The opinion of the court was delivered by: WARD
Plaintiffs-petitioners in this action are John and Lillie Bryant ("the Bryants"), the former foster parents of three children, Kim Walker ("Kim"), David Pitman ("David"), and Virginia Parris ("Virginia"), who were removed from the Bryants' foster care on October 1, 1980. The action was commenced when the Bryants filed a document ("the complaint/petition") in this Court that purports at once to be a complaint seeking injunctive relief pursuant to 42 U.S.C. § 1983 and a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The basic legal contention put forth by the Bryants is that they were deprived of their fourteenth amendment right to due process by the failure of defendants-respondents to hold a hearing prior to removing Kim, David, and Virginia from the Bryants' foster care. Defendants-respondents are the Commissioner of Social Services of the State of New York ("the State Commissioner"), the Commissioner of Social Services of the City of New York ("the City Commissioner"), and Spence-Chapin Services to Families and Children ("Spence-Chapin").
The Bryants now move, by order to show cause, for an order granting the relief sought by the complaint/petition. The Court has determined to treat this application as a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. The City Commissioner and Spence-Chapin separately cross-move, pursuant to Rule 12(b)(6), Fed.R.Civ.P., for an order dismissing the complaint/petition. Counsel for the State Commissioner has filed an affidavit with the Court stating that the State Commissioner joins in these motions. For the reasons hereinafter stated, the Bryants' motion is denied, the City Commissioner's motion is granted in part and denied in part, and Spence-Chapin's motion is granted in part and denied in part.
The factual background to this litigation is most easily described by beginning with an explanation of the legal relationship between the various parties before the Court. The State Commissioner is the chief executive and administrative officer of the New York State Department of Social Services. N.Y.Soc.Serv.Law § 11. This department is required to administer all aspects of the public welfare activities for which the State of New York is responsible under the New York Social Services Law. Id. § 20.2(a). The City Commissioner heads the New York City Department of Social Services, which is a "local social services department" within the meaning of the New York Social Services Law. See id. §§ 2.17, 62.1. Local social services departments such as the New York City Department of Social Services are also responsible for administering, under the supervision of the New York State Department of Social Services, the public assistance programs set forth in the New York Social Services Law. Id. § 20.2(b).
The portions of the New York Social Services Law that govern the provision of "foster care" are somewhat complicated. Under New York law, a child is placed in foster care by transferring legal custody of the child to an "authorized child welfare agency." Such a transfer may be effected either by a written instrument executed by the child's natural parent or guardian, id. § 384-a.1, or by a court order, see N.Y.Family Court Act §§ 753, 754, 756, 1052 & 1055. The "authorized child welfare agencies" to which custody of children may be transferred under these sections include not only local public welfare bureaus, such as the New York City Bureau of Child Welfare, but also any private child-care agency that has been licensed to provide foster care by the State of New York and has entered into a contract with a local social services department pursuant to which it agrees to provide foster care to eligible children. See N.Y.Soc.Serv.Law § 371.10. Spence-Chapin, the third defendant-respondent, is a private child-care agency located in New York City that has been licensed to provide foster care by the State of New York and that is presently engaged in providing foster care to a number of children pursuant to a contract with the New York City Department of Social Services.
When legal custody of a child is transferred to an agency such as Spence-Chapin in the manner described above, the child is either maintained directly by the agency itself in an institutional setting, id. §§ 374-b, 374-c & 374-d, or "placed out" in a private home with "foster parents" such as the Bryants. Id. § 374.1. In the latter case, the foster parents care for the child under a contractual arrangement with the placing agency; while the foster parents are charged with day-to-day supervision of the child, legal custody of the child remains with the agency.
Occasionally, the authorized child welfare agency that has legal custody of a child will determine that the child should be removed from the care of his or her foster parents. In such event, the foster parents have a statutory right to a hearing before the removal occurs, at which they can contest the propriety of the agency's decision to remove the child from their care. There are two procedural mechanisms available to obtain such a hearing: (1) the foster parents may file a petition in the New York Family Court for review of the child's foster care status pursuant to N.Y.Soc.Serv.Law § 392; or (2) the foster parents may appeal the agency's decision to the New York State Department of Social Services pursuant to N.Y.Soc.Serv.Law § 400.
The events leading to the commencement of this litigation date back to 1972, when the City Commissioner and Spence-Chapin placed Kim, David, and Virginia with the Bryants for foster care. A previous placement with the Bryants had resulted in the Bryants' adoption of two children. The decision to place Kim, David, and Virginia with the Bryants was apparently based, at least in part, on the success of this prior placement.
Kim, David, and Virginia lived with the Bryants continuously from 1972 until October 1, 1980. In 1976, the Bryants sought permission to adopt these three children. By March 1978 all three children had been legally freed for adoption. The Bryants, having had continuous care of Kim, David, and Virginia as foster parents for more than two years, were entitled to preference over all other applicants seeking to adopt the children. Id. § 383.3. However, on June 11, 1979, the City Commissioner and Spence-Chapin denied the Bryants' application to adopt Kim, David, and Virginia. The City Commissioner and Spence-Chapin further determined that Kim, David, and Virginia should be removed from the Bryants' foster care, in order that the children could be placed with foster parents who might be permitted to adopt them. Kim, David, and Virginia were removed from the Bryants' foster care on October 1, 1980, and were subsequently placed in pre-adoptive foster care with a family in Oregon. No hearing was held prior to the removal. The Bryants allege that they failed to avail themselves of their statutory right to a preremoval hearing because defendants-respondents deliberately failed to inform them of that right.
The Bryants commenced their challenge to the removal decision on January 23, 1981, by filing a petition in the New York Family Court pursuant to N.Y.Soc.Serv.Law § 392 ("Section 392"). This petition sought Family Court review, as provided for in Section 392, of the foster care status of Kim and David. Subsequently, the Bryants filed a Section 392 petition seeking review of Virginia's foster care status. The two petitions were ultimately consolidated by an order of the Family Court judge.
In an order dated March 17, 1981, the Family Court determined that it had jurisdiction to hear the Bryants' consolidated petitions. It also found that "(t)here exists a genuine and substantial issue of fact as to whether or not the former foster parents, Mr. & Mrs. Bryant, were informed (by the City Commissioner and Spence-Chapin) of their rights regarding the removal of the children from their home." On this basis, the Family Court directed the New York State Department of Social Services to hold a hearing, pursuant to N.Y.Soc.Serv.Law § 400 ("Section 400"), to determine the propriety of the City Commissioner's decision to remove Kim, David, and Virginia from the Bryants' home.
The Section 400 hearing was commenced on April 3, 1981; testimony was taken on four days during April and May 1981. At the hearing, the Bryants took the position that there was no jurisdiction for the hearing to be conducted. The right of a foster parent to challenge a decision to remove a child from his or her foster care by commencing a Section 400 proceeding is subject to N.Y.Soc.Serv.Law § 22, id. § 400.2, which requires that the hearing "must be requested within sixty days after the date of the action or failure to act complained of." Id. § 22.4. The Bryants argued that, since their Section 392 petitions had not formally requested a Section 400 hearing, and since they had not made anything that could even arguably be construed as a request for a Section 400 hearing during the sixty-day period provided for in N.Y.Soc.Serv.Law § 22.4, there was no jurisdictional basis for a Section 400 hearing notwithstanding the Family Court's order that such a hearing be commenced. In essence, the Bryants took the position that the propriety of the decision to remove Kim, David, and Virginia from the Bryants' foster care could only be determined at a hearing conducted by the Family Court itself in the context of adjudicating the consolidated Section 392 petitions. By a decision dated July 31, 1981, the New York State Department of Social Services accepted the Bryants' jurisdictional argument and accordingly declined to resolve the question that had been the subject of the hearing: whether the Bryants were, upon being notified of the decision that Kim, David, and Virginia would be removed from their care, properly informed of their right to a preremoval hearing.
In the meantime, the Bryants had continued to litigate their Section 392 petitions before the Family Court. In an order dated March 30, 1981, the Family Court judge denied the Bryants' request that Kim, David, and Virginia be returned to the Bryants' home pending determination of the Section 392 petitions. In making this request, the Bryants had relied both on Section 392 itself and the United States Constitution. On April 7, 1981, the Family Court judge signed an order dealing with a number of other requests made by the Bryants. By a notice of appeal filed April 8, 1981, the Bryants sought to appeal the Family Court's orders of March 17, March 30, and April 7. Later, on April 17, 1981, the Bryants moved before the Appellate Division for an order expediting the hearing of this appeal. The Appellate Division, in an order dated May 7, 1981, treated the Bryants' motion as a motion for leave to file an interlocutory appeal pursuant to N.Y.Civ.Prac.Law § 5701(c), denied the motion, and dismissed the appeal for want of jurisdiction.
The Bryants thereupon determined that the time had come to make a federal case out of the matter, and accordingly commenced the instant action by filing the complaint/petition with the Clerk of this Court on May 26, 1981. The already-described order to show cause and cross-motions to dismiss that are the subject of today's decision soon followed. The Court heard argument on these motions on June 3, 1981, and reserved decision in order to allow the parties time to serve and file additional submissions relating to certain issues raised during the argument. These submissions were filed by July 1, 1981. In a subsequent submission filed with the Court on August 20, 1981, Spence-Chapin notified the Court of the determination by the New York State Department of Social Services that it was without jurisdiction to hold a Section 400 hearing notwithstanding the Family Court's order that it conduct such a hearing. This submission also informed the Court that the Section 392 petitions were still pending before the Family Court. The final submission received by the Court was filed on December 10, 1981. This submission informed the Court of the Family Court's most recent decision in the Section 392 proceeding. By this decision, the Family Court denied Spence-Chapin's motion to dismiss the Bryants' Section 392 petitions, directed that the case be set down for a hearing to determine whether the current placement of Kim, David, and Virginia for foster care ...