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March 5, 1990


The opinion of the court was delivered by: Bartels, District Judge.


In this domestic relations suit disguised as a federal civil rights action, Defendants Ozzie Orbach ("Orbach"), Legal Aid Society ("LAS"), Brooklyn Society for the Prevention of Cruelty to Children ("BSPCC"), Ohel Foster Care Agency ("Ohel"), and the City of New York (the "City") (collectively, the "Defendants"), move pursuant to Fed.R.Civ.P. 12(b)(1) and (6) to dismiss the amended complaint.

This action was commenced on October 19, 1989, with the filing of a complaint by the plaintiff, Amy Neustein ("Plaintiff"). On November 9, 1989, Plaintiff filed an amended complaint*fn1 in which subject matter jurisdiction is premised on 28 U.S.C. § 1331, 28 U.S.C. § 1343, 42 U.S.C. § 1983, 28 U.S.C. § 2254 and 42 U.S.C. § 1985(2). Plaintiff alleges, among other things, a violation of her Sixth Amendment right to confront witnesses against her, a violation of her due process and equal protection rights under the Fifth and Fourteenth Amendments to the Constitution and a violation of her constitutional right to custody of her daughter (collectively, her "Constitutional Rights"). She seeks (a) sole custody of an infant child ("Sherry"), (b) denial of visitation privileges to the present legal custodian, Orbach, and (c) damages to compensate her for legal fees, acute mental anguish and suffering engendered by the loss of Sherry's companionship, love and affection, and her inability to pursue her career and studies.


The case involves a long and tortured history of proceedings, extending over several years, in the Family Court, the Appellate Division and the Court of Appeals of New York State.

Plaintiff and Orbach were married in 1979 and Sherry was born on September 2, 1980. Plaintiff and Orbach separated in 1982 and they were divorced in 1983 pursuant to an uncontested judgment issued by the Supreme Court of the State of New York, County of Kings. Although Sherry lived with Plaintiff, at Plaintiff's parents' home, Orbach continued to visit his daughter on a weekly basis. Plaintiff alleges that in May of 1986 her mother, Shirley Neustein (the "Grandmother"), witnessed Orbach sexually abusing Sherry. Although Plaintiff did not report these alleged acts to the authorities she limited Orbach's visits with Sherry.

Chronology of Events

On August 5, 1986, Orbach instituted divorce proceedings in which he requested custody of Sherry. He also sought interim custody of Sherry and served an order to show cause on Plaintiff to that effect.

On or about August 18, 1986, five days after the order to show cause for interim custody was signed, the Grandmother filed a police report alleging that Orbach had threatened to kidnap Sherry and harm Plaintiff. She also told the police that she had witnessed Orbach sexually abuse Sherry some months earlier. The police notified the New York State Child Abuse Hotline ("Hotline") and they notified BSPCC.*fn2 Shortly thereafter BSPCC instituted a neglect proceeding against Orbach and on September 11, 1986, after additional investigation, BSPCC filed a second petition charging Orbach with sexual abuse and the Plaintiff with neglect. LAS*fn3 was then appointed Sherry's Law Guardian.

On September 23, 1986, Family Court Judge Jeffrey Gallet ordered Plaintiff to produce Sherry for an interview with a BSPCC caseworker. On October 2, 1986, following a discussion in chambers with Judge Gallet and BSPCC, the petitioner, Plaintiff and Orbach consented to a remand of Sherry to the Commissioner of Social Services ("Commissioner"). Sherry continued to reside with Plaintiff on the express condition that she produce Sherry at BSPCC for a psychological evaluation and that both she and Orbach undergo psychiatric examinations.

On October 17, 1986, Judge Gallet advised the Plaintiff that if she did not appear for her psychological examination the Commissioner would be authorized to remove Sherry from her custody. On October 21, 1986, BSPCC requested that Sherry be removed from Plaintiff's custody because Plaintiff failed to appear for the prearranged psychological examination. In addition, the Grandmother failed to comply with a BSPCC request to bring Sherry to Family Court that day. Judge Gallet signed the Order of Removal (the "Order"), indicating his concern for Sherry's welfare. Although LAS, who was also present, did not object to the Order they reserved their right to do so in the future.

The following day Plaintiff moved to vacate the Order on the grounds that there had been no evidentiary hearing, as required by § 1027 of the Family Court Act, prior to the Order's issuance. Judge Gallet indicated that, inasmuch as the child had been remanded to the Commissioner by consent, § 1027 was inapplicable. After hearing testimony from LAS and BSPCC, Judge Gallet found a high potential for emotional harm to the child and therefore denied Plaintiff's motion. On October 27, 1986, Plaintiff's subsequent application to the Appellate Division to vacate the Order was denied and Sherry was placed in Ohel's*fn4 custody.

On November 19, 1986, Judge Gallet granted BSPCC's motion to withdraw its petition against Orbach, because it was unable to make out a prima facie case against him, and also to amend its petition against Plaintiff, charging her with impairing Sherry's emotional welfare. While Plaintiff did not object to the withdrawal of the petition against Orbach, she did argue that the petition against her should have been dismissed as well. The Family Court also ordered that the neglect and custody proceedings be consolidated in Family Court. At that time, Plaintiff also requested that Sherry be returned to her custody. LAS indicated that although it initially opposed removal, it now believed, based on additional information and investigation, that remand to the Commissioner was appropriate.

Plaintiff reported that on November 17, 1986, Sherry told her that Orbach "hurt her" again. Sometime after that Plaintiff registered a complaint with the Hotline regarding this latest accusation. On January 6, 1987, after hearing testimony that the charges had been investigated, Family Court Judge Leon Deutsch, (who was substituted for Judge Gallet) found the complaint to be specious. On January 27, 1987, Plaintiff requested a § 1028 hearing.*fn5 The following day, however, she voluntarily waived her right to a hearing and agreed to terminate the visitation hearing indicating that she would abide by whatever terms Judge Deutsch ordered.

In January 1988, Plaintiff moved to dismiss the neglect proceeding charging that BSPCC and Ohel were brainwashing Sherry, and also requested that LAS be relieved as Sherry's Law Guardian because it had failed to investigate her charges. Both requests were denied. Throughout the entire neglect proceeding Plaintiff claimed that the Defendants conspired with one another for the sole purpose of depriving her of custody of Sherry. Effective January 31, 1988, Orbach was awarded temporary custody of Sherry and Plaintiff was granted expanded visitation privileges.

During the course of the neglect proceedings, Judge Deutsch interviewed Sherry, in camera, on several occasions. Plaintiff's requests for the minutes of these meetings was denied. On July 14, 1988, Judge Deutsch dismissed the neglect petition finding that Sherry's best interests would be adequately protected by the custody proceeding then pending before him. He then held, inter alia, that Plaintiff was guilty of neglect and that her allegations of conspiracy between Ohel, BSPCC and Orbach were absurd. Plaintiff appealed from this order, but on October 20, 1988, the Appellate Division granted a cross-motion dismissing the appeal.

On November 21, 1988, following the custody hearing, Judge Deutsch awarded Orbach sole custody of Sherry, with unsupervised visitation to the Plaintiff. He found, inter alia, by clear and convincing evidence, that it was in Sherry's best interests to remain in her father's custody.

The Federal Action

In essence, Plaintiff has reiterated the issues argued to the Appellate Division. However, in order to resolve the motion it is necessary to examine the charges in the amended complaint which, as to each of the defendants, may be summarized as follows.

Individual Conduct

BSPCC violated Plaintiff's rights by: (a) conspiring with Orbach to dismiss the petition against him; (b) filing a second petition falsely charging the Plaintiff with neglect; and (c) misrepresenting to Plaintiff that Sherry would be returned to her custody if she agreed to dismiss the charges against Orbach.

Ohel violated Plaintiff's rights by: (a) permitting Orbach unauthorized visits with Sherry; (b) coercing Sherry to recant the charges against Orbach and withdraw her affections from Plaintiff; (c) hindering additional investigations of Orbach warranted by new allegations that he sexually abused Sherry while she was in foster care; and (d) testifying falsely before the Family Court.

LAS violated Plaintiff's rights by: (a) making false statements to the Appellate Division regarding the need to place Sherry in foster care; (b) suppressing evidence that would corroborate the charges of sexual abuse against Orbach; (c) contending at the custody hearing that statements made by Sherry during in camera interviews provided proof that she was guilty of neglect; (d) failing to properly investigate bruises on Sherry's body that Plaintiff noticed after Orbach was awarded temporary custody; and (e) failing to investigate Plaintiff's charges that Sherry's anorexia, diagnosed in March of 1989, was evidence of possible sexual abuse.

Joint Conduct

BSPCC and LAS violated Plaintiff's rights by: (a) failing to oppose Judge Gallet when he threatened to remove Sherry from her custody; and (b) failing to bring to the attention of the Family Court and the Appellate Division alleged defects in the Order, i.e., the statement therein that ...

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