M.D. and M.D., Plaintiffs–Appellants, v. TOWN OF HARRISON JOHN CARNIERO (2011)

Plaintiffs appeal from two orders entered in the Law Division dismissing their complaint under Rule 4:6–2(e) for failure to state a claim.   The complaint alleged claims against the Division of Youth and Family Services and several of its employees (DYFS defendants), and also against a psychologist engaged by DYFS in connection with an abuse or neglect case brought against plaintiffs and previously decided against them.  N.J. Div. of Youth and Family Servs. v. M.D. and M.D., No. A–5870–06 (App.Div. March 12, 2008).   We affirm dismissal of plaintiffs' complaint.

I.

Plaintiff M.D. is the biological mother of A.T., a boy born in 1996.   In 2006, she married the second plaintiff, whose initials are also M.D. and who is not A.T.'s biological father.   Plaintiffs have another son together born in 2006.

The facts and procedural history of the underlying Title 9 abuse or neglect case are set forth with detail in our 2008 unpublished opinion.   Id. (slip op. at 2–20).   We briefly summarize them for purposes of this appeal.

On May 12, 2007, plaintiffs went to a laundromat with their ten-month-old son and left eleven-year-old A.T. at home as punishment.   A neighbor called the police to report that A.T. was locked in his bedroom with no adults present.   The responding police officer found A.T. home alone, took him to the police station, and telephoned DYFS. A DYFS social worker interviewed A.T. and both plaintiffs.   Based on these interviews, DYFS removed both boys from plaintiffs' custody on an emergent basis and placed them with a maternal uncle.   A fact-finding hearing on DYFS's abuse or neglect complaint was subsequently held in June 2007.   The Family Part judge concluded that A.T. was an abused and neglected child.   See N.J.S.A. 9:6–8.21c. Although the younger son was not found to be abused or neglected, the judge found that he was also at risk of harm.

Immediately following the judge's fact-finding opinion, DYFS presented a summary report from defendant Dr. Daniel Bromberg, a psychologist whom DYFS had engaged to evaluate the family.   Dr. Bromberg's report concluded, in relevant part, that A.T. would be at risk for continued abuse and neglect if he was returned to plaintiffs' care.   Based on the fact-finding hearing and Dr. Bromberg's report, the court continued legal and physical custody of both children with DYFS. At a compliance review hearing in August 2007, the judge considered a more extensive report from Dr. Bromberg, which included discussions of his interviews with and psychological tests administered to plaintiffs and A.T.

Plaintiffs subsequently appealed the Family Part's decision that they had abused and neglected A.T. By the unpublished opinion previously referenced, we affirmed the Family Part's finding of abuse and neglect.  M.D., supra, (slip op. at 26–28).   We remanded, however, for a prompt dispositional hearing to determine whether custody of the younger son should be returned to plaintiffs.  Id. (slip op. at 31–33).   The younger son was returned to plaintiffs after the appeal.

In May 2009, plaintiffs filed their civil lawsuit seeking money damages from the DYFS defendants and Dr. Bromberg.   According to their complaint, after the boys' removal, the uncle with whom A.T. had been placed requested that DYFS find another foster home for the boy because of behavior problems.   Testifying at a dispositional hearing, plaintiff mother had “requested that [A.T.] not be placed with her former boyfriend, [J.M.], who was not the father of [A.T.]. She also requested that DYFS neither communicate with [J.M.] nor allow [A.T.] any contact at all with him because she believed [A.T.'s] behavior problems were directly related to [J.M.].” DYFS, however, placed A.T. first with J.M.'s mother and later with J.M. himself.   According to plaintiffs' complaint, A.T. subsequently “bonded with [J.M.] to such an extent that it was deemed both by [plaintiff mother] and all professionals who evaluated plaintiffs and their children to be in [A.T.'s] best interest to be in the legal custody of [J.M.].” As a result, plaintiff mother decided to surrender her parental rights to A.T.

Plaintiffs alleged in their complaint that the DYFS defendants failed to provide mandated services that would have facilitated reunification of plaintiffs with A.T. They alleged that failure to comply with statutory requirements left plaintiff mother “with no choice but to surrender her right to parent her son, [A.T.] in his best interest.”   As to Dr. Bromberg, the complaint alleged professional malpractice in his psychological evaluations and asserted that the malpractice was a proximate cause of the eventual surrender of plaintiff mother's parental rights.

The DYFS defendants and Dr. Bromberg moved separately to dismiss the claims against them under Rule 4:6–2(e) for failure to state a claim upon which relief can be granted.   The Law Division granted their motions by orders dated November 6, 2009, and April 16, 2010, respectively.   Plaintiffs appeal those orders.

II.

In considering a motion to dismiss a pleading under Rule 4:6–2(e), courts search the allegations of the pleading in depth and with liberality to determine whether a cause of action is “ ‘suggested’ by the facts.”   Printing Mart–Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate–Palmolive Co., 109 N.J. 189, 192 (1988)).   Dismissal is appropriate if the complaint states no basis for relief and discovery would not provide one.  Camden County Energy Recovery Assoc., L.P. v. N.J. Dep't of Envtl Prot., 320 N.J.Super. 59, 64 (App.Div.1999), aff'd, 170 N.J. 246 (2001).

Our standard of review is plenary from a trial court's decision to grant a motion to dismiss a pleading pursuant to Rule 4:6–2(e).  Sickles v. Cabot Corp., 379 N.J.Super. 100, 106 (App.Div)., certif. denied, 185 N.J. 297 (2005).   We owe no deference to the trial court's conclusions.   We assume for purposes of the appeal that plaintiffs can prove the facts alleged in their complaint.   See Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 625–26 (1995).

A.

According to the complaint, DYFS failed to provide counseling services, family therapy, medical evaluations, financial assistance to the caretakers, visitation on a regular basis, and “case plans detailing what plaintiffs had to do in order to regain custody of their children.”   As one basis for dismissal of plaintiffs' claims, the trial court concluded that DYFS and its employees are entitled to absolute immunity under the Tort Claims Act, N.J.S.A. 59:1–1 to 12–3.   We agree.

Under the Tort Claims Act, state entities are generally immune from suit unless liability is expressly established by statute.   See N.J.S.A. 59:2–1.   The Act specifically disclaims liability of public entities for “legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature.”  N.J.S.A. 59:2–3(b).  In addition, with respect to public employees, the Act provides that:  “A public employee is not liable for an injury where a public entity is immune from liability for that injury.”  N.J.S.A. 59:3–1(c).

In Delbridge v. Schaeffer, 238 N.J.Super.   323 (Law.Div.1989), aff'd sub nom.  A.D. v. Franco, 297 N.J.Super. 1 (1993), certif. denied, 135 N.J. 467, cert. denied sub nom.  Delbridge v. Franco, 513 U.S. 832, 115 S.Ct. 108, 130 L.Ed.2d 56 (1994), the plaintiff-parents brought a civil lawsuit against DYFS and individual DYFS employees after their parental rights to six children were terminated.  Id. at 328–31.   Because the plaintiffs' claims arose out of the defendants' participation in a matter that was properly before the Family Part, the defendants were entitled to quasi-judicial absolute immunity.  Id. at 340–42.   Here, plaintiffs' claims arise out of the alleged inaction of DYFS and its employees in connection with the Family Part dispositional proceedings.   In these circumstances, the DYFS defendants are entitled to absolute immunity.

Plaintiffs' claims are also barred by the doctrines of res judicata and collateral estoppel.   Res judicata “refers broadly to the common-law doctrine barring re-litigation of claims or issues that have already been adjudicated.”  Velasquez v. Franz, 123 N.J. 498, 505 (1991).   Similarly, collateral estoppel has been described as a “branch of the broader law of res judicata.”  State v. Gonzalez, 75 N.J. 181, 186 (1977).   Under collateral estoppel, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in a future lawsuit.”  Id. at 192 (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 495 (1970)).

Here, plaintiffs' claims that defendants failed to provide services were or should have been raised in the Family Part's dispositional proceedings, at which plaintiff mother's parental rights and DYFS's statutory obligations were directly in issue.   They cannot be litigated again in a separate civil lawsuit alleging tort claims against DYFS and its employees.

B.

Plaintiffs' complaint also alleged that Dr. Bromberg's reports “deviated from the standards of practice of psychology.”   The trial court concluded correctly that plaintiffs' claim against Dr. Bromberg must be dismissed in accordance with the litigation privilege.

The litigation privilege applies to “any communication (1) made in judicial or quasi-judicial proceedings;  (2) by litigants or other participants authorized by law;  (3) to achieve the objects of the litigation;  and (4) that have some connection or logical relation to the action.”  Hawkins v. Harris, 141 N.J. 207, 216 (1995).   This privilege “is not limited to statements made in a courtroom during trial.”  Ibid. Rather, it also “attaches to reports and other communications prepared for submission to the court or during the course of litigation.”

Delbridge, supra, 238 N.J.Super. at 366–67.

Here, Dr. Bromberg was engaged by DYFS to perform psychological evaluations in connection with the abuse or neglect case against plaintiffs.   His reports were then submitted to the court during the course of the litigation.   The litigation privilege bars a claim of negligence based on those reports.   Contrary to plaintiffs' argument, application of the privilege is not affected by whether Dr. Bromberg testified or the timeliness of production of his reports in discovery.

Affirmed.

PER CURIAM