                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0678-15T2

ROBERTA DIEUJUSTE,
individually and as
Administrator Ad
Prosequendum of the
Estate of David Pierre,
and ERNST PIERRE, and
ROBERTA DIEUJUSTE and
ERNST PIERRE, as natural
parents of W.P., E.P.,
David Pierre, A.P., and J.P.,
and ROBERTA DIEUJUSTE, as the
natural mother of V.M.,1

        Plaintiffs-Appellants,

v.

DIVISION OF YOUTH AND
FAMILY SERVICES,

        Defendant-Respondent.

___________________________________________

              Argued April 25, 2017 – Decided           August 1, 2017

              Before Judges Espinosa and Grall.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-2792-
              11.


1
   We use initials for the surviving minor children to protect
their privacy.
           Robert   A.   Vort   argued     the   cause    for
           appellants.

           Ashley Gagnon, Deputy Attorney General, argued
           the cause for respondent (Christopher S.
           Porrino, Attorney General, attorney; Melissa
           H. Raksa, Assistant Attorney General, of
           counsel; James A. McGhee, Deputy Attorney
           General, on the brief).

PER CURIAM

     Plaintiffs   Roberta   Dieujuste    and   Ernest   Pierre   are   the

parents of David Pierre, a four-year-old developmentally disabled

child who died while in the care of a foster mother, Taleka

Harriet, licensed by the Division of Youth and Family Services

(DYFS).2   They brought this wrongful death action3 against DYFS and

now appeal from an order that granted summary judgment to DYFS,

dismissing their complaint.     We affirm.

     We need not recite the facts regarding David's tragic drowning

in Harriet's bathtub.    It is sufficient to note that, following

its investigation, DYFS determined that Harriet's "actions placed

David Pierre at some risk of harm but did not meet the statutory




2
   DYFS is now known as the Division of Child Protection and
Permanency.
3
    The complaint also alleged that DYFS wrongfully retained
plaintiffs' five children following a Dodd removal pursuant to
N.J.S.A. 9:6-8.29 and 9:6-8.30. Plaintiffs have not appealed from
the trial judge's dismissal of this count.


                                  2                               A-0678-15T2
requirement to find neglect."        Harriet's license to serve as a

resource provider was revoked thereafter.

     Plaintiffs   did   not   file       any   action   against   Harriet.

Plaintiffs argue, however, the Family Part's award of "care,

custody and supervision" of David to DYFS following the Dodd

removal created a non-delegable duty that rendered DYFS liable for

Harriet's negligence.   They also argue that liability is properly

imposed upon DYFS because Harriet was an employee of DYFS, rather

than an independent contractor.          We are not persuaded by these

arguments.

      As a governmental body, DYFS enjoys general immunity under

the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

The TCA provides general immunity for all governmental bodies

except in circumstances where the Legislature has specifically

provided for liability.   See N.J.S.A. 59:1-2, :2-1; see also Bell

v. Bell, 83 N.J. 417, 423 (1980).          Thus, "immunity is the norm,

unless liability is provided for by the [TCA]."             Davenport v.

Borough of Closter, 294 N.J. Super. 635, 637 (App. Div. 1996).

     N.J.S.A. 59:2-1(a) states:

          Except as otherwise provided by this act, a
          public entity is not liable for an injury,
          whether such injury arises out of an act or
          omission of the public entity or a public
          employee or any other person.

          [(Emphasis added).]

                                     3                             A-0678-15T2
     N.J.S.A. 59:1-3 defines "employee" under the TCA:

           "Employee" includes an officer, employee, or
           servant, whether or not compensated or part-
           time, who is authorized to perform any act or
           service; provided, however, that the term does
           not include an independent contractor.

     In Estate of Kotsovska ex rel. Kotsovska v. Liebman, the

Supreme Court observed:

           Our courts have utilized two different but
           related tests to distinguish employees from
           independent contractors: (1) the "control
           test," which "is grounded in the common law
           master-servant relationship"; and (2) the
           "relative nature of the work test," which is
           used in "various situations in which the
           control   test  does   not  emerge  as   the
           dispositive factor."

           [221 N.J. 568, 592 (2015) (citation omitted).]

     The   Court   explained   that,   under   the   control   test,   "the

factfinder considers the extent of the employer's right to control

the work of the employee." Id. at 593. The "variety of employment

conditions" to be considered include "'the degree of control

exercised by the employer over the means of completing the work,'

'the source of the worker's compensation,' 'the source of the

worker's equipment and resources,' 'the employer's termination

rights,' as well as the 'right of termination' and the 'method of

payment.'"   Ibid. (citations omitted).        "The greater the degree

of control exercised by the employer, the more likely the worker



                                   4                               A-0678-15T2
will be considered an employee." Id. at 593 (quoting Lowe v.

Zarghami, 158 N.J. 606, 616 (1999)).

     In   New   Jersey   Property-Liability   Insurance   Guaranty

Association v. State, 195 N.J. Super. 4 (App. Div.), certif.

denied, 99 N.J. 188 (1984) [hereinafter NJ-PLIGA], we addressed

the question whether foster parents were public employees under

the TCA, and held the control test was "the proper standard to

determine whether the . . . foster parents . . . are employees of

the state as defined in N.J.S.A. 59:1-3," id. at 11.

     In applying that test, we reviewed the statutory definition

of foster parent, N.J.S.A. 30:4C-2(h), the responsibilities of the

foster parent, the maintenance payments DYFS was authorized to

give to foster parents for the benefit of the child in placement

pursuant to N.J.S.A. 30:4C-27, and the written agreements between

DYFS and the foster parents, which include the foster parents'

agreement to consult with a DYFS caseworker before making important

decisions.   Id. at 12-13.   We found, "these circumstances do not

denote a degree of control by DYFS over foster parents sufficient

to confer employee status . . . under the [TCA]."   Id. at 13.     We

noted further that, under the agreement with DYFS, the foster

parents' role is "more akin to that of independent contractors."

Id. at 14.



                                 5                          A-0678-15T2
      In Stanley by Stanley v. State Industries, Inc., 267 N.J.

Super. 167 (Law Div. 1993), the trial court relied on our holding

in NJ-PLIGA to conclude DYFS could not be held vicariously liable

for the negligence of a foster parent under the doctrine of

respondeat superior because there was insufficient evidence of

control for the foster parent to be an employee of DYFS.               Id. at

171-72.

      Relying upon our decision in NJ-PLIGA and the trial court's

decision in Stanley, the trial judge here rejected plaintiffs'

arguments that Harriet was an employee of DYFS as defined in the

TCA   and   that   DYFS   could   be    held   vicariously   liable   for   her

negligence.    Plaintiffs acknowledge these cases support the trial

judge's analysis, but contend the persuasive force of these cases

has been diminished by later cases decided by the Supreme Court

and the Appellate Division.            To support this argument, they cite

D'Annunzio v. Prudential Insurance Co. of America, 192 N.J. 110

(2007), and Pukowsky v. Caruso, 312 N.J. Super. 171 (App. Div.

1998), both of which address the appropriate test to apply in

determining whether an individual has the requisite status to

bring a claim under the Conscientious Employee Protection Act

(CEPA), N.J.S.A. 34:19-1 to -14.

      In NJ-PLIGA, supra, we acknowledged that "use of the control

test to determine whether one is an employee for purposes of social

                                         6                            A-0678-15T2
legislation such as the Workers' Compensation Act is inapposite

because '[the basic purpose for which the definition is used in

compensation       law    is    entirely    different     from    the       common-law

purpose].'"        195    N.J.    Super.    at    9   (alteration      in    original)

(emphasis   omitted)          (citation    omitted).      CEPA    is    also    social

legislation that advances its own unique purpose.                       D'Annunzio,

supra, 192 N.J. at 119.            That a different test may be applicable

in determining whether a person is an employee under CEPA provides

no reasonable basis for abandoning our holding in NJ-PLIGA that

the control test applies and that foster parents are not employees

of DYFS.

     Plaintiffs also argue DYFS had a "non-delegable duty" that

renders it liable for the negligence of foster parents.                          Other

than as a vehicle for the imposition of liability, plaintiffs have

not identified the scope of the "non-delegable duty" they assert

existed    here.         In    opposing    DYFS's     summary    judgment      motion,

plaintiffs clarified that they did not allege DYFS was negligent

in authorizing Harriet to care for medically fragile children, for

failing to inspect the home properly or for failing to visit the

home sufficiently frequently.4                 Clearly, DYFS must perform its


4
    Plaintiffs suggest that DYFS's failure to require resource
parents to secure general liability insurance constitutes
negligence.   This argument was quite properly rejected by the
trial court as unsustainable under the TCA.

                                           7                                   A-0678-15T2
duties responsibly but there is no authority or legal standard in

New Jersey that requires it to be a guarantor that no harm will

befall children it has placed in resource homes. Having identified

no lapse in the performance of duties assigned to DYFS by statute

or regulation, plaintiffs' argument that DYFS breached a non-

delegable duty here lacks merit.

     Affirm.




                                8                          A-0678-15T2
