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SCHWIMMER v. KALADJIAN

October 7, 1993

MORRIS SCHWIMMER, et al., Plaintiffs,
v.
GREGORY KALADJIAN, etc., et al., Defendants.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 Plaintiffs Morris Schwimmer ("Mr. Schwimmer") and Rifka Schwimmer ("Mrs. Schwimmer") (collectively, the "Schwimmers") bring this action challenging the allegedly unlawful and involuntary removal of their minor son, plaintiff Yoel Schwimmer ("Yoel"), from their home by the defendants, and the allegedly unlawful and nonconsensual physical examinations of minor plaintiffs Devorah Schwimmer, Berish Schwimmer, Faiga Dina Schwimmer, David Schwimmer, Yoel Schwimmer and Rachel Yachet Schwimmer (collectively, the "Schwimmer children"). Plaintiffs also challenge the defendants' practices, patterns and policies in determining when and how to remove children whose parents are suspected of child abuse. Defendant Gregory Kaladjian ("Kaladjian") moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the amended complaint against him for failure to state a claim. *fn1" For the reasons set forth below, Kaladjian's motion is granted in its entirety.

 BACKGROUND *fn2"

 Defendant Kaladjian was the Commissioner of the New York State Department of Social Services ("DSS") during the relevant time period. *fn3" As such, he was responsible for the maintenance of the New York State Registry, and had oversight and supervisory responsibilities over all aspects of the New York City Human Resources Administration ("HRA"), including the Child Welfare Administration ("CWA"). Defendant Barbara Sabol ("Sabol") was the Administrator of the HRA, charged by law with investigating reports of alleged child abuse within her jurisdiction. Defendant Robert L. Little ("Little") was employed by HRA as Executive Deputy Commissioner of CWA. Defendant Mary Harris ("Harris") was employed by HRA as a manager of CWA. Defendant Joseph Guilford ("Guilford") was employed by HRA as a supervisor of CWA. All of the defendants are sued in their official capacity. *fn4"

 On June 22, 1991, Yoel, then 27 months old, lost his balance and fell backward down several wooden steps. Mrs. Schwimmer examined Yoel, and observed several bruises on his forehead and cheeks. Upon determining that he did not suffer any serious injury, however, Mrs. Schwimmer did not seek the services of a doctor.

 Subsequently, on June 24, 1991, Mr. Schwimmer took Yoel and two other Schwimmer children for regular medical checkups to Dr. Gerald Rood ("Dr. Rood"), a private physician. During the examination, Dr. Rood questioned Mr. Schwimmer as to the origins of Yoel's bruises. Although Mr. Schwimmer explained that Yoel had fallen, and described the circumstances of the fall, Dr. Rood informed Mr. Schwimmer that, because Yoel had more than three bruises, he was required to report the incident to the New York State Central Registry of Child Abuse and Maltreatment (the "Central Registry"). Pursuant to New York law, the Central Registry submits such reports to the agency responsible for investigation. See N.Y. Soc. Serv. Law ยง 415.

 Upon receiving the report, two CWA case workers physically examined four of the Schwimmer children in their home on the evening of June 24, 1991. After their examination, the case workers informed Mrs. Schwimmer that their examination raised no suspicion of child abuse. The following morning, on June 25, 1991, a CWA employee, Audrey Dragich, also visited the Schwimmers' home. After examining the home, questioning Mrs. Schwimmer and two other witnesses to Yoel's fall, and speaking with the Schwimmers' oldest daughter, Ms. Dragich told Mrs. Schwimmer that she also believed the accusation of child abuse was false and groundless.

 Nevertheless, on June 26, 1991, at approximately 12:00 a.m., three CWA workers, accompanied by several police officers, allegedly removed Yoel from the Schwimmer home and took him to Beth Israel Hospital, where Yoel was examined and x-rayed. Yoel was detained at the hospital and taken into CWA custody. The Schwimmers allegedly were prohibited from visiting their son.

 During the evening of June 26, 1991, Yoel was taken by the CWA to the Ohel foster care agency. Subsequently, on June 27, 1991, the Schwimmers appeared for a hearing before Judge Grunbaum in the Brooklyn Family Court. At the hearing, the CWA allegedly agreed to allow Yoel to remain in the custody of Mr. Schwimmer's brother, Mendel Schwimmer, pending the resolution of the case. Judge Grunbaum thereupon scheduled another hearing for July 1, 1991.

 On June 28, 1991, two CWA employees visited the Schwimmers' home and examined the remaining Schwimmer children. One CWA employee allegedly informed the Schwimmers that there was no evidence of physical abuse of their children.

 At the July 1, 1991 hearing, the CWA announced that Yoel could be returned to his parents, allegedly stating that the Schwimmer home was a safe environment. Judge Grunbaum adjourned the case until August 7, 1991, in order to allow the CWA to obtain Yoel's hospital records. Accordingly, on July 1, 1991, Yoel was returned to his parents' custody.

 Subsequently, at the August 7, 1991 hearing, the CWA withdrew their case against the Schwimmers on the ground that Yoel's bruises were consistent with the explanation the Schwimmers initially offered. To date, plaintiffs allege that they have received neither a written follow-up report regarding the CWA investigation, nor any written verification of its closure from the CWA. However, on or about December 17, 1991, plaintiffs allege that the DSS sent them a letter stating that:

 
WE CAN NOW INFORM YOU THAT AS A RESULT OF THE ASSESSMENT MADE BY THE LOCAL CHILD PROTECTIVE SERVICE, NO CREDIBLE EVIDENCE WAS FOUND TO BELIEVE THAT THE CHILDREN HAS BEEN ABUSED OR MALTREATED. THE ...

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