This action, filed on May 26, 2004 in the U.S. District Court for the District of New Jersey, was brought by three adopted children placed in an abusive and neglectful home by the New Jersey Division of Youth and Family Services (DYFS). The plaintiffs were represented by private counsel and Children's Rights, Inc.; they sought compensatory and punitive damages, claiming that the state violated their federal and state civil rights by placing them in a foster-turned-adoptive home (approved and monitored by the DYFS) that systematically starved and otherwise neglected them. Not long after the case was filed, a guardian ad litem from Children's Rights was named for the plaintiffs.

In 2003, B.J. (the plaintiffs' oldest brother) was found looking for food in his neighbor's trash. B.J. was 19 years old but weighed only 45 pounds. Shortly thereafter, the police entered his home and discovered 3 other adopted boys, the plaintiffs in this case, all of whom were extremely underdeveloped (K.J., age 14, weighed 40 pounds; T.J., age 10, weighed 28 pounds; M.J., age 9, weighed 23 pounds). Upon the police's discovery, DYFS removed the plaintiffs from the home that day. (note: the DYFS had visited the home over 38 times within the past 4 years and were aware of the plaintiffs' living conditions)

The complaint alleged that the defendants, having placed the plaintiffs in their foster care custody, had a special relationship with the plaintiffs that imposed upon the state an affirmative duty to care for and protect the plaintiffs from harm; that the defendants failed to adequately screen, approve, and monitor the foster home in order to ensure the plaintiffs' safety and welfare, despite the repeated signs and observations indicating that the plaintiffs were not receiving adequate care; that the acts and omissions of the defendants were a substantial departure from the exercise of reasonable professional standard and amounted to deliberate indifference to the plaintiffs' welfare; that the defendants did not adequately train or supervise employees handling such cases; that the defendants' conduct placed the plaintiffs in state-created dangers; that the defendants failed to regularly visit the plaintiffs; that the defendants failed to conduct a pre-adoptive and post-adoptive home study; that the defendants failed to investigate suspected child abuse reports regarding the plaintiffs; and that the defendants discriminated against the plaintiffs on the basis of their perceived handicaps. All this, the plaintiffs said, violated federal Substantive Due Process and Procedural Due Process, state Substantive Due Process and Procedural Due Process, the state's Violation of Child Placement Bill of Rights Act, the state's Tort Claims Act, the state's Law Against Discrimination, and various state adoption and regulation laws.

The requested relief included compensatory damages, punitive damages, reasonable attorneys' fees and costs, and prejudgment interest.

On April 6, 2005, the court denied the defendants' Motion to Dismiss with respect to counts under Section 1983, the New Jersey Child Placement Bill of Rights, and the New Jersey Tort Claims Act. However, plaintiffs' counts under the New Jersey Constitution, the New Jersey statutes and regulations, and the Law Against Discrimination were dismissed for failure to state a claim.

The parties reached a settlement agreement on September 30, 2005, awarding a sum of $7,500,000 to the plaintiffs, without any admission of liability by any party. The settlement amount was inclusive of attorneys' fees. The settlement also ensured that the guardian ad litem (GAL) would attempt to obtain educational services from the children's local school districts for the plaintiffs (including 10 hours per month of cognitive remediation therapy, 1 hour per week of vocational therapy, 1 hour per week of occupational therapy, and 4 hours per week of one-on-one academic tutoring), and that until the plaintiffs exited the custody of DYFS, the state would provide the GAL, on a bi-monthly basis, with updated records regarding each plaintiff. The defendants also agreed to provide each plaintiff with a Medicaid card entitling them to benefits under Medicaid "Family Care Plan A," from the date of the settlement agreement to the date each plaintiff reaches age 21, and to waive any and all Medicare liens. The court approved this settlement in its entirety on November 30, 2005.

While the settlement agreement was pending in early November, B.J., the oldest brother who was not a party to the case, filed a Motion to Intervene. The Motion was granted in mid-November. On November 29, 2005, the court approved the settlement B.J. and the state reached in mid-November, which awarded B.J. a sum of $5,000,000, continued his medical care via Medicaid, and in which the state waived any and all Medicaid liens. The plaintiff's attorney fees were also waived, though the costs were not.

Alice Liu - 10/31/2012


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