A three-panel jury will decide if the ruling was fair.
Jadiel Velesquez, and his grandparents, Neomi Escobar (right) and Jose Betances. (Aristide Economopoulos | The Star-Ledger)NEWARK -- The fate of the largest verdict ever awarded in a civil case against the state hangs on whether or not child protective workers made discretionary decisions when they did not remove an infant who eventually sustained permanent disabilities from his abusive father's care in 2009.
A three-judge appellate panel heard arguments Tuesday in the state's appeal of a 2013 decision that awarded Jadiel Velesquez, now 6, a record-breaking sum after finding that the state's Division of Youth and Family Services failed to protect the boy from his father. A jury originally awarded the boy - who has since been adopted by his maternal grandparents -- $166 million. State Judge James Rothschild reduced the sum to $102 million in 2014, which is still the highest amount awarded against the state.
In the initial decision, the jury pegged three DYFS workers with 100 percent of the responsibility for the boy's injuries, which include brain damage, lifetime confinement to a wheelchair, and permanent blindness.
In his subsequent decision, Rothschild also put 25 percent of the blame on the boy's father.
The jury's decision should be voided, the state's attorney Edward Dauber argued Tuesday, based on a statute that exempts public employees from liability when injuries stem from decisions they make on the job.
"It never should have gone to a jury," Dauber said. "The trial judge erred in not dismissing the case."
But David Mazie, the attorney representing Jadiel's grandmother Neomi Escobar, argued that the state workers were negligent in completing ministerial acts - ones required by the division's handbook. Removing the boy from the home would have been mandated by the agency's standards, and would not have been a "discretionary" decision, Mazie said.
He also argued that the statute exempts only high-level policy decisions, not daily decisions that are in the normal course of a worker's job.
Judge cuts $64M from record-setting jury award for Hillside boy beaten by his father
The discrepancy swirled around a months-long campaign Escobar waged in 2009 to have DYFS (which has since been renamed Child Protection and Permanency) remove the boy from his father's care. After she called the agency in May, the boy was hospitalized with bruises on his cheeks and blood in both eyes, according to the attorneys. Doctors released him with a finding of suspected abuse, they said.
Escobar also reported seeing a crack pipe in the baby's diaper bag, they said.
A DYFS caseworker implemented a plan that prevented the boy's father, Joshua Velesquez, from being alone with the boy. The plan had expired by July 16, 2009, when attorneys said the boy was left alone with his father for about 15 minutes in their Jersey City home, when the beating occurred.
During the trial, Mazie argued the caseworkers made several missteps, such as failing to do a nationwide background check on Joshua, which he said would have revealed 20 prior arrests on violent charges.
Mazie said that there were as many as 16 steps that the caseworkers either did not take, or completed incorrectly, that would have resulted in the child's removal prior to the beating, had they been done.
"They were mandatory things they had to do...DYFS abandoned Jadiel," he said.
But, Dauber said the immunity clause is in place so that state workers are not discouraged from making tough decisions by knowing that they could be held legally responsible for those decisions. Without it, the whole system would be "undermined," he said.
The state's attorney also argued that procedures the judge used throughout the trial were not valid. Though Dauber said the state feels the amount awarded should be lessened, and argued that the boy's parents should share in the blame for the incident, he argued that the judge did not have the authority to make those decisions, and he should have instead called for a new trial.
Dauber also argued that the boy's mother should share in some of the blame for putting him in a situation where he would be alone with his father.
Escobar has also filed an appeal of the reduction, but conversely Mazie argued that the boy's father was a known danger, and therefore the blame should fall entirely with the state for failing to keep the boy from him.
The boy's mother, Mazie said, was "also a victim" of domestic abuse, and should not have been legally expected to protect the boy from his father.
The three-judge panel is expected to make decisions on all aspect of both appeals.
Jadiel now lives with his grandparents in Hillside, and does not have any interaction with either of his birth parents, Mazie said.
Joshua Velesquez, who was sentenced to six years on aggravated assault charges in connection with the beating, has since been released from prison, Mazie said Tuesday.
Jessica Mazzola may be reached at jmazzola@njadvancemedia.com. Follow her on Twitter @JessMazzola. Find NJ.com on Facebook.
