NJ & CT News

The father was convicted of child abuse and is currently serving a six-year sentence. The child now cannot walk or talk, and will need ongoing care for life. His maternal grandmother, who adopted him, sued DYFS. After the close of the plaintiff's case, DYFS moved for dismissal, claiming unqualified immunity for its discretionary acts in carrying out its duties. That motion was denied.

At the end of the two-and-a-half week trial, the jury found against DYFS and the plaintiffs were awarded $105 million for future medical expenses, $57.6 million for pain and suffering, $1.4 million for future lost wages, and $1.9 million for the maternal grandmother's past lost services. The plaintiffs also asserted claims against two of the hospitals the child visited and individual medical professionals; these defendants settled earlier in 2013 for $7.4 million.

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CONNECTICUT

When Rights May Be Terminated, Parents Must Be Given List of Rehabilitative Steps

A Connecticut Supreme Court decision published on Nov. 12, 2013, alters the requirements for terminating parental rights in that state. The case of In re Elvin G., 310 Conn. 485 involved the termination of the parental rights of a father who had been incarcerated for many years. The children were sometimes taken to visit their father in prison while they were in foster care, but his incarceration and other impediments to visitation (he lost visiting privileges for 18 months after testing positive for marijuana) showed that he could not benefit from reunification efforts, the court determined. It therefore held that he had failed to rehabilitate, and that termination of his parental rights was in the children's best interests.

The father appealed, asserting that Conn. Gen. Stat. ' 17a-112 (j) (3) (B) (i) requires, as a prerequisite to termination for failure to rehabilitate, that a parent first receive court-ordered specific steps to guide him toward rehabilitation. It was undisputed that he was not given a list of any such steps. The Supreme Court agreed with the father, stating,”[P]rior provision of specific steps is required in any case in which the commissioner seeks to terminate parental rights on the ground of a parent's failure to rehabilitate.” Still, although the trail court's actions were improper, the Supreme Court did not disturb its decision, because although the steps were not provided to the father prior to termination of his parental rights, provision of the steps in this case would not have affected the ultimate determination that the father could not be rehabilitated.'

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Same-Sex Partner Seeks Loss of Consortium Damages

The Connecticut Supreme Court is considering a case in which a woman is seeking damages for loss of consortium following the death of her same-sex partner. The women were not married at the time that alleged medical malpractice caused the decedent's death, and loss-of-consortium damages claims are not available to unmarried romantic partners. However, the plaintiff in Mueller v. Tepler now argues that she and the decedent would have been married at the time of the alleged malpractice had the law allowed such unions, and only an unconstitutional deprivation of their marriage rights prevented them from doing so. This being the case, the plaintiff asserts that she should be permitted to recover damages for loss of consortium.

The decedent's doctor surmised that her patient had ovarian cancer. The doctor ordered a pathology report to confirm her suspicions, but it said that the cancer was in the patient's appendix. The doctor stuck to her original diagnosis and therefore treated her patient for ovarian cancer for four years, with no improvement. At this point, the patient sought another opinion from a different doctor, who told her that it was the appendix and not the ovaries that were cancerous. Unfortunately, by this time, the cancer had spread. The decedent died in 2009.

The decedent's partner brought suit against the treating doctor and others. She was awarded $2.45 million by a Stamford jury in 2010. A portion of that award was for loss of consortium; on appeal, that part of the award was overturned because the partners were not legally married during the time of the acts alleged.

In the appellant's brief to the State Supreme Court, attorney Sean McElligott, of Koskoff, Koskoff & Bieder, wrote that it was the State of Connecticut's policy to prohibit same-sex couples from marrying that kept the appellant and the decedent from making their union legal. “Since then, this public policy has been definitely rejected by both the Connecticut Legislature and the Connecticut Supreme Court,” continued McElligott. “The fact that the sole reason Ms. Stacey and Ms. Mueller were not married on the date of the injury was a now repudiated public policy against legal recognition of lifelong same-sex relationships supports [the appellant's] claim for loss of consortium.” (Mr. McElligott is a Member of this newsletter's Board of Editors.)

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NEW JERSEY

Jury Holds DYFS Liable to Beating Victim

On Dec. 13, 2013, a New Jersey jury awarded a severely injured beating victim $166 million, finding that the state child-welfare agency was culpable in allowing the child/victim to remain in the care of a parent the agency was monitoring. The family came to the attention of the Division of Youth and Family Services (DYFS) after the child's maternal grandmother contacted the agency in May 2009, telling them that the father suffered from bipolar disorder, took drugs and had violent tendencies. Later that same day, the four-month-old child was taken by his parents to the hospital. He had a bruised chin and hemorrhages in both eyes. He was taken to the hospital a second time with a tongue injury, but the incident was not reported to DYFS. Then, in July 2009, the child entered the hospital with serious head injuries. During the time between the first and third hospital visits, DYFS had had some contact with the family, but there was little follow-through action. For example, a nurse who conducted an in-home evaluation of the child and recommended that he be referred to a DYFS regional diagnostic treatment center for abuse cases, but this was not done.

The father was convicted of child abuse and is currently serving a six-year sentence. The child now cannot walk or talk, and will need ongoing care for life. His maternal grandmother, who adopted him, sued DYFS. After the close of the plaintiff's case, DYFS moved for dismissal, claiming unqualified immunity for its discretionary acts in carrying out its duties. That motion was denied.

At the end of the two-and-a-half week trial, the jury found against DYFS and the plaintiffs were awarded $105 million for future medical expenses, $57.6 million for pain and suffering, $1.4 million for future lost wages, and $1.9 million for the maternal grandmother's past lost services. The plaintiffs also asserted claims against two of the hospitals the child visited and individual medical professionals; these defendants settled earlier in 2013 for $7.4 million.

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CONNECTICUT

When Rights May Be Terminated, Parents Must Be Given List of Rehabilitative Steps

A Connecticut Supreme Court decision published on Nov. 12, 2013, alters the requirements for terminating parental rights in that state. The case of In re Elvin G., 310 Conn. 485 involved the termination of the parental rights of a father who had been incarcerated for many years. The children were sometimes taken to visit their father in prison while they were in foster care, but his incarceration and other impediments to visitation (he lost visiting privileges for 18 months after testing positive for marijuana) showed that he could not benefit from reunification efforts, the court determined. It therefore held that he had failed to rehabilitate, and that termination of his parental rights was in the children's best interests.

The father appealed, asserting that Conn. Gen. Stat. ' 17a-112 (j) (3) (B) (i) requires, as a prerequisite to termination for failure to rehabilitate, that a parent first receive court-ordered specific steps to guide him toward rehabilitation. It was undisputed that he was not given a list of any such steps. The Supreme Court agreed with the father, stating,”[P]rior provision of specific steps is required in any case in which the commissioner seeks to terminate parental rights on the ground of a parent's failure to rehabilitate.” Still, although the trail court's actions were improper, the Supreme Court did not disturb its decision, because although the steps were not provided to the father prior to termination of his parental rights, provision of the steps in this case would not have affected the ultimate determination that the father could not be rehabilitated.'

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Same-Sex Partner Seeks Loss of Consortium Damages

The Connecticut Supreme Court is considering a case in which a woman is seeking damages for loss of consortium following the death of her same-sex partner. The women were not married at the time that alleged medical malpractice caused the decedent's death, and loss-of-consortium damages claims are not available to unmarried romantic partners. However, the plaintiff in Mueller v. Tepler now argues that she and the decedent would have been married at the time of the alleged malpractice had the law allowed such unions, and only an unconstitutional deprivation of their marriage rights prevented them from doing so. This being the case, the plaintiff asserts that she should be permitted to recover damages for loss of consortium.

The decedent's doctor surmised that her patient had ovarian cancer. The doctor ordered a pathology report to confirm her suspicions, but it said that the cancer was in the patient's appendix. The doctor stuck to her original diagnosis and therefore treated her patient for ovarian cancer for four years, with no improvement. At this point, the patient sought another opinion from a different doctor, who told her that it was the appendix and not the ovaries that were cancerous. Unfortunately, by this time, the cancer had spread. The decedent died in 2009.

The decedent's partner brought suit against the treating doctor and others. She was awarded $2.45 million by a Stamford jury in 2010. A portion of that award was for loss of consortium; on appeal, that part of the award was overturned because the partners were not legally married during the time of the acts alleged.

In the appellant's brief to the State Supreme Court, attorney Sean McElligott, of Koskoff, Koskoff & Bieder, wrote that it was the State of Connecticut's policy to prohibit same-sex couples from marrying that kept the appellant and the decedent from making their union legal. “Since then, this public policy has been definitely rejected by both the Connecticut Legislature and the Connecticut Supreme Court,” continued McElligott. “The fact that the sole reason Ms. Stacey and Ms. Mueller were not married on the date of the injury was a now repudiated public policy against legal recognition of lifelong same-sex relationships supports [the appellant's] claim for loss of consortium.” (Mr. McElligott is a Member of this newsletter's Board of Editors.)

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