545 F.Supp.3d 178
D.N.J.2021Background
- Alison Chavez, a 16-month-old foster child, died from an acute subarachnoid hemorrhage ruled a homicide; numerous bruises and signs of prior injuries were found.
- DCPP (DCF) placed Alison and her siblings with foster parents licensed with CARAS as sponsor; concerns arose after Alison fell from a chair on Sept. 27, 2012 and developed black eyes and other marks.
- DCPP caseworker Luisa Cordero learned of the injury, instructed the foster parent to obtain care, then took Alison to a doctor after daycare reported worsening signs; Cordero’s supervisor Andrea Moody instructed Cordero to act.
- Other DCPP employees (e.g., David Henningsen) handled follow-up, did not immediately review full file or return a non-urgent voicemail left by Alison’s physician, Dr. Anita Kishen.
- CARAS and Kean University provided recruitment/oversight for Spanish-speaking foster parents but DCPP retained custody and authority to remove children; CARAS is a Kean subentity.
- After Alison’s death, IAIU found evidence suggesting repeated abuse; plaintiff sued DCF/DCPP employees, CARAS/Kean, foster parents, and Dr. Kishen. Court resolved multiple summary judgment motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DCF/DCPP (the agencies) are subject to §1983/NJCRA liability | Agencies are responsible for failing to protect Alison while in foster care | State agencies are arms of the State and not "persons" under §1983 or NJCRA | DCF/DCPP are not "persons"; summary judgment for agencies on civil-rights claims granted |
| Whether individual DCPP employees violated substantive due process (§1983/NJCRA) by deliberate indifference | Cordero (and Moody as supervisor) knew facts (head injury, black eyes, failure to seek care) showing an excessive risk and failed to remove/investigate | Defendants claim qualified immunity and that actions were reasonable, investigative, or non-culpable omissions | Jury question exists as to Cordero and Moody; qualified immunity denied for them (claims against other individual DCPP employees dismissed) |
| Whether DCF/DCPP and their employees are immune under the NJTCA (failure-to-enforce, good-faith, discretionary immunity) | Plaintiff: claims are operational negligence in protecting child, not mere failure-to-enforce | Defendants: NJTCA immunities (absolute for failure-to-enforce; qualified good-faith; discretionary decision immunity) bar liability | Court: plaintiff’s claims are actionable negligence in execution of duties (not pure failure-to-enforce) so absolute failure-to-enforce immunity inapplicable; nevertheless discretionary and NJTCA good-faith analyses entitle agencies to immunity except as to Moody and Cordero; agencies insulated from vicarious liability if employees commit willful misconduct |
| Whether CARAS/Kean and CARAS employees are liable under §1983/NJCRA and/or common law | Plaintiff: CARAS workers observed/assisted foster family and failed to act on red flags; should be liable | CARAS/Kean: Eleventh Amendment bars §1983/NJCRA suits against state arms; CARAS was only a helper entity and Kean is an arm; New Jersey Charitable Immunity Act (CIA) shields nonprofit educational/charitable entities | Court: Kean and CARAS not §1983/NJCRA defendants (arm of the State); Avila/Cerda (CARAS staff) had no custodial special-relationship with Alison—no constitutional claim; CARAS/Kean entitled to charitable immunity on common-law claims; summary judgment granted to CARAS defendants |
| Whether Dr. Kishen (physician) is liable for failing to report suspected abuse without an Affidavit of Merit/expert evidence | DCF third-party claim: Kishen failed to report reasonable suspicion under N.J.S.A. §9:6-8.10 | Kishen: malpractice/medical judgment issues require expert proof/Affidavit of Merit; no adequate expert affidavit provided | Court: evaluation whether a physician should have suspected abuse implicates medical judgment; expert proof/Affidavit of Merit required and not supplied; summary judgment for Dr. Kishen granted |
Key Cases Cited
- Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) (state-created special-relationship for foster children; deliberate indifference standard in foster-care placements)
- DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (U.S. 1989) (no due-process duty to protect from private violence absent state custody or restraint)
- Doe v. New York City Dep’t of Soc. Servs., 649 F.2d 134 (2d Cir. 1981) (agency deliberate indifference to known abuse can support §1983 liability)
- Tamas v. Department of Soc. & Health Servs., 630 F.3d 833 (9th Cir. 2010) (foster children have protected liberty interest; state actors may be liable when they knowingly disregard risk)
- Barkes v. First Corr. Med., Inc., 766 F.3d 307 (3d Cir. 2014) (supervisory liability under §1983 requires participation, direction, or deliberate indifference to subordinate misconduct)
- L.A. v. Division of Youth & Family Servs., 217 N.J. 311 (N.J. 2014) (N.J. reporting statute provides standard of care; professional status informs reasonableness of reporting)