W.R., AS GUARDIAN AD LITEM FOR L.C. AND J.C., minor children v. NEW JERSEY DIVISION OF YOUTH & FAMILY SERVICES (D.F.Y.S.) et al

Filing 88

OPINION. Signed by Judge Joseph E. Irenas on 5/1/2012. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

W.R. as guardian ad litem for
L.C. and J.C., minor children

HONORABLE JOSEPH E. IRENAS

Plaintiff,

CIVIL ACTION NO. 09-288
(JEI/KMW)

v.
OPINION
NEW JERSEY DIVISION OF YOUTH &
FAMILY SERVICES (“DYFS”), et
al.
Defendants.

APPEARANCES:
BARRY, CORRADO, GRASSI & GIBSON, P.C.
Joseph C. Grassi
2700 Pacific Avenue
Wildwood, NJ 08260
Counsel for Plaintiff
STATE OF NEW JERSEY DEPT OF LAW AND PUBLIC SAFETY
Kathleen M. Bartus
Richard J. Hughes Justice Complex
CN 116
Trenton, NJ 08625
Counsel for DYFS, Charles Venti, Gwenette Hillman, and
Eladia Gonzalez
LEARY, BRIDE, TINKER & MORAN, P.A.
Glenn R. Moran
7 Ridgedale Avenue
Cedar Knolls, NJ 07927
Counsel for Renee Fountain
Dwayne Wynne
3122 Freemont Avenue
Camden, NJ 08105
Pro se
IRENAS, Senior District Judge:

1

Presently before the Court are two motions for summary
judgment. (Dkt. Nos. 76, 78) In response, Plaintiff has
voluntarily withdrawn every claim except for two counts of
negligence against the minor children’s foster mother, Defendant
Renee Fountain.1 For the following reasons, the motions will be
granted.

I.
Between September 19, 2000 and January 14, 2002, the new
Jersey Division of Youth and Family Services (“DYFS”) placed J.C.
and L.C. - aged six and eight respectively - in Defendant
Fountain’s foster care. (Pl.’s Facts at ¶ 1)2 In the summer of
2000, Fountain began dating Gilbert Harden. (Id. at ¶¶ 10-12) In
the basement of the Harden home lived Defendants Dwayne Wynne and
Vivian Moore. (Id. at ¶ 10) Fountain has known Wynne for many
years and a reasonable inference can be made that Fountain knew
of Wynne’s prior convictions and incarcerations.3 (Id. at ¶¶ 19,
23-27)
On several occasions, Fountain brought the minor children to

1

This Court exercises its discretion to retain subject matter
jurisdiction despite only state law claims remaining. See 28 U.S.C. §
1367(c)(3).
2

Citations to “Facts” refer to the parties’ obligation to submit
statements of material facts not in dispute pursuant to L.Civ.R. 56.1 with
summary judgment motions.
3

Wynne does not have prior convictions for sexually related crimes.

2

stay at Harden’s house overnight, in part, to play with Harden’s
minor child. (Id. at ¶¶ 39-40, 42) While at these slumber
parties, Wynne is alleged to have sexually abused the minor
children multiple times. (Id. at ¶¶ 52-56) Though the minor
children reported the incidents to Fountain after the abuse
occurred, she did not contact DYFS or otherwise seek the help of
state protective services. (See Pl.’s Br. Appx., Exs. G, K) DYFS
was not alerted until late February 2002, when the minor
children’s grandmother learned of the abuse. (Id. at Ex. L)

II.
“[S]ummary judgment is proper ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P.
56(c)). In deciding a motion for summary judgment, the Court must
construe the facts and inferences in a light most favorable to
the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794
F.2d 860, 864 (3d Cir. 1986).
“‘With respect to an issue on which the non-moving party
bears the burden of proof, the burden on the moving party may be
discharged by ‘showing’ – that is, pointing out to the district
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court – that there is an absence of evidence to support the
nonmoving party’s case.’” Conoshenti v. Public Serv. Elec. & Gas,
364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477 U.S. at
323). The role of the Court is not “to weigh the evidence and
determine the truth of the matter, but to determine whether there
is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).

III.
The two remaining counts against Fountain allege negligent
supervision. Because the counts do not seem to differ in their
allegations against Fountain, and Plaintiff does not argue
otherwise, the Court will treat the two counts as asserting one
claim for negligent supervision.
In support of her Motion, Fountain argues that she is
protected by parental immunity. “[T]he doctrine of parental
immunity ... preclude[s] liability in cases of negligent
supervision, but not for a parent’s willful or wanton failure to
supervise his or her children.” Thorpe v. Wiggan, 405 N.J.Super.
68, 72 (App.Div. 2009) (quoting Foldi v. Jeffries, 93, N.J. 533,
549 (1983). To establish willful or wanton conduct, “it must
appear that the defendant with knowledge of existing conditions,
and conscious from such knowledge that injury will likely or
probably result from his conduct, and with reckless indifference
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to the consequences, consciously and intentionally does some
wrongful act or omits to discharge some duty which produces the
injurious result.” Foldi, 93 N.J. at 549 (quoting McLaughlin v.
Rova Farms, Inc., 56 N.J. 288, 305-06 (1970). “[W]here willful
and wanton conduct is not at issue, the immunity will only apply
if a defendant’s conduct implicates customary child-care issues
or a legitimate exercise of parental authority or supervision.”
Thorpe, 405 N.J.Super. at 72.
Here, the undisputed facts indicate that Fountain authorized
her children to have a slumber party with her paramour’s minor
child. Fountain had no prior knowledge of Wynne’s sexual
predatory behavior. Even inferring that Fountain knew of Wynne’s
criminal history, including a felony robbery conviction, nothing
suggests that Fountain had reason to suspect that her foster
children were in danger of being sexually molested.4 Accordingly,
Fountain leaving the foster children unmonitored in her
paramour’s home was a customary child-care decision that can
scarcely be said to be a wanton decision. To hold otherwise would
subject parents to liability for the misconduct of all friends
and acquaintances left temporarily unaccompanied with minor
children.

4

Plaintiff’s arguments to the contrary notwithstanding, Fountain’s
previous romantic relationship with Voyce Smith who allegedly sexually abused
one of Fountain’s foster children does not establish liability in this case.
DYFS ultimately found the claims against Fountain to be unfounded, though
Smith was later incarcerated for endangering the welfare of a child.

5

Furthermore, Fountain’s failure to report the abuse, though
deplorable, did not cause further abuse. Fountain only learned of
Wynne’s alleged crimes after the last instance of abuse. Despite
the tragic injuries alleged in this case, there is no legal basis
to hold Fountain liable. As all other claims have been
voluntarily withdrawn, the Court has no choice but to grant the
motions for summary judgment.

IV.
For the reason set forth above, the motions for summary
judgment will be granted.

Dated: 5/1/12

/s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

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