                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3717-13T2

N.E., AS LEGAL GUARDIAN
FOR INFANT J.V.,
                                         APPROVED FOR PUBLICATION
     Plaintiff-Respondent/
     Cross-Appellant,                         April 4, 2017
v.
                                            APPELLATE DIVISION

STATE OF NEW JERSEY DEPARTMENT
OF CHILDREN AND FAMILIES, DIVISION
OF YOUTH AND FAMILY SERVICES;
NUSSETTE PEREZ, and FELIX UMETITI,

     Defendants-Appellants/
     Cross-Respondents.
_________________________________________

         Argued December 16, 2015 – Decided April 4, 2017

         Before Judges Fuentes, Koblitz and Kennedy.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Docket No. L-
         3980-10.

         Edward J. Dauber argued the cause for
         appellants/cross-respondents     (Greenberg
         Dauber Epstein & Tucker and Greenbaum Rowe
         Smith & Davis, attorneys; Mr. Dauber, Linda
         G. Harvey, Kathryn B. Hein and John D.
         North, on the brief).

         David   A.  Mazie   argued the   cause   for
         respondent/cross-appellant  (Mazie    Slater
         Katz & Freeman, attorneys; Mr. Mazie, of
         counsel and on the brief; David M. Estes,
         David M. Freeman and Beth G. Baldinger, on
         the brief).
    The opinion of the court was delivered by

FUENTES, P.J.A.D.

    On    January    10,    2012,    J.V.    pled   guilty     before   the    Law

Division,     Criminal   Part   to   second      degree   aggravated    assault,

N.J.S.A. 2C:12-1(b)(1), and fourth degree child abuse, N.J.S.A.

9:6-1, against his then four-month-old son J.V. ("Baby Jesse").1

As required by Rule 3:9-2, J.V. described under oath the facts

supporting his guilty plea.          He testified that on the morning of

July 16, 2009, Baby Jesse's mother, Vivian, "dropped [his] son

off" at his apartment.          J.V. admitted that "at this point in

time,"   he   was   aware   there    was    an   order    in   effect   from    the

Division of Youth and Family Services (the Division) prohibiting

him from having "unsupervised contact" with Baby Jesse.

    J.V. admitted that when his infant son began to cry, he

shook him with great force, knowingly "disregarding the risk"

that the child would be injured.            Baby Jesse "slipped" from his

hands and "fell to the floor . . . [and] hit his head."                        J.V.

called 911 when he noticed Baby Jesse was not breathing.                       J.V.

acknowledged that as a direct result of his actions, Baby Jesse

was "seriously injured."        N.J.S.A. 2C:11-1(b) defines "[s]erious

bodily injury" as an injury "which creates a substantial risk of

1
  Pursuant to Rule 1:38-3(b)(9), we use fictitious names when
needed to protect the privacy of the child victim.




                                       2                                 A-3717-13T2
death    or    which      causes    serious,        permanent     disfigurement,    or

protracted loss or impairment of the function of any bodily

member or organ[.]"           It is undisputed that Baby Jesse suffered

catastrophic injuries.2

       It is also undisputed that after investigating a previous

allegation of abuse, the Division had entered into a case plan

agreement      with    Baby      Jesse's     mother,     "Vivian,"     and   maternal

grandmother,       N.E.     (the    child's      legal    guardian).     Both    women

agreed not to permit J.V. to have unsupervised access to Baby

Jesse.       This agreement was in effect at the time J.V. physically

assaulted his son, with one modification.                   At Vivian's request,

N.E.    was    replaced     by   the      child's    maternal     grandfather,     U.M.

("Ugo"), and his wife, L.M. ("Linda") as caretakers while Vivian

was at work.

       Vivian was on her way home from work when her stepmother,

Linda, asked her for permission to leave Baby Jesse alone with

J.V.    to    go   wash    her     car.     Because      Vivian    thought   she   was

approximately twenty minutes away from her home, she told Linda

2
  At the time of this civil trial, Baby Jesse was four years old.
A pediatric neurologist testified he is unable to walk or speak,
and has significant visual impairments.       "He has an active
seizure disorder, which requires treatment with anti-seizure
medications, is not able to eat, requires a feeding tube, and
requires therapies to allow . . . his development to advance."
A pediatric physiatrist opined these injuries were the result of
"a neurologic insult from the shaken baby syndrome[.]"




                                             3                               A-3717-13T2
it was alright.         Less than ten minutes later, Ugo called Vivian

to tell her Baby Jesse was in the hospital.

       Approximately     four   months       before    J.V.   pled   guilty,      Baby

Jesse's    maternal     grandmother,     N.E.,3       filed   this   civil     action

against the State of New Jersey, Department of Children and

Families (the Division); Division caseworker Felix Umetiti; and

Umetiti's    supervisor,     Nussette        Perez.      In   addition   to     these

state government parties, plaintiff named as defendants Newark

Beth    Israel    Medical   Center,      Overlook      Medical   Center,       and    a

number of other professionals who provided medical services to

Baby Jesse.       Plaintiff settled her claims against the non-public

defendants for $7,000,000.           The net proceeds of the settlement

were used to establish an annuity and special needs trust for

the benefit of Baby Jesse.4          Thus, this appeal concerns only the

Division and its employees.

       Plaintiff's claims against the Division are predicated on

the    doctrine    of   respondeat    superior.         Plaintiff    argues      this

3
  N.E. does not have a direct claim in this suit.       However,
because she is Baby Jesse's legal guardian, we will refer to her
as "plaintiff."
4
  The record includes a copy of the May 29, 2013 Law Division
order, which approved the minor's settlement and created the
special needs trust. Paragraph 11 awards plaintiff's attorneys
25% of "the net monies recovered in excess of $2 million." It
also directs Newark Beth Israel Hospital and an individual
physician to pay $1,769,374.32 in legal fees and $139,169.37 in
costs.



                                         4                                   A-3717-13T2
court must hold the Division vicariously liable for a series of

discretionary decisions made by Division caseworker Umetiti and

his supervisor while investigating plaintiff's allegations of

child abuse and parental unfitness on May 28, 2009.                          Plaintiff

alleged    Umetiti   and    Perez    negligently        failed    to    remove    Baby

Jesse from his parents' custody, despite evidence showing his

father was mentally unstable and physically abusive.

    The Division argued before the trial court that the Torts

Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3, bars plaintiff's

claims against Umetiti and his supervisor, because the decision

on whether to remove a child from the care and custody of a

parent or legal guardian inherently involves the exercise of

human judgment and discretion.                Under these circumstances, the

TCA provides public employees with absolute immunity from civil

liability.     N.J.S.A. 59:3-2(a).             At the charge conference, the

Division also argued it was entitled to qualified immunity under

N.J.S.A.     59:3-3.       The    trial        judge     rejected       defendants'

application    as    a   matter     of   law    and    instructed      the    jury   to

consider the good faith immunity of N.J.S.A. 59:3-3 only with

respect to certain aspects of the investigation.                          The trial

court held the Division was subject to civil liability if it

negligently performed or failed to perform any one of sixteen

"ministerial    tasks"      while    deciding         whether    to    exercise      its




                                          5                                   A-3717-13T2
discretionary authority to remove the child from his parents'

custody.

       The trial court also rejected the Division's argument for

absolute immunity under N.J.S.A. 59:3-2(a), characterizing the

Division's removal of a child from his parents' custody as a

ministerial      act     that     a    jury    can       assess   under       an    ordinary

negligence standard.            The court relied on Coyne v. DOT, 182 N.J.

481 (2005), to hold that the caseworker's decision to permit

Baby    Jesse     to     remain       with    his     parents,        conditioned        upon

plaintiff and the child's mother agreeing not to allow J.V. to

have unsupervised access to the child, was not a discretionary

act    under    N.J.S.A.     59:3-2(a)         because      "no   high    level      policy

making" was involved.            The court noted that none of the Division

employees were "the lead employee in the office, let alone[] the

agency."        Finally,     the      court    held      the   jury    was     capable     of

determining       whether       the     Division's         decision      was       "palpably

unreasonable."         N.J.S.A. 59:3-2(d).

       The     case    was   tried      before       a     jury   for     a    period       of

approximately three weeks, spanning from November 19, 2013 to

December 13, 2013.           The jury found that in failing to remove

Baby    Jesse     from    his      parents'        home,    the   Division         and    its

employees acted negligently.                  The jury further found that the

Division's      negligence       served       as   the     proximate     cause      of   Baby




                                              6                                     A-3717-13T2
Jesse's injuries.          An interrogatory on the verdict sheet read:

"Did the DYFS defendants prove that leaving [Baby Jesse] in the

home   was    not    palpably       unreasonable?"          The     jury    unanimously

responded:        "No."

       On   the    question       of    apportionment       under    the    Comparative

Negligence        Act,    N.J.S.A.       2A:15-5.1     to    -5.17,       the    Division

presented evidence showing that on June 12, 2009 (five weeks

before J.V. assaulted Baby Jesse), the Division had in place a

safety plan that involved the voluntary participation of three

key family members.          In an effort to keep the family united, Ugo

and Linda voluntarily agreed to care for Baby Jesse during the

time Vivian was at work.                The principal purpose of the plan was

to never leave Baby Jesse alone in J.V.'s care.

       Immediately        after        the    jury   announced      its    verdict      on

liability, the trial judge informed the jury that J.V. had also

been found responsible for the harm to Baby Jesse.                              After the

judge instructed the jury on the legal concept of apportionment,

the court permitted counsel to present closing arguments limited

to   this    question.        The       jury   verdict   sheet      on    apportionment

required the jury "to allocate to each of the following the

percentage by which that person or persons contributed to [Baby

Jesse's]     injuries:"      the       DYFS    defendants    (Umetiti,      Perez,     and

Powell), J.V., Vivian, Linda, and Ugo.




                                               7                                 A-3717-13T2
      The jury found the Division 100 percent liable and absolved

the   remaining       parties       of    all   liability.              The   verdict    sheet

reflects the jury specifically wrote "0" next to J.V.'s name,

and   crossed    out       the     remaining        names.         On    the    question      of

damages, the jury awarded $105,000,000 to cover the cost of

providing future medical services to Baby Jesse; $57,670,000 for

pain and suffering; $1,410,343 for lost wages; and $1,892,160,

representing the value of the services plaintiff had provided to

Baby Jesse.

      The     trial       judge      thereafter        entered           judgment     against

defendants      for       $165,972,503,         constituting        the       total   damages

described     herein,        plus    $1,432,872.81           for    satisfaction         of    a

Medicaid      lien.           The        judgment      credited          defendants        with

$7,475,000,      representing             the       proceeds       of     the    settlement

plaintiff reached with the medical care providers.                               Defendants

filed a motion for judgment notwithstanding the verdict, which

the court denied.           The court also denied defendants' motion for

a new trial.       The court partially granted defendants' motion for

remittitur, reducing the damages for future medical expenses and

life care to $75,868,321, or, at plaintiff's election, a new

trial.      In accordance with its decision on remittitur, the trial

court    entered      a    final    judgment        against    the       Division     in    the

amount of $56,901,240 for future medical expenses; $43,252,500




                                                8                                     A-3717-13T2
for pain and suffering; $1,057,575.25 for loss of future income;

and $1,419,120 for past services.

       In this appeal, we are required to determine whether the

State   of    New    Jersey    can   be    held    vicariously     liable     for   the

catastrophic injuries Baby Jesse suffered as the result of his

father's criminal act.          The basis of liability is a caseworker's

decision      to    explore    the   viability       of    a   voluntarily    adopted

safety plan, rather than taking immediate action to remove the

child from his parents' home without their consent.                          Based on

these uncontested facts, we hold the Division caseworkers were

entitled to judgment notwithstanding the verdict based on the

qualified immunity afforded to public employees who act in good

faith in the enforcement or execution of any law.                       See N.J.S.A.

59:3-3.

       The    decision    to   remove      a     child    involuntarily      from   the

custody of a parent or guardian is governed by a comprehensive

statutory scheme.        Plaintiff failed to establish, as a matter of

law, that the decision the Division reached here was contrary to

the    law    or    lacking    in    subjective      good      faith.   An   ordinary

negligence standard is an insufficient basis to impose civil

liability on a public employee involved in the execution of the

law.    As a matter of public policy, the Legislature adopted the

TCA    to    insulate    the   State      from    civil    liability    under    these




                                            9                                 A-3717-13T2
circumstances.         For these reasons, we reverse the jury's verdict

and vacate the final judgment entered against defendants in the

amount of $165,972,503, as well as the $1,432,872.81 to satisfy

the Medicaid claims.

                                            I

                 May 28, 2009 Incident and Investigation

    Vivian was eighteen years old when she gave birth to Baby

Jesse in 2009.           She resided with plaintiff (her mother) and

plaintiff's husband.           Vivian moved out of plaintiff's home when

Baby Jesse was one month old.                     She stayed with J.V. and the

child's   paternal       grandmother        for    approximately       one   month,    at

which point she and J.V. found their own apartment.                          Plaintiff

took care of the child three or four times per week to enable

Vivian to work at a Dunkin Donuts.

    When Vivian dropped the baby off on May 28, 2009, plaintiff

noticed    he    had    bloodshot      eyes       and   bruises   on    both    cheeks.

Plaintiff      took    the    child    to   the     Dunkin   Donuts     where     Vivian

worked    to    show    her   the     injuries.         Plaintiff   testified       that

Vivian began to cry and told her J.V. "was treating the baby

badly."        Plaintiff reported the child's bruises and Vivian's

allegations of abuse to the Division when she returned home.

According to plaintiff's testimony, she also told the Division




                                            10                                  A-3717-13T2
she believed J.V. was "crazy," had "bipolar," was using illegal

drugs, and was physically abusive to Vivian.

       Caseworker      Felix   Umetiti    was   assigned    to    the   Division's

Union County office when he received the screening summary for

the case on May 28, 2009 at 1:40 p.m.             His title at the time was

Family Service Specialist I, which involved "investigating cases

assigned to [him], going out in the field to do the actual

investigation, [and] get[ting] to know [the] collaterals within

the time frame allotted . . . through the             policy."

       Nussette    Perez     was   Umetiti's    direct     supervisor.       Perez

began working for the Division in 2000.                  She was in charge of

the Division's Union County office at the time plaintiff called

to     report    her     allegations     of   abuse   against      J.V.      As    a

supervisor, Perez was required to oversee the cases assigned to

five caseworkers.          These caseworkers carried a caseload ranging

from    twelve    to     twenty    families.      Perez's        responsibilities

included: (1) conducting pre and post-investigation conferences;

(2) guiding and supervising the caseworkers as they gathered

information;       (3)     reading     and    approving     all    investigation

reports; (4) ensuring investigation reports were electronically

entered into the Division's computer records; (5) ensuring risk

assessments and contact sheets were properly recorded; and (6)

ensuring compliance with Division timeframes.




                                         11                               A-3717-13T2
       According to procedure at that time, the Division had sixty

days from May 28, 2009 to complete its investigation and make a

determination as to what services it would provide the family

and    what    legal   action,   if    any,     was   required    to    ensure      the

family's safety. N.J.A.C. 10:129-5.3(c).5                    The initial part of

the investigation was to occur within the first fourteen days.

N.J.A.C.      10:129-2.8(b).         The   second     phase   required    a    formal

investigation where the Division would interview more people,

gather collateral information, and make assessments to determine

what course of action was required.              See N.J.A.C. 10:129-2.9.

       Umetiti visited plaintiff's home on May 28, 2009.                       He met

with    plaintiff,      plaintiff's        husband,    and    Vivian.     He       also

personally examined and photographed Baby Jesse, confirming the

infant had visible bruises on his face and blood in his eyes.

Plaintiff and Vivian then transported the baby to Newark Beth

Israel Hospital, while Umetiti followed behind in a state-owned

car.

       At the hospital, plaintiff told Umetiti that she believed

J.V. suffered from bipolar disorder.                Plaintiff claimed J.V. was

not taking any legitimate medication for his illness, relying

instead       on   illicit   drugs    to    self-medicate.        Plaintiff       also


5
  These regulations have been superseded by                   N.J.A.C. 3A:10-2.1
to -3.3; N.J.A.C. 3A:10-7.3.



                                           12                                 A-3717-13T2
claimed J.V. "used to beat up [his] ex-girlfriend[.]"                     Plaintiff

told Umetiti that Vivian was afraid of J.V., and she showed him

Vivian's bruises.

       At the hospital, Umetiti also interviewed Vivian about Baby

Jesse's injuries.            Vivian told Umetiti she first noticed Baby

Jesse had blood in his eyes on May 19, 2009.                    She took him to

his pediatrician, who told her "that it will resolve itself

within a couple of weeks[.]"               According to Vivian, the doctor

also    told       her    that   infants   sometimes     have   this     condition.

However,      on    May    22,   2009,   Vivian   took   the    baby   to   another

physician for a second opinion.                 This doctor told her to take

her     son    to    the    hospital.       Vivian     followed    the      doctor's

instructions and took Baby Jesse to Overlook Hospital in Union

County.       The hospital told her that Baby Jesse's condition could

have been caused by sneezing, coughing or straining.

       Umetiti also asked Vivian about J.V.'s behavior toward the

baby.     Umetiti testified that Vivian told him she had "never

seen [J.V.] getting aggressive or losing patience around the

child[.]"      Vivian stressed that "he has never been a problem[.]"

Umetiti asked Vivian about plaintiff's specific allegation that

Vivian had seen J.V. shake the baby.                 Vivian flatly denied it.

In fact, at no point during the entire investigation did Vivian




                                           13                               A-3717-13T2
ever tell Umetiti that she was concerned about J.V. abusing the

baby.

      Umetiti       also       asked   Vivian        about   domestic     violence      in

connection with the bruise he saw on her arm.                           She denied any

allegation of domestic violence and attributed the bruises to

"rough sex."        Given the seriousness of the allegations, Umetiti

asked Vivian to repeat the responses she had given to him in

front   of    her    mother.           Umetiti       testified   that    Vivian      again

vehemently denied her mother's allegations.                        With respect to

J.V.'s mental state, Vivian confirmed that he had been diagnosed

with bipolar disorder "at the age of five."                        However, she did

not   know   whether       a    physician      was    treating   him     at    the   time.

Vivian told Umetiti that J.V. was not taking any medication.

Although     he   used     marijuana      as     a   teenager,   she     did   not   know

whether he was currently using drugs.                    Umetiti accepted Vivian's

account of these events as truthful.6

      The physician who examined Baby Jesse at Newark Beth Israel

Hospital told Umetiti that a CT-Scan and other diagnostic tests

showed no fractures or skeletal problems.                        The doctor's only

6
  On direct examination, Vivian admitted she lied to Umetiti
about the nature of her bruises.     The bruises were actually
caused by J.V.'s abusive behavior towards her.      Vivian also
withheld from the Division that J.V. physically abused her on a
regular basis and at least once threatened to kill her while
holding a knife to her throat.




                                            14                                   A-3717-13T2
concern    was    the    unexplained     injury       around       the   infant's      neck

area.     Based on this, the doctor told Umetiti he "couldn't rule

out possible child abuse and he suspected child abuse."                                 The

doctor did not testify at trial.

    After this initial encounter, Umetiti personally visited

Vivian and Baby Jesse on June 1, 2009, and June 12, 2009.                                 He

also received what he characterized as "regular reports" from

plaintiff       and   Vivian     confirming      that    Baby       Jesse   was    "doing

okay."     Umetiti testified that on June 12, 2009, he met with

Vivian,     J.V.,       plaintiff,      and     plaintiff's          husband      at    the

Division's conference room to discuss a plan for the family to

consider going forward.            The family members agreed to a "case

plan,"    which       required    J.V.'s      cooperation          and   plaintiff      and

Vivian's active participation.                  Vivian agreed to care for her

infant    son    during    the    day   and     to    never    allow     J.V.     to   have

unsupervised access to the child.                 Plaintiff agreed to care for

her grandson at night when Vivian was at work.

    Umetiti testified that he contacted his supervisor, Perez,

to explain the details of the case plan and obtain her input and

approval.        Furthermore,      he   asked        Perez    to    join    him   in    the

Division conference room when he met with the family to explain

the case plan's conditions.              Umetiti also wanted some form of




                                           15                                     A-3717-13T2
medical      confirmation          and    explanation         of    J.V.'s        psychiatric

problems.

       The terms of the case plan were memorialized in a document

signed by all of the affected family members.                                Unfortunately,

this   document         is   not   included       in    the     appellate     record.       As

described         by   Umetiti,     the    plan      required      J.V.     and    Vivian    to

submit       to    drug      assessments.              Vivian      agreed     to    "have     a

responsible adult . . . supervise her son at all times[,]" and

to allow her mother to babysit.                     The parties further agreed that

J.V. "must not be left alone with his son . . . unsupervised at

any time."         The case plan made clear that if J.V. violated this

condition,        the    Division    would      seek     judicial      authorization        to

remove the child from his parents' custody.

       The    case      plan   began      on   June     12,     2009   and    was    set    "to

expire" on June 30, 2009.                 When asked to explain the reasons for

this eighteen-day limitation, Umetiti stated: "The 6/30 date I

put there just to remind me . . . I have to revisit to see where

we are with . . . the case, what's going on.                           Because . . . you

can't leave it indefinitely."                   Umetiti also gave the following

response when asked how this plan addressed the risk of harm to

Baby Jesse.

              Q. Now, can you tell us how that addressed
              the risk   . . . that this baby could be
              harmed[?]




                                               16                                    A-3717-13T2
             A. The    . . . fact that . . . all the
             parties involved voluntarily agreed . . .
             they would comply with the . . . plan. And
             this [was] . . . [the] last chance to
             maintain this child in his own family
             environment.

         Plaintiff confirmed that Umetiti told all those who signed

the case plan that J.V. was not permitted to be alone with Baby

Jesse.      Although not explicitly stated, plaintiff inferred that

as   a    signatory     to   the   case   plan,   she   was    the   only   adult

authorized to care for the baby while Vivian was at work.                   Thus,

on the day she signed the case plan, plaintiff called Ugo and

Linda to make sure they knew J.V. was not allowed to be alone

with the baby.          On cross-examination, plaintiff also testified

that she told the manager of the Dunkin Donuts where Vivian

worked that the Division was investigating the baby's bruises.

             I told [the manager] listen, the baby appear
             [sic] with bruises, okay? They investigates
             [sic]. DYFS is investigating. If they find
             out something they might remove the baby . .
             . and I want to try to help her.     And [the
             manager] told me she haven't come here
             [sic]. . . . I don't know what's wrong with
             her[;] she's missing some days on the job.

             [(Emphasis added).]

         At the conclusion of their meeting on                Friday,   June 12,

2009, Vivian and J.V. left the Division conference room with

Baby      Jesse   and   thereafter    refused     to    permit    plaintiff     to

babysit.      In fact, Vivian cut off all contacts with her mother




                                          17                             A-3717-13T2
from     this    point      forward.       Plaintiff      testified         that     she

repeatedly      attempted     to   contact     Vivian    over     the   weekend      and

received no response.           Her phone calls rang unanswered without

an     automatic     call-back       message    or      personalized        greeting.

Plaintiff       testified    she   decided     to   return    to   the   Division's

Union County office to inquire.

       Plaintiff     claimed       she   discussed      the   situation       with     a

Division representative named Deborah Powell, who assured her

she would investigate and "everything [was] going to be taken

care of[.]"        Powell testified to having no recollection of ever

meeting plaintiff or discussing any aspect of the case with her.

Plaintiff finally spoke to Umetiti who told her Vivian and J.V.

had relocated to another apartment and he was not at liberty to

disclose their location.             Umetiti also told plaintiff that he

had seen the baby.

       Despite     Vivian's    wishes,     plaintiff      attempted      to    obtain

legal custody of the child.              Plaintiff also reported the matter

to the Union County Prosecutor's Office (UCPO).                    Sergeant Joseph

Genna of the UCPO Child Abuse Unit was assigned to investigate

the matter.        Genna testified that plaintiff told him "she had

notified [the Division] and had not heard anything."                               Genna

agreed    with    plaintiff's      counsel     that   when    a    doctor    believes

"there's a suspicion of child abuse[,]" either the Division or




                                          18                                  A-3717-13T2
the hospital is required to contact the prosecutor's office.

Genna    did   not     provide     any    legal       basis    to     support        this

contention.7

       Sometime between June 17, 2009, and June 23, 2009, Genna

contacted Umetiti, who sent him the Division report documenting

plaintiff's     initial       allegations.            Although      the     testimony

concerning Genna and Umetiti's conversation is inconsistent, the

record    shows       the    Division     had     not      yet      completed         its

investigation.        The UCPO did not file criminal charges against

J.V. at this time.

       On June 18, 2009, plaintiff called Umetiti and told him she

had not seen the baby for six days.                Although she did not have

any    evidence,   she      suspected    J.V.   was    babysitting        the    child.

That    same   day,    Umetiti    made    a     surprise      visit    to   Vivian's

apartment in response to plaintiff's concerns.                   He found Vivian,

J.V., and the baby in the apartment.                  "The baby looked fine."

Umetiti asked Vivian to explain why she was not bringing the

baby to her mother as she had agreed to do in the case plan.

7
  N.J.S.A. 9:6-8.10 states: "Any person having reasonable cause
to believe that a child has been subjected to child abuse or
acts of child abuse shall report the same immediately to the
Division of Child Protection and Permanency by telephone or
otherwise." (Emphasis added).   The Supreme Court has construed
this statute to impose a "universal obligation to report child
abuse whenever a person forms a reasonable belief that a child
has been subjected to child abuse." L.A. v. N.J. Div. of Youth
and Family Servs., 217 N.J. 311, 316 (2014).



                                         19                                     A-3717-13T2
Vivian told him "she [couldn't] trust her mom anymore," because

"she [didn't] know what her intentions [were]."                       According to

Umetiti, Vivian feared her mother was plotting to take her son

from her.     She told Umetiti that plaintiff had gone to the

Dunkin Donuts where she worked and told her manager that the

Division was "in the process of taking her child away."                       Vivian

told Umetiti that she was using her father and stepmother, who

lived in Jersey City, to babysit while she was in school and at

work.

    Umetiti testified that while he was at the apartment, he

asked Vivian to contact her father, Ugo.                  Umetiti spoke to Ugo

and explained the situation to him.                     According to Umetiti's

testimony,   Ugo     told     him   he    had    no    problem    babysitting      his

grandson.    He also stated his wife Linda was willing to take on

the responsibility when he was unavailable.                      Umetiti asked to

speak to Linda, but Ugo told him she did not speak English.

Umetiti   asked    Ugo   to    explain     the    situation      to   her   and   then

listened while Ugo spoke to his wife in Spanish.                        During the

phone conversation, Umetiti obtained Ugo and Linda's dates of

birth and social security numbers for the purpose of conducting

a criminal background check.

    Umetiti       documented    the      June    18,   2009   visit    to   Vivian's

apartment in an initial contact sheet he created on June 23,




                                          20                                 A-3717-13T2
2009.      The sheet showed Ugo and Linda's social security numbers

and     dates     of    birth,          but    did     not    contain     any    information

regarding Umetiti's conversation with Ugo.                              At trial, Umetiti

testified that he wrote this information in his notebook on July

20, 2009, four days after J.V. assaulted Baby Jesse.

      On    June       22,    2009,       Umetiti       filed    an     "urgent"     referral

request for a "needs assessment."                       When asked to explain why he

had   marked      the    request          as   "urgent,"        Umetiti       stated:    "[T]he

thinking that went into that is the fact that [J.V.] was said to

be bipolar."            Umetiti also wanted to determine if the child

needed additional services from the Division.                           On June 24, 2009,

Umetiti     reported         to    Vivian's      apartment       to    perform     the     needs

assessment.         He was accompanied by Lorraine Perkins, a nurse

employed by the University of Medicine and Dentistry of New

Jersey (UMDNJ) and assigned under contract to the Division.                                   The

assessment was not done that day because Vivian                                  had already

taken the baby to her father's house and was preparing to leave

for work.

      Umetiti and Nurse Perkins returned to the apartment on June

26, 2009.         They found the baby properly dressed.                          His eyes no

longer exhibited the redness that prompted the hospital visit on

May   28,    2009,      and       his    bruises       were   barely      visible.         Nurse

Perkins     did    not       find       any    signs    of    injury     or     mistreatment.




                                                 21                                     A-3717-13T2
Umetiti observed J.V. laying on a mattress and "relaxing."                                  He

did     not     exhibit       any     signs       of    inebriation,          anxiety,       or

depression.       Umetiti found that J.V.'s demeanor did not indicate

any reason for concern.                However, Umetiti also noticed J.V.'s

indifference as to what was going on with his son.                            According to

Umetiti, it was as if "he [didn't] want to be bothered with . .

. what we [were] doing."                   The visit lasted between thirty to

forty-five minutes.

       Umetiti     did       not    receive   a    written       report      memorializing

Nurse     Perkins's          findings.        Instead,         they    discussed         their

observations orally.                Nurse Perkins noted the baby's eyes were

"tracking[,]" meaning the child moved his eyes to follow items

placed    within       his    field    of   vision.        The    only       concern     Nurse

Perkins       raised    related       to    the    presence      of    a    caged    ferret.

Vivian and J.V. reassured her that the animal was never let out

of its cage.

       Plaintiff testified that Umetiti called her to tell her

Baby Jesse was fine.                Plaintiff continued to call Umetiti each

day and received the same answer: The investigation was not yet

complete.       On June 26, 2009, Umetiti told plaintiff he was going

on    vacation,    and        his    supervisor        would    take       over    the   case.

Umetiti and Nurse Perkins reported their findings to Umetiti's

supervisor       that    same       day.      On   July    1,     2009,      the    Division




                                              22                                     A-3717-13T2
received the report of the drug screening tests performed on

Vivian and J.V..             The results were negative.

                                            II

                       July 16, 2009 Assault on Baby Jesse

      On     July      16,    2009,   Vivian     dropped     her    son    off    at    her

father's house to report to work.                    The Division-sponsored case

plan had expired by then.               No one from the Division had checked

on Baby Jesse from June 26, 2009 to July 16, 2009.                                 Vivian

testified that she was aware the case plan had expired on June

30,   2009,      but     she    nevertheless      continued        to   follow     it     as

modified.        Ugo and Linda agreed to substitute for plaintiff and

assumed the responsibility to care for Baby Jesse at night while

Vivian     was    at    work.       Linda   testified       that   no     one    from   the

Division ever spoke to her about any concerns associated with

leaving the baby with J.V..                   Furthermore, Linda also claimed

neither Vivian nor Ugo told her about these concerns.

      Vivian's         testimony      corroborated     Linda's      understanding         of

the   role    she      and    her   husband    Ugo   were    expected      to    play    in

assisting Vivian with the care of Baby Jesse.

      Vivian conceded that she never saw her father or his wife

actually look at the case plan or read its content; she also

never told them why the case plan had been put into place.




                                            23                                    A-3717-13T2
    On July 16, 2009, Vivian was uncharacteristically running

late to pick up her son from Linda's house.          She called her

father at his work and told him she would be late because her

relief had not yet arrived.   She asked him if Linda could watch

the baby a little longer, until she arrived home.      Ugo testified

that after he spoke to his daughter, he called his wife Linda

and told her to "hold the baby until [Vivian] gets there to pick

him up."

    A short time thereafter, Vivian received a phone call from

Linda.     Vivian testified as to the content of this telephone

conversation and the tragic chain of events that followed it:

           VIVIAN: [Linda] told me she wanted to wash
           the car, so it was too sunny, since it was
           summer outside, and she didn't want to leave
           the baby in the sun too much -- too long.
           So she asked if she could leave the baby
           with [J.V.].

           Q. So, she called you back in order to ask
           your permission?

           VIVIAN: Well, she was letting me      know that
           if I were to come within a certain    amount of
           time that she would leave the baby    . . . she
           was asking me, yes, to leave the      baby with
           [J.V.].

                . . . .

           Q. And did you tell her it was okay or not?

           VIVIAN: I did tell her it was okay.

           Q. And -- how long did you think it was
           going to be before you got home?



                                24                           A-3717-13T2
              VIVIAN: I hoped within 20 minutes.  But I
              said a little less than the actual time,
              just so it [didn't] seem that long.

              Q. All right. And . . . then you received a
              subsequent call while you were going home.
              Is that right?

              VIVIAN: Yes.

              Q. From your dad?

              VIVIAN: Yes.

              Q. He told you to go to the hospital?

              VIVIAN: Yes.

              Q. Something had happened?

              VIVIAN: Yes.

                                      III

                   The Statutory Framework of The DCPP

      The Division's "statutory mission is to protect the health

and welfare of the children of this state."                  N.J. Div. of Youth

&   Family    Servs.   v.    E.B.,   137    N.J.    180,    184   (1994)   (citing

N.J.S.A. 30:4C-4).          In carrying out this great responsibility,

the Division's paramount concern is the safety of the children

it serves, and its primary consideration is the children's best

interests.       N.J.S.A. 9:6-8.8(a).         The Legislature enacted our

State's      child-welfare    laws   to    strike    a     balance   between     two

competing public policy interests: a parent's constitutionally

protected right "to raise a child and maintain a relationship



                                       25                                  A-3717-13T2
with that child, without undue interference by the state," and

"the    State's    parens     patriae      responsibility       to    protect       the

welfare of children."          N.J. Div. of Youth & Family Servs. v.

A.L., 213 N.J. 1, 18 (2013) (citations omitted).

       To safeguard these interests, the Legislature enacted two

parallel statutory schemes: Title 9 and Title 30.                     Ibid.      Title

9 is intended to address cases in which children are abused and

neglected.     N.J. Div. of Youth & Family Servs. v. P.W.R., 205

N.J. 17, 31 (2011).         Its "overriding purpose . . . is to assure

that the lives of innocent children are immediately safeguarded

from further injury and possible death and that the legal rights

of such children are fully protected."                 N.J. Div. of Child Prot.

& Permanency v. E.D.-O., 223 N.J. 166, 187 (2015) (internal

quotation marks omitted) (quoting N.J.S.A. 9:6-8.8(a); State v.

P.Z., 152 N.J. 86, 96–99 (1997)).

       Title   9   also    imposes    a   duty    on    the   State    to     protect

children "who have had serious injury inflicted upon them by

other than accidental means."              N.J.S.A. 9:6-8.8(a).             Although

the statute authorizes the removal of children from their homes

when such removal is in their best interests, the Division is

also obligated to determine what reasonable efforts can be made

to   keep   families      unified    without     compromising    the    children's

safety.




                                          26                                  A-3717-13T2
               In any case in which the division accepts a
               child in care or custody, the division shall
               make reasonable efforts, prior to placement,
               to preserve the family in order to prevent
               the need for removing the child from his
               home. After placement, the division shall
               make reasonable efforts to make it possible
               for the child to safely return to his home.

               [N.J.S.A. 9:6-8.8(b)(2) (emphasis added).]

Thus, whether prior to or after a child's removal, the Division

remains legally bound to explore any reasonable measures that

may   accomplish     the    twin     goals    of   ensuring    child    safety   and

promoting family unity.

      Upon receipt of a report of child abuse under N.J.S.A. 9:6-

8.10, the Division is obligated to respond and

               immediately take such action as shall be
               necessary to insure the safety of the child
               and to that end may request and shall
               receive appropriate assistance from local
               and State law enforcement officials. A
               representative of the division or other
               designated   entity    shall   initiate  an
               investigation within 24 hours of receipt of
               the report, unless the division or other
               entity authorizes a delay based upon the
               request of a law enforcement official.

               [N.J.S.A. 9:6-8.11 (emphasis added).]

Thus,    the    Division,     acting    through     its   caseworkers,    has    the

statutory authority to take the measures required to ensure the

child's safety, including removing the child involuntarily from

the     custody    of   his     or     her    biological      parents    or   legal




                                         27                                A-3717-13T2
guardian(s) on an emergent basis.8         N.J.S.A. 9:6-8.18.       This form

of protective custodial arrangement cannot "exceed three court

days[]" and can be terminated earlier "at the discretion of the

reporting   physician,    director    or   appropriate    official      of    the

Division[,] . . . or upon order of the court."                 N.J.S.A. 9:6-

8.19(c) (emphasis added).

      Once the Division involuntarily removes a child from the

custody of a parent or legal guardian, Rule 5:12-1(a) requires

the   Division   to   bring   a   complaint    for   removal   as   a   summary

proceeding pursuant to Rule 4:67.             N.J. Div. of Youth & Family

Servs. v. J.Y., 352 N.J. Super. 245, 258–59 (App. Div. 2002).

At this procedural phase, the Division must prove to the Family

Part, by a preponderance of the evidence, that:

            1) the parent or other person legally
            responsible for the child's care is absent
            or, though present, was asked and refused to
            consent to the temporary removal of the
            child and was informed of an intent to apply
            any order applicable under this section [of
            the statute];

            2) the child appears so to suffer from abuse
            or neglect of his parent or guardian that
            his immediate removal is necessary to avoid
            imminent danger to the child's life, safety
            or health; [and]




8
  The Division's authority to take emergent custody of a child is
known as a "Dodd removal."    See P.W.R., supra, 205 N.J. at 26
n.11.



                                      28                                A-3717-13T2
              3) there is not enough                    time    to     hold    a
              preliminary hearing.

              [Ibid. (quoting N.J.S.A. 9:6-8.28).]

       Title      30     provides      the   legal     framework       for    guardianship

proceedings through which the Division may seek to terminate

parental rights.               See N.J. Div. of Youth & Family Servs. v.

R.D., 207 N.J. 88, 110–11 (2011).                       Our Supreme Court recently

examined      the      multi-step       process      the    Division     must      undertake

under   Title       30    to    "intervene      with    a    family    in     need   of    its

assistance[.]"            N.J. Div. of Youth and Family Servs. v. I.S.,

214 N.J. 8, 34, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187

L.   Ed.     2d   380     (2013).       That    process       may    also     lead   to    the

involuntary "removal of a child from the custodial parent and

placement in the Division's custody."                        Ibid.      The Court noted

that "the initial step involves a referral to the Division,"

which "must be of a specific sort[.]"                           Ibid.         This initial

complaint may be made by "any person" when it "appear[s]" that a

child's parent or lawful guardian is "unfit" or has failed "to

ensure the health and safety of the child, or is endangering the

welfare of such child[.]"               Ibid. (quoting N.J.S.A. 30:4C-12).

       When the Division receives such a complaint, it is legally

bound to investigate.               If circumstances warrant, the Division

must afford the child's parent or guardian an opportunity "to

file    an   application         for    care    under       N.J.S.A.    30:4C-11,       which



                                               29                                    A-3717-13T2
would      result     in     converting     the     matter     into     a    voluntary

placement.       On the other hand, if a parent or guardian acts to

impede the Division's investigation, the Division may obtain the

necessary relief from the family court."                   Ibid. (emphasis added)

(citing N.J.S.A. 30:4C-12).

       Once it has completed the investigation, the Division must

determine whether "the child requires care and supervision by

the [D]ivision or other action to ensure the health and safety

of   the    child[.]"         Ibid.     (quoting     N.J.S.A.   30:4C-12).               The

statute also empowers the Division to apply "to the Family Part

of the Chancery Division of the Superior Court in the county

where the child resides for an order making the child a ward of

the court and placing the child under the care and supervision

or custody of the [D]ivision."                   Ibid. (quoting N.J.S.A. 30:4C-

12).       The   Family      Part    thereafter      may   discharge        its    parens

patriae responsibility while providing the due process of law

necessary to protect both the child and his or her parent or

legal guardian from undue governmental interference.

       Here,     Umetiti      and     his    supervisor      were      charged        with

determining      whether      a     four-month-old     infant    was    at        risk   of

continued harm from his father, based on his bruised cheek and

bloodshot eyes.            The record shows the infant's parents sought

timely      medical        attention.        The     child's    eighteen-year-old




                                            30                                    A-3717-13T2
mother's genuine concern for her baby's well-being was never in

question.     Moreover, the father, who was in his early twenties,

cooperated     with    the     Division's         investigation.      The    child's

maternal grandmother alleged the child's father was abusive to

her daughter; she also suspected he was responsible for the

child's     injuries    and    alleged       he    was   suffering    from   bipolar

disorder.

      The medical staff who examined the baby at the hospital

suspected child abuse as a possible cause of the injuries, but

were not definitive in their diagnosis.                  Umetiti was required to

respond to this situation and apply his training and experience

to make a tentative, inherently discretionary decision on how to

proceed.       The     first    phase        of   this   multi-step    process       is

investigatory.        Umetiti began his investigation by interviewing

the relevant parties and reaching a preliminary conclusion that

Baby Jesse was not at immediate risk of harm from his father.

Umetiti marshalled the family's resources and put in place a

voluntary case plan that expressly relied on the cooperation and

good will of all involved.                   The Division also convinced the

child's     parents    to    submit     to    a    substance   assessment,      which

showed negative results for illicit substances.

      This investigation shows that Umetiti and Perez's decisions

and   the    steps     they     took     to       address   the    situation     were




                                             31                              A-3717-13T2
objectively reasonable.         There is also no reason to question

that these two Division employees acted with subjective good

faith.

                                     IV

                             The Tort Claims Act

      The Legislature adopted the TCA in response to the Supreme

Court's abrogation of sovereign immunity under our common law.

See Willis v. Dep't of Conservation & Econ. Dev., 55 N.J. 534,

540–41 (1970).    The Legislature intended the TCA "to serve as a

comprehensive scheme that seeks to provide compensation to tort

victims without unduly interfering with governmental functions

and without imposing an excessive burden on taxpayers."              Parsons

ex rel. Parsons v. Mullica Twp. Bd. of Educ., 226 N.J. 297, 308

(2016) (internal quotation marks omitted) (quoting Bernstein v.

State, 411 N.J. Super. 316, 331 (App. Div. 2010)).                  Thus, in

reviewing plaintiff's cause of action, we are "guided by the

principle that 'immunity for public entities [under the TCA] is

the   general   rule   and    liability   is   the   exception.'"       Ibid.

(quoting Kemp by Wright v. State, 147 N.J. 294, 299 (1997)).

      The words of Chief Justice Weintraub, written more than

half a century ago, capture the essence of the TCA's underlying

public policy:

           A private entrepreneur may readily be held
           [liable] for negligent omissions within the



                                     32                              A-3717-13T2
              chosen ambit of his activity. But the area
              within which [the] government has the power
              to act for the public good is almost without
              limit, and the State has no duty to do
              everything that might be done.     Rather[,]
              there is a political discretion as to what
              ought to be done, as to priorities, and as
              to how much should be raised by taxes or
              borrowed to that end.    If [the] government
              does act, then, when it acts in a manner
              short of ordinary prudence, liability could
              be judged as in the case of a private party.
              So if a road were constructed of a design
              imperiling the user, the issue of fault
              would present no novel problem. But whether
              a road should have four or six or eight
              lanes, or there should be dividers, or
              circles or jughandles for turns, or traffic
              lights, or traffic policemen, or a speed
              limit of 50 or 60 miles per hour -- such
              matters involve discretion and revenue and
              are committed to the judgment of the
              legislative and executive branches.    As to
              such matters, the question is whether a
              judge or jury could review the policy or
              political decisions involved without in
              effect taking over the responsibility and
              power of those other branches.

              [Fitzgerald v. Palmer, 47 N.J. 106, 109–10
              (1966) (citation omitted).]

      Thus,    the   State's      immunity      from    civil    liability     is    not

predicated on a notion of infallibility, but on the judiciary's

inability to enforce any judgment it may render.                      Id. at 108.

The   judiciary      does   not    have   the    constitutional      authority         to

order   the    Legislature        to   appropriate      public    funds   to     pay    a

judgment; nor can it issue a writ of execution upon state-owned

property.      Ibid. (citations omitted).              These fundamental aspects




                                          33                                   A-3717-13T2
of our system of government form the guiding principles for

determining    the    applicability      of    the   TCA    to    this   cause    of

action.

    As our description of the Division's statutory framework

reveals, the circumstances we confront here directly implicate

the immunity the TCA confers on the employees of a governmental

agency     whose   sole   role    is    to     enforce      our    State's     child

protection laws.       Umetiti and Perez's authority to investigate

child abuse allegations and/or remove a child from his home are

carefully    and   expressly     circumscribed       by    the    Legislature    and

subject to judicial scrutiny.           The sole basis upon which these

employees could have removed Baby Jesse was through the legal

authority provided in Title 9 and Title 30.

                                        V

                           Qualified Immunity

    The TCA provides a public employee with immunity for "an

injury caused by his adoption of or failure to adopt any law or

by his failure to enforce any law."              N.J.S.A. 59:3-5; see also

Bombace v. Newark, 125 N.J. 361, 366 (1991) (quoting N.J.S.A.

59:3-5).       This   immunity     is       absolute,      thus    requiring     the

dismissal of a plaintiff's cause of action.                 Reaves v. Dep't of

Law & Pub. Safety, Div. on Civil Rights, 303 N.J. Super. 115,

120 (App. Div.), certif. denied, 152 N.J. 12 (1997); Bombace,




                                        34                                A-3717-13T2
supra, 125 N.J. at 373–74.                However, because defendant did not

raise absolute immunity under N.J.S.A. 59:3-5 as a defense, we

will address the issues under the qualified immunity standard in

N.J.S.A. 59:3-3.

       In contrast to N.J.S.A. 59:3-5, N.J.S.A. 59:3-3 provides

qualified immunity with respect to the enforcement of a law:                               "A

public employee is not liable if he acts in good faith in the

execution or enforcement of any law."                      The qualified immunity

afforded    by    N.J.S.A.       59:3-3      has    two   components.          A    public

employee    is    entitled       to   this     immunity     if    the    employee         can

establish       either    that    his     or      her   conduct    was    "objectively

reasonable" or that he or she acted with subjective good faith.

Fielder    v.    Stonack,    141      N.J.     101,     131–32    (1995)   (citations

omitted).        In determining whether an employee has established

qualified immunity under N.J.S.A. 59:3-3, the court applies the

same   standards     of    objective       reasonableness         that   are       used   in

federal civil rights cases.             Id. at 131–32; see also Wildoner v.

Borough of Ramsey, 162 N.J. 375, 387 (2000).                             If there are

disputed facts that underlie the claim, the TCA's applicability

may require submission to a jury.                   Fielder, supra, 141 N.J. at

132 (quoting Evans v. Elizabeth Police Dep't, 236 N.J. Super.

115, 117 (App. Div. 1983)).




                                             35                                    A-3717-13T2
    A defendant's entitlement to qualified immunity based on

objectively   reasonable   conduct    "is    a   question    of    law     to   be

decided [as] early in the proceedings as possible, preferably on

a properly supported motion for summary judgment or dismissal."

See Wildoner, supra, 162 N.J. at 387 (referring to qualified

immunity claims under 42 U.S.C. § 1983 and observing that the

same standards apply to questions of objective reasonableness

under   N.J.S.A.   59:3-3);   Fielder,      supra,   141    N.J.   at     131–32

(stating public employees are entitled to summary judgment under

N.J.S.A. 59:3-3 if they can establish that their conduct was

objectively reasonable).

    A court must examine whether the actor's allegedly wrongful

conduct was objectively reasonable in light of the facts known

to him or her at the time.      State v. Shannon, 222 N.J. 576, 602

(2015) (quoting State v. Handy, 206 N.J. 39, 46–47 (2011), cert.

denied, ___ U.S. ___, 136 S. Ct. 1657, 194 L. Ed. 2d 800 (2016).

Objective   reasonableness    will    be    established     if    the    actor's

conduct did not violate a clearly established constitutional or

statutory right.     Gormley v. Wood-El, 218 N.J. 72, 113 (2014)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396, 410 (1982)).

    Given the undisputed facts we have described at length, we

are satisfied Umetiti and Perez are covered by the qualified




                                     36                                  A-3717-13T2
immunity in N.J.S.A. 59:3-3.              Umetiti did not fail to enforce

the provisions of Title 9 and Title 30.                     He undertook a course

of action sanctioned by the statutory authority conferred to the

Division under the circumstances.                  Given the child's physical

condition on May 28, 2009, and the availability of his family's

support,    there    was    no    legal       basis    to      consider,   much    less

execute, a Dodd removal.              Even if the Division had unilaterally

taken such a drastic and legally unwarranted action, we are

satisfied, as a matter of law, that the Family Part would have

ordered the Division to return the child to his parents.                             The

terms of the case plan mediated by the Division addressed all of

the concerns known to Umetiti at the time.

       In the interest of clarity, we also address defendants'

good   faith   as    an    alternative         basis     for    applying   qualified

immunity.      A defendant who cannot establish that his or her

conduct was objectively reasonable may still invoke qualified

immunity if his or her actions were carried out in good faith.

Fielder,    supra,        141     N.J.        at   132      (citations     omitted).

Ordinarily,    the   issue       of    good    faith     will    require   a   plenary

hearing to assess the claim's subjective elements.                         Canico v.

Hurtado, 144 N.J. 361, 365 (1996) (citing Fielder, supra, 141

N.J. at 132).        Under these circumstances, however, a public




                                          37                                   A-3717-13T2
employee who establishes he performed his actions in good faith

is entitled to summary judgment as a matter of law.           Ibid.

    This    court   has   previously    reviewed    the    application    of

qualified immunity to the conduct of Division caseworkers, based

on the good faith provision in N.J.S.A. 59:3-3.            In B.F. v. Div.

of Youth & Family Servs., 296 N.J. Super. 372 (App. Div. 1997),

the plaintiffs sought monetary damages for alleged violations of

the Federal Civil Rights Act, 42 U.S.C. § 1983; the New Jersey

Constitution; and various common law torts.              Id. at 377.     The

factual   basis   for   the   plaintiffs'   cause   of    action   was   not

disputed.    The Supreme Court was highly critical of the actions

the Division took during the underlying guardianship case filed

to terminate the plaintiffs' parental rights:

            We are compelled to note that much of the
            bonding that has taken place in this case
            could have been avoided if the [Division]
            had correctly followed its mandate to use
            due diligence and its best efforts to
            reunite children with their natural parents.
            N.J.S.A. 30:4C-15; [N.J.S.A.] 30:4C-58. When
            B.F. requested that K.L.F. be returned to
            her custody, the child had been with her
            current foster parents for only a month.
            When DYFS petitioned for guardianship in
            March 1991, the child had been with the
            foster parents for ten months. Regrettably,
            litigation has extended that period even
            more.   By encouraging her foster parents to
            believe that K.L.F. was on the way to
            becoming their child, and to view their
            interests and those of the child as being
            opposed   to  her   reunification  with  her
            biological parent, DYFS may have increased



                                   38                              A-3717-13T2
            the amount of bonding that has occurred.
            That those in the child welfare system not
            tip the scales and encourage a foster
            parent-child   bond  to   develop  when   the
            natural parent is both fit and anxious to
            regain custody is essential. Indeed, we
            suspect that if the [Division] had allowed
            visitation and begun a process of reuniting
            B.F. with her daughter, it could have helped
            create a bond between the daughter and her
            mother that would have greatly mitigated any
            harm from being removed from foster parents.

            [In re Guardianship of K.L.F., 129 N.J. 32,
            45–46 (1992) (emphasis added).]

    Despite    these   highly    critical     comments    by     our       Supreme

Court, we held the Division caseworkers in B.F. were entitled to

qualified   immunity   under    N.J.S.A.    59:3-3   because     the       Court's

criticism "[did] not amount to charges of 'crime, actual fraud,

actual malice[,] or willful misconduct.'         . . . They are at most

assertions of negligence."       B.F., supra, 296 N.J. Super. at 385–

86 (emphasis added) (quoting N.J.S.A.           59:3-14).9        Relying on

Fielder, supra, 141 N.J. at 123–25, we reaffirmed "that ordinary

negligence is an insufficient basis for holding liable a public

employee involved in the execution of the law under N.J.S.A.

59:3-3."     B.F.,   supra,    296   N.J.   Super.   at   386.         A    public


9
  In pertinent part, N.J.S.A. 59:3-14(a) provides as follows:
"Nothing in this act shall exonerate a public employee from
liability if it is established that his conduct was outside the
scope of his employment or constituted a crime, actual fraud,
actual malice or willful misconduct."




                                     39                                    A-3717-13T2
employee's good faith under N.J.S.A. 59:3-3 is "to be judged in

relation to whether his act violated N.J.S.A. 59:3-14 in that it

involved    'crime,    actual    fraud,       actual   malice[,]       or    willful

misconduct.'"       Ibid. (citing Brayshaw v. Gelber, 232 N.J. Super.

99,   110   (App.   Div.   1989);     Hayes    v.   Mercer   County,        217    N.J.

Super. 614, 619–20 (App. Div.), certif. denied, 108 N.J. 643

(1987)).

      Here,   the     devastating     physical      injuries     and     permanent

cognitive harm to Baby Jesse were caused by the criminal conduct

of his biological father, not by a Division caseworker's good

faith efforts to carry out his statutory responsibilities.

      While   serving      in   the   Law     Division,      Judge     Charles      E.

Villanueva10 considered the application of good faith immunity to

a convoluted cause of action filed against a number of public

defendants, including Division caseworkers, investigators from

the   Attorney      General's    Office,      and   sitting     Superior          Court

judges.     The plaintiffs relied on multiple theories of liability

to support the mother's complaint that the father had sexually

abused their four-year-old daughter.                Delbridge v. Schaeffer,

238 N.J. Super. 323, 328–29 (Law Div. 1989), aff'd sub. nom.,

A.D. v. Franco, 297 N.J. Super. 1 (App. Div. 1993), certif.


10
  Judge Villanueva served in the Appellate Division from 1992 to
1996.



                                        40                                   A-3717-13T2
denied, 135 N.J. 467, cert. denied, 513 U.S. 832, 115 S. Ct.

108, 130 L. Ed. 2d 56 (1994).

      Judge Villanueva granted summary judgment in favor of the

Division caseworkers based on the qualified immunity provided by

N.J.S.A.    59:3-3.      He     found     the   caseworkers'        conduct      was

objectively reasonable.         Id. at 347–50.        All of their actions

were carried out in the execution and enforcement of the laws

pertaining to child abuse.          Id. at 346–48.           Judge Villanueva

provided    the   following    incisive      observations    that    are    highly

relevant to the circumstances we face here:

            If these defendants were not immune and were
            obliged to defend their actions in a civil
            trial (and litigate the same issues already
            litigated, decided and currently on appeal),
            a most chilling effect would be visited upon
            them. When others in the field of preventing
            child abuse learn of this case, it could
            have a catastrophic effect if persons, such
            as these defendants, were held not to be
            immune.   What reasonable DYFS employee, in
            deciding whether to pursue an allegation of
            child abuse, would fail to ask himself
            whether he wants to end up at risk in a
            similar lawsuit?     What is worse, it is
            precisely in those cases (unlike this case)
            where the indications of abuse are subtle or
            sketchy -- and, thus, most in need of
            investigation -- that the chilling effect of
            such a decision will be felt most.

            [Id. at 348–49.]

      Judge Villanueva's admonitions are tragically illustrated

in   this   case.     The     potential      tort   claims   arising       from     a




                                        41                                 A-3717-13T2
particularly   vulnerable     class       of    litigants        can    be    fiscally

ruinous.    The Division is uniquely responsible for protecting

the State's children from abuse and neglect.                      The Legislature

adopted the TCA to protect public funds from being diverted to

underwrite the cost of civil liability in these type of cases.

The Division employees named as defendants in this case are

entitled to immunity under N.J.S.A. 59:3-3 because the record

shows their conduct was objectively reasonable.                    Alternatively,

defendants are entitled to qualified immunity because they acted

with   subjective    good   faith    in     carrying       out    their      statutory

responsibilities.     Our holding based on qualified immunity under

N.J.S.A.    59:3-3   obviates       the     need      to   address          defendants'

remaining   arguments.      For     these      same    reasons,        we    also   deny

plaintiff's cross-appeal.           We thus vacate the final judgment

entered against defendants for $165,972,503, plus $1,432,872.81

for satisfaction of Medicaid claims.

       Reversed.




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