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DIXEY v. JEWISH CHILD CARE ASSN.

August 20, 1981

Danielle Friedman DIXEY, Plaintiff,
v.
JEWISH CHILD CARE ASSOCIATION; Hillary Volper, individually and as an employee of the Jewish Child Care Association, Defendants



The opinion of the court was delivered by: DUFFY

Plaintiff brings this action against the Jewish Child Care Association (the "JCCA") and Hillary Volper pursuant to 42 U.S.C. § 1983 and the Constitution seeking money damages for the loss of physical custody of her child. Plaintiff claims that this loss was caused by defendants' negligence in fulfilling their duties under state law and their efforts to destroy the parent-child relationship between plaintiff and her son. Plaintiff also asserts pendent claims for the alleged violation of her right to family integrity in contravention of New York State law and for defendant Volper's failure to fulfill her professional responsibilities to plaintiff and her child.

Defendants now move to dismiss the complaint pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure on the ground that this court lacks subject matter jurisdiction.

I.

 Plaintiff is the natural mother of Jonathan Dixey, born June 12, 1968. Defendant JCCA is an agency authorized by New York State to place children in foster homes. Defendant Hillary Volper, a certified social worker, was an employee of the JCCA and the case worker assigned to the Dixey case for a period of time.

 Plaintiff placed Jonathan in the care of the JCCA on July 16, 1971. The JCCA then placed Jonathan in the foster home of Arthur and Shirley Schwartz. Plaintiff continued to consent to such care until four and one-half years later when she asked the Agency to return her child within six months. At the specified time, however, the plaintiff stated that she was unable to take the child due to a temporary housing problem.

 Six months later, the JCCA instituted a proceeding in the Family Court to terminate plaintiff's parental rights. The JCCA instituted this proceeding pursuant to New York laws which provide for the termination of the natural parent's rights to a child if the child is "permanently neglected" by that parent. New York Family Court Act § 611; New York Social Services Law § 384-b(7). For purposes of such a proceeding, a permanently neglected child is

 
... a child who is in the care of an authorized Agency and whose parent or custodian has failed for a period of more than one year following the date such child came into the care of an authorized Agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the Agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child.

 New York Social Services Law § 384-b(7).

 A fact-finding and dispositional hearing on the JCCA's petition was held by the Family Court. On July 21, 1977, the Family Court found that the plaintiff had neither abandoned nor permanently neglected Jonathan. The court directed that Jonathan be returned to plaintiff at the end of the 1978 school year. In addition, the court stated that, "Although several caseworkers were involved with this mother, there was a total lack of coordination in their efforts. Hardly the kind of diligent effort that the Agency is legally required to make in order to promote the parent-child relationship." In the Matter of Jonathan Dixey, Docket No. B-4873/76.

 On appeal by the JCCA, the Family Court's order was modified, deleting the directive to return the child to the plaintiff. The matter was remanded to the Family Court to decide the custody issue with an inquiry into the child's best interests. On December 11, 1978, the court concluded that it was in Jonathan's best interests to continue his placement in the foster home with continued visitation for the plaintiff. Matter of Jonathan D., 97 Misc.2d 859, 412 N.Y.S.2d 733 (1978).

 The most recent hearing concerning Jonathan's status was held by Family Court Judge Sheldon M. Rand. In an Order of Disposition dated April 8, 1981, Judge Rand continued foster care of Jonathan without objection by plaintiff.

 In 1980, plaintiff instituted suit invoking the jurisdiction of this court under 42 U.S.C. § 1983 and the United States Constitution. Plaintiff alleged that her family was deprived unlawfully of its constitutional right to remain together as a result of defendants' failure to make diligent efforts to assist, develop and encourage a meaningful relationship between plaintiff and her child as required by New York law. Plaintiff also argues that the defendants took steps to destroy plaintiff's relationship with her child. She contends, therefore, that under § 1983 she is entitled to recover compensatory and punitive damages. Plaintiff also asserts pendent claims involving negligence and violations of state law.

 The defendants move to dismiss plaintiff's suit on the grounds that this court lacks subject matter jurisdiction. The defendants do not dispute that plaintiff is protected under the Constitution from intrusion upon her family life absent a compelling reason. They argue, however, that plaintiff's Constitutional rights have not been violated. The JCCA also contends that, even assuming it breached its duty under New York law, such a breach ...


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