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THOMAS v. NEW YORK CITY

February 3, 1993

Yvonne Thomas, etc., et alia, Plaintiffs,
v.
New York City, et alia, Defendants.


Sifton


The opinion of the court was delivered by: CHARLES P. SIFTON

SIFTON, District Judge.

 This section 1983 civil rights action is based primarily on claims that the infant plaintiffs were physically and emotionally abused while in the care of New York City's foster care system and, as a result, deprived of their liberty interest in maintaining family relations. Currently, all plaintiffs move to amend the complaint and defendants move to dismiss this action on the grounds of lack of subject matter jurisdiction, res judicata, collateral estoppel, abstention, failure to state a claim for which relief can be granted, and the statute of limitations. Certain of the defendants also challenge plaintiff Thomas' standing to bring this suit. Additionally defendants the City of New York, William J. Grinker, Brooke Trent, Hector Rivera, and the New York City Board of Education move to amend their answer to assert a statute of limitations defense and a claim of lack of subject matter jurisdiction.

 For the reasons set forth below, the plaintiffs' motion to amend the complaint and the defendants' motion to amend their answer are granted. Also for the reasons hereinafter discussed, the defendants' motions to dismiss this action are denied. However, the Court will abstain from hearing two of the plaintiffs' claims.

 The plaintiffs in this case are: Yvonne Thomas ("Thomas"), a mother of ten children; eight of those infant children, each of whom has been a ward of New York City's foster care system, namely, Tosca Dean, Nakei McMoore, Cherise McMoore, Michelle McMoore, Alphonso McMoore, Nakinja McMoore, Arthur McMoore, Bertette McMoore (collectively, the "infant plaintiffs"); and Yvonne Thomas' other two infant children Bertram Harris and Montiera Thomas. Thomas sues in her individual capacity and on behalf of all of the other plaintiffs.

 The moving defendants are: the City of New York; the New York City Board of Education; William J. Grinker, Commissioner of Social Services; Brooke Trent, deputy Commissioner of Social Services; and Hector Rivera, a foster care employee (collectively, the "City defendants"); Harlem Dowling-West Side Center for Children and Family Services, and certain of its employees, namely Stacey Lawrence, Patricia Lyons, and Eleanor Burgess (collectively, "Harlem Dowling defendants"); and Angel Guardian Home, and certain of its employees, namely Ellen Sheps and Jacqueline McKelvey (collectively, "Angel Guardian defendants").

 It is undisputed for purposes of these motions that, during the time that the infant plaintiffs were in foster care, New York City had legal custody of them. Under contract with the city, the Angel Guardian defendants supervised the foster care placement of the eight infant plaintiffs who were in foster care. The Harlem Dowling defendants supervised the foster care placement of four of the infant plaintiffs pursuant to a contract with the city.

 Also, named as defendants but not appearing on the current motions are Carole Webb and Ralph Bull. The complaint charges that Webb and Bull physically and sexually abused five of the infant plaintiffs.

 When evaluating defendants' motions for judgment on the pleadings under Rule 12(c) or the motions for dismissal pursuant to Rule 12(b)(6), the Court must take all of the factual allegations in the complaint as true and regard them in a light most favorable to the plaintiffs. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Juster v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990). The standard of Rule 12(c) is substantially the same as the standard for a motion to dismiss a claim under Rule 12(b)(6). Juster, 901 F.2d at 269; Gillman v. Burlington Northern Railroad Co., 878 F.2d 1020, 1022 (7th Cir. 1989).

 Background

 For purposes of these motions, the following facts are assumed to be true. On July 21, 1983, the City defendants commenced child protective proceedings against Thomas and removed seven of the infant plaintiffs from plaintiff Thomas' custody, placing them in foster care. The City charged Thomas with neglect, alleging that one of the children, Tosca Dean, had been sexually abused by Thomas' paramour. Shortly after her birth in December 1983, Thomas' eighth child, Bertette McMoore, also was removed from Thomas' custody.

 All eight children were placed in foster care homes through the Angel Guardian Home, pursuant to contracts with the City and contracts executed between Angel Guardian Home and the foster parents. Five of the children were placed in the home of defendants Webb and Bull. The other three children were placed in a separate foster home.

 While under the care of the City defendants and the Angel Guardian defendants these eight infant plaintiffs were subjected to various forms of physical and emotional abuse. The children placed with Webb and Bull were physically beaten and terrorized by Webb and Bull. Bull is alleged to have repeatedly raped the infant plaintiffs, Tosca and Cherise. On numerous occasions, Bull is further alleged to have removed the children from their school prior to the end of the school session and to have taken them home or to motel rooms in order to rape them. The younger children, Michelle and Bertette, are also alleged to have been subject to sexual abuse as they grew older.

 At the same time, Angel Guardian Home placed the other three infant plaintiffs, Nakei, Alphonso, and Nakinja, in a separate foster home. These children were moved frequently from home to home, and in one of the homes the three children were subject to beatings and other kinds of abuse, including malnutrition and sexual abuse.

 While her children were in the foster care system, Thomas tried to regain custody of them. On February 7, 1984, however, Thomas admitted neglect in a family court proceeding. During subsequent proceedings, the City defendants secured extensions of the children's foster care placement.

 In 1985, the Angel Guardian defendants terminated visitation rights between Thomas and two of the children living in the Webb home, Tosca and Cherise. The Angel Guardian defendants also disallowed visitation rights between the infant plaintiffs who were living in the Webb home and the infant plaintiffs who were living with Thomas.

 In 1986, the Angel Guardian defendants commenced proceedings in family court to terminate permanently Thomas' parental rights to the five children living at the Webb home. Thomas was not served with notice of the proceeding and consequently did not appear. The family court terminated Thomas' parental rights, and in 1989, Webb formally adopted the five children living in her home.

 In September of 1990, Tosca informed Thomas of the physical and sexual abuse to which she and her siblings were subjected in the Webb home. Thomas contacted City officials and in October 1990, the children were removed from the Webb home. Both Webb and Bull were charged with rape and sexual abuse, and Bull was convicted in February 1991 of raping Bertette and Michelle.

 After removing the children from the Webb home and pursuant to a contract between the City and Harlem Dowling-West Side Center for Children and Family Services ("Harlem Dowling"), the City defendants placed the children in the care of Harlem Dowling; Harlem Dowling placed the children in four separate foster homes. While in these homes, the children were again subjected to physical and emotional abuse: Cherise was locked alone in an apartment every Saturday; Arthur and Michelle were assaulted and humiliated by members of their respective foster families.

 The Harlem Dowling defendants also disallowed visitation between the siblings and between Thomas and the children in Harlem Dowling's care.

 After discovering the abuse in the Webb home in 1990, Thomas also discovered that her parental rights had been terminated. She then applied to the Family Court of the State of New York, County of Kings, seeking to reopen the termination of the parental rights proceeding and to regain custody of the infant plaintiffs who remained in the foster care system. That action is still pending.

 On March 20, 1992, the plaintiffs instituted the present action in federal court. At the time of filing the original complaint, three of the infant plaintiffs were still in foster care. In addition to damages, the original complaint sought an injunction ordering the defendants to return these three children to the care and custody of Thomas. However, in September 1992, the City and Harlem Dowling defendants returned these three children to Thomas' custody, and the plaintiffs have withdrawn their request for injunctive relief.

 DISCUSSION

 Motion to Amend Complaint

 Plaintiffs move to amend their complaint in order to drop their request for injunctive relief and the cause of action for conspiracy under 42 U.S.C. ยง 1985 and to add claims that two of the infant plaintiffs, Arthur McMoore and Michelle McMoore, were abused in foster care while under the supervision of the Harlem Dowling defendants and the City defendants. The Angel Guardian defendants and defendants Webb and Bull are not affected by the additional claims.

 The Federal Rules of Civil Procedure contemplate liberal pleading and leave to amend pleadings is "freely given when justice so requires." Fed. R. Civ. Pro. 15(a); see also Fed. R. Civ. Pro. 8. The decision whether to permit or disallow an amendment of a complaint is within the district court's discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971), reh'g denied, 401 U.S. 1015, 28 L. Ed. 2d 552, 91 S. Ct. 1247 (1971). Leave to amend should be permitted in the absence of undue delay, bad faith, or undue prejudice to the opposing party. Foman v. ...


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