No Immunity for N.J. in Foster Family Abuse Suit

     (CN) – New Jersey may be liable to a boy whose foster parents allegedly threw things at him, slammed his leg in a door and broke his collarbone, a federal judge ruled.
     Kristen Steinnagel says that the Division of Youth and Family Services placed her 3-year-old son, D.B., with foster parents Matthew and Anne Marie Muzslay in late 2002. The department is now known as the Division of Child Protection and Permanency.
     During the two years in which she was allowed biweekly visits with D.B., Steinnagel say she often found her son wearing “old and filthy clothes” and sporting “visible bruises on his legs and body.”
     At one point, Steinnagel allegedly discovered that D.B. had a broken collarbone. The child said he suffered the injury by falling out of a van, and he blamed other injuries on the Muzslays’ dog or on his own clumsiness.
     Steinnagel claims to have reported the injuries to D.B.’s caseworkers and to the abuse hotline that the division runs. But the state allegedly failed to investigate the claims or remove D.B. from the Muzslays’ home.
     Steinnagel says she won custody of D.B. in 2006. Now 13, the boy has since struggled with expressing his emotions, been hospitalized, and prescribed numerous psychiatric medication, according to the complaint.
     D.B. has allegedly revealed that the Muzslays verbally abused him, struck him, threw shoes and boots at him, and slammed his leg in a door.
     The federal complaint names the Division of Youth and Family Services as defendants along with the Department of Human Services, New Jersey, the Muzslays and other as-yet unnamed individuals.
     D.B. sued through Stennagle and his other “guardian,” Ronald Bergen, alleging negligence, violations of the due-process clause and other charges.
     U.S. District Judge Freda Wolfson refused to dismiss the claims against the state defendants on the basis of sovereign immunity and failure to timely file a tort claim notice.
     “Reading the complaint as a whole, while it is not clear whether the state officer defendants are being asked to pay their own compensatory damages, resolving all doubts in favor of D.B., and considering the complaint’s express statement that counts 1 through 3 apply to the state official defendants in their personal capacities, I construe the complaint as not asserting the section 1983 claims against the state officials in their official capacities,” Wolfson wrote. “As such, plaintiff’s section 1983 counts are limited to the state officer defendants in their personal capacities because they would otherwise be barred by the Eleventh Amendment.”
     Wolfson also tossed aside claims that tort claim notice was not filed within 90 days of its accrual.
     “As demonstrated by plaintiff’s exhibits submitted in opposition, the state defendants are mistaken,” the 15-page opinion states. “Plaintiff did, indeed, file a tort claim notice, albeit more than ninety days after his claims accrued. Plaintiff filed his initial notice on September 1, 2011, while he complains of conduct that took place from 2003 through 2006. Arguing that his notice is nonetheless timely, he points to statutory text and case law suggesting that the tort claim notice requirement is tolled during a plaintiff’s infancy.”

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