Hearing held on 11/16/2005 re 38 MOTION to Intervene filed by BRUCE JACKSON. Ordered motion granted. Order entered. (Court Reporter Frank Gable.) (sb) (Entered: 11/18/2005)
44 Minute Entry for proceedings held before Judge Joel B. Rosen : Hearing on application to appt. William Tambussi as Guardian ad litem held on 11/16/2005. Ordered application granted. Order entered. (Court Reporter Frank Gable.) (sb) (Entered: 11/18/2005)
48 Minute Entry for proceedings held before Judge Joel B. Rosen : Motion Hearing held on 11/16/2005 re 34 MOTION for Settlement filed by K.J., M.J., MARCIA ROBINSON LOWRY. Ordered motion granted. Order entered. (Court Reporter Frank Gable.) (sb) (Entered: 12/02/2005)
49 Minute Entry for proceedings held before Judge Joel B. Rosen : Motion Hearing held on 11/16/2005 re 39 MOTION To Approve Special Needs Trust filed by BRUCE JACKSON. Ordered motion granted. Order entered. (Court Reporter Frank Gable.) (sb) (Entered: 12/02/2005)
40 AMENDED DOCUMENT by MARCIA ROBINSON LOWRY. ORDER APPROVING SETTLEMENT AGREEMENT AND AUTHORIZING DISTRIBUTIONS. (KUDATZKY, STEVEN) (Entered: 11/17/2005)
41 ORDER granting 38 Motion to Intervene. Signed by Judge Joel B. Rosen on 11/17/05. (sb) Additional attachment(s) added on 11/17/2005 (sb, ). (Entered: 11/17/2005)
45 Bruce L. Jackson Special Needs Trust dated November 16, 2005. (sb) (Entered: 11/21/2005)
46 ORDER APPROVING SETTLEMENT and ENTERING JUDGMENT in favor of Bruce L. Jackson against Division of Youth and Family Services in the amount of $5,000,000.00. Signed by Judge Joel B. Rosen on 11/29/05. (Attachments: # 1 Settlement Agreement# 2 Special Needs Trust)(sb) (Entered: 11/30/2005)
47 ORDER granting 34 Motion for Settlement. Signed by Judge Joel B. Rosen on 11/30/05. (sb) (Entered: 12/01/2005)
50 NOTICE of Change of Address by STEVEN KARL KUDATZKY (KUDATZKY, STEVEN) (Entered: 02/06/2006)
Minute Entry for proceedings held before Judge Joel B. Rosen : Settlement Conference held on 2/24/2006. (bb, ) (Entered: 02/27/2006)
51 STIPULATION AND ORDER approving payment of counsel fees and costs and approving final distributions. Signed by Judge Joel B. Rosen on 3/15/06. (sb) (Entered: 03/15/2006)
***Civil Case Terminated. (sb) (Entered: 03/15/2006)
52 LETTER ORDER permitting the purchase of a vehicle. Signed by Judge Joel B. Rosen on 5/19/06. (sb) (Entered: 05/19/2006)
53 CONSENT to Jurisdiction by US Magistrate Judge by DIVISION OF YOUTH AND FAMILY SERVICES, DEPARTMENT OF HUMAN SERVICES, STATE OF NEW JERSEY, PATRICIA BALASCO−BARR, MICHELE GUHL, CHARLES VENTI, DORIS JONES, K.J., T.J., M.J., MARCIA ROBINSON

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11/08/2006 02/28/2007 05/15/2008 06/15/2010
06/29/2010 06/29/2010
06/30/2010 09/20/2011 09/21/2011

LOWRY. Case reassigned to Magistrate Judge Joel Schneider. (sb) (Entered: 11/03/2006)
54 ORDER approving the purchase of a truck. Signed by Judge Joel Schneider on 11/8/06. (sb) (Entered: 11/08/2006)
55 ORDER Regarding Trustee Fees. Signed by Judge Joel Schneider on 2/28/07. (th, ) (Entered: 03/02/2007)
56 LETTER ORDER re: settlement. Signed by Magistrate Judge Joel Schneider on 5/15/2008. (gn ) (Entered: 05/16/2008)
57 LETTER addressed to Counsel re: a request from a reporter to review the Annual Summary of Account of Trustee Reports; advise the Court by 6/30/2010 if you object to making reports available, etc. Signed by Magistrate Judge Joel Schneider on 6/15/2010. (drw, ) (Entered: 06/15/2010)
58 Letter from Counsel to Judge Schneider. (KUDATZKY, STEVEN) (Entered: 06/29/2010)
CLERK'S QUALITY CONTROL MESSAGE − Please review the LETTER FROM COUNSEL attached to docket entry #58 submitted by S. KUDATZKY on 6/29/2010. If this document was attached in error, PLEASE RESUBMIT THE CORRECT DOCUMENT. This submission will remain on the docket unless otherwise ordered by the court. (drw, ) (Entered: 06/29/2010)
59 Letter from Counsel to Judge Schneider. (KUDATZKY, STEVEN) (Entered: 06/30/2010)
60 Letter from Trustee Requesting Approval of Disbursements from Trust. (KUDATZKY, STEVEN) (Entered: 09/20/2011)
61 ORDER granting 60 Letter from Marcia Robinson Lowry &PNC Bank requesting Court approval of disbursements from the trusts for the purchase of a new truck to be used by James Parrish for benefit of T.J., M.J. &K.J. Signed by Magistrate Judge Joel Schneider on 9/21/2011. (drw, ) (Entered: 09/21/2011)