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MARISOL A. v. GIULIANI

June 18, 1996

MARISOL A., by her next friend, Rev. Dr. James Alexander Forbes, Jr.; LAWRENCE B., by his next friend, Prof. Mitchell I. Ginsberg; THOMAS C., by his next friend, Dr. Margaret T. McHugh; SHAUNA D., by her next friend, Prof. Kathryn Conroy; OZZIE E., by his next friends, Jill Chaifetz and Kim Hawkins; DARREN F. and DAVID F., by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens; BILL G. and VICTORIA G., by their next friend, Sister Dolores Gartanutti; BRANDON H., by his next friend, Thomas J. Moloney; and STEVEN I., by his next friend, Kevin Ryan, on their own behalf and on behalf of all others similarly situated, Plaintiffs, against RUDOLPH W. GIULIANI, Mayor of the City of New York; MARVA LIVINGSTON HAMMONS, Administrator of the Human Resources Administration and Commissioner of the Department of Social Services of the City of New York; NICHOLAS SCOPPETTA, Commissioner of the New York City Administration for Children's Services; GEORGE E. PATAKI, Governor of the State of New York; and BRIAN J. WING, Acting Commissioner of the Department of Social Services of the State of New York, Defendants.


The opinion of the court was delivered by: WARD

 WARD, District Judge.

 Defendants Rudolph W. Giuliani, Marva Livingston Hammonds, and Nicholas Scoppetta ("City defendants") have moved pursuant to Rule 12(b)(6), Fed. R. Civ. P., for an order dismissing large portions of plaintiffs' complaint filed on December 3, 1995 for failure to state a claim upon which relief can be granted. Defendants George E. Pataki and Brian J. Wing ("State defendants") likewise have moved pursuant to Rule 12(b)(6), Fed. R. Civ. P., for a partial order of dismissal. Plaintiffs have moved, pursuant to Rule 23, Fed. R. Civ. P., for an order certifying this action as a class action. Finally, City defendants have moved for an order bifurcating this action.

 For the reasons hereinafter stated, defendants' motions to dismiss are denied to the extent that (1) custodial plaintiffs may pursue their substantive due process claims based upon alleged violations of their right to be free from harm and all plaintiffs may pursue their procedural due process claims based upon alleged violations of various provisions of New York's Child Protective Services laws, codified at Title 6 of Article 6 of the New York Social Services Law; (2) plaintiffs may pursue their federal statutory claims based upon the Adoption Assistance and Child Welfare Act, including the provision herein referred to as the Multiethnic Placement Act, the Child Abuse Prevention and Treatment Act, the Americans with Disabilities Act, and the Rehabilitation Act; and (3) plaintiffs may pursue their state law claims. Further, plaintiffs' motion for class certification is granted. Finally, City defendants' motion to bifurcate this action is denied.

 BACKGROUND

 Plaintiffs are eleven children all of whom have suffered, and some of whom continue to be at risk of, severe abuse and neglect. These children allege that defendants, who are officials with responsibility for the Child Welfare Administration of the City of New York ("CWA") now renamed the New York City Administration for Children's Services ("ACS"), *fn1" mishandled plaintiffs' cases and, through defendants' actions or inactions, deprived plaintiffs of their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution, under Article XVII of the New York State Constitution, as well as under numerous federal and state statutes.

 The factual allegations of the complaint portray a child welfare program in crisis and collectively suggest systemic deficiencies of gross proportions. The eleven children who seek to represent the proposed class have endured a wide range of abuses and all reflect the dire situation facing children in the system. In their complaint, the named plaintiffs allege the following facts:

 
Marisol A. is a five-year old who was born two days after her mother, Ms. A., was arrested on charges of dealing drugs. CWA placed Marisol with Ms. C. during and subsequent to Ms. A.'s incarceration but, in 1994, CWA restored Marisol to her mother's custody despite her criminal history and reports that she was abusing Marisol during visitations. CWA failed to assess properly the appropriateness of this placement and took no steps to supervise or monitor Ms. A.'s home. Upon regaining custody, Ms. A. confined Marisol to a closet for several months, deprived her of sustenance resulting in her eating her own feces and plastic garbage bags to survive, and both physically and sexually abused her to the point of injury. During this period, Ms. A.'s sister and Ms. C. filed multiple reports of abuse with CWA to no avail. A housing inspector familiar with the signs of abuse discovered Marisol during a chance visit and reported the situation to the police. Despite Ms. C.'s eagerness to adopt Marisol, CWA has not begun the process of terminating Ms. A.'s parental rights and has not provided Marisol with counseling or support services.
 
Lawrence B. died on February 18, 1996 of AIDS-related illness at the age of nineteen. *fn2" Lawrence's mother died of AIDS in or around 1985 leaving him an orphan and he entered the foster care system in 1995, at age seventeen, pursuant to a voluntary agreement signed by his aunt who could no longer care for him. After taking custody, CWA failed to assess Lawrence's medical condition for almost two months and then shuttled him from one inappropriate placement to another. Lawrence first spent seven months in a diagnostic facility and then was transferred to a group home that lacked the medical staff needed to monitor his condition. In fact, CWA neglected even to inform the agency of Lawrence's HIV-positive status. Finally, CWA placed Lawrence in a group home aimed to assist teenagers in making the transition to independent living. CWA again failed to alert that agency to Lawrence's medical condition. Even when the agency notified CWA that Lawrence needed hospice care, CWA suggested that the staff simply take him to the hospital when necessary. Despite his deteriorating health, CWA recommended continued placement in the group home and maintained a goal of independent living in his case plan until his death.
 
Thomas C. is a fifteen-year old who has been in foster care since he was seven. In those eight years, Thomas endured numerous placements including a hospital, a diagnostic center, and a residential treatment center ("RTC"). In 1993, without adequate investigation, CWA approved Thomas' placement with Rev. D., a minister Thomas met at the RTC, who took him to South Carolina. There Rev. D. sexually abused Thomas who subsequently ran away. In 1994, Thomas was returned to the RTC where he now resides. He has since attempted suicide twice and has run away from the RTC only to return after facing hardship and abuse on the streets. CWA has failed to determine the appropriateness of the RTC placement, to pursue the possibility of adoption, or to provide Thomas with counseling.
 
Shauna D. is a two-year old who lives with Ms. D., her drug-addicted mother. CWA has failed to investigate reports of suspected abuse despite the fact that Ms. D. has already lost custody of her six other children. In September 1995, Ms. M., a friend who had been caring for Shauna, filed for formal custody. In November 1995, however, Ms. D. forcibly took Shauna from Ms. M.'s home. Despite repeated calls from Shauna's law guardian, her CWA caseworker has failed to investigate adequately reports of abuse or to ensure that Ms. D. is in a drug rehabilitation program.
 
Ozzie E. is a fourteen-year old who suffers from seizure disorder, brain lesions, and behavioral problems. In 1995, Ozzie's father placed him in foster care after finding himself unable to care for Ozzie. Although Ozzie and his mother, Ms. E., both want to be reunited, he remains in a group home because CWA has failed to provide any family preservation services to enable Ms. E. to care for him. Although CWA acknowledges that the group home is not equipped to address Ozzie's neurological problems, the agency has taken no steps to return Ozzie to his mother.
 
Darren F. and David F. are seven-year old twins who have been in foster care since they were one. In 1990, CWA placed the twins with their grandmother who was too old to care for them and from whom they were removed after she allowed their drug-addicted mother to live with them. In 1991, CWA placed the twins, who already were evidencing signs of psychological trauma, with Ms. R. who made efforts to address the children's special needs. Despite Ms. R.'s requests, CWA failed to provide the twins with treatment as their behavior deteriorated. Finally, a psychiatrist recommended that, because of their young age, they remain with Ms. R. but enroll in a day treatment center. CWA, however, placed the twins in an inappropriate residential center where they remain today and has risked their chance to be adopted by Ms. R.
 
Bill G. is a fourteen-year old who is mentally retarded and suffers from a mild form of cerebral palsy. His sister, Victoria G., is ten. In 1985, CWA placed them together in the home of Ms. H. pursuant to a finding of parental neglect. The children's permanency goal was to return to their parents, Mr. and Mrs. G., and the case plan outlined steps for their parents to follow in that regard. CWA, however, failed to monitor the parents' progress and the children remained with Ms. H. even after her legal authority had lapsed. In 1989, Mr. and Mrs. G. agreed to voluntary placement but, during their infrequent visits, beat the children. Despite all of these factors, CWA still failed to obtain a termination of parental rights and has considered returning them to their father after they have spent more than ten years in Ms. H.'s care.
 
Brandon H. is a seven-year old who was placed in foster care at birth because his mother was twelve at the time and in foster care herself. In early 1992, CWA placed Brandon with Ms. W. but did not file a petition seeking termination of parental rights until later that year. The court terminated those rights in 1994 but, despite Ms. W.'s willingness to adopt him, CWA still has not even taken steps to transfer Brandon's case to the agency's adoption division. CWA thus allows Brandon to remain in foster care without addressing his need for permanency.
 
Steven I. is a sixteen-year old who has developed severe psychiatric and emotional problems after spending his entire life in foster care. Steven exhibits violent behavior and, by age twelve, Steven had attempted to rape a nine-year old girl, had stabbed other children with pencils, and had lit several fires. After CWA ignored a recommendation that Steven receive long-term residential treatment, his behavior deteriorated to the point that, at age fifteen, he was committed to New York Hospital as a "sexual predator." Upon his release, CWA placed him in an inappropriate group home from which he ran away in 1994. He now lives on the streets and CWA has failed to locate him or to provide him with any treatment.

 See Complaint for Declaratory and Injunctive Relief at 27-62 [hereinafter "Complaint"].

 In support of their claims, plaintiffs specifically allege that defendants fail to:

 
(1) appropriately accept reports of abuse and neglect for investigation;
 
(2) investigate those reports in the time and manner required by law;
 
(3) provide mandated preplacement preventive services to enable children to remain at home whenever possible;
 
(4) provide the least restrictive, most family-like placement to meet children's individual needs;
 
(5) provide services to ensure that children do not deteriorate physically, psychologically, educationally, or otherwise while in CWA custody;
 
(6) provide children with disabilities, including HIV/AIDS, with appropriate placements;
 
(7) provide appropriate case management or plans that enable children to return home or be discharged to permanent placements as quickly as possible;
 
(8) provide services to assist children who are appropriate for adoption in getting out of foster care;
 
(9) provide teenagers adequate services to prepare them to live independently once they leave the system;
 
(10) provide the administrative, judicial, or dispositional reviews to which children are entitled;
 
(11) provide caseworkers with training, support, or supervision; and
 
(12) maintain adequate systems to monitor, track, and plan for children.

 See Complaint at 2-4.

 Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 which provides in pertinent part:

 
every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .

 42 U.S.C. § 1983. They allege that defendants have violated and continue to violate their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-28, 670-79a ("Adoption Assistance Act"), including the provision herein referred to as the Multiethnic Placement Act of 1994, 42 U.S.C. § 622(b)(9); the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-06a ("CAPTA"); provisions of the Medicaid Act, 42 U.S.C. §§ 1396a, 1396d(a) and (r); the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"); § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, 794a ("Rehabilitation Act"); Article XVII of the New York State Constitution; Articles 2, 3, 6, and 7 of the New York State Social Services Law; Articles 6 and 10 of the New York State Family Court Act; state regulations codified at 18 N.Y.C.R.R. §§ 400-484; and other state plans. Plaintiffs seek injunctive or declaratory relief as needed to remedy defendants' alleged violations and, further, request the appointment of

 Complaint at 108. Finally, plaintiffs ask this Court to retain jurisdiction over the matter to monitor the implementation of such relief.

 Before this Court are motions by both City and State defendants pursuant to Rule 12(b)(6), Fed. R. Civ. P., for an order dismissing the bulk of plaintiffs' federal constitutional and statutory claims as well as plaintiffs' state law claims. Also before the Court is plaintiffs' motion pursuant to Rule 23, Fed. R. Civ. P., for an order certifying this action as a class action on behalf of:

 
all children who are or will be in the custody of the New York City Child Welfare Administration ("CWA"), and those children who, while not in the custody of CWA, are or will be at risk of neglect or abuse and whose status is known or should be known to CWA[.]

 Notice of Motion for Class Certification at 1. Finally, City defendants have moved for an order bifurcating this action.

 DISCUSSION

 I. Motions to Dismiss

 Defendants seek dismissal of large portions of plaintiffs' complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief can be granted. In the alternative, defendants ask this Court either to decline to exercise supplemental jurisdiction over plaintiffs' state law claims or to find those claims non-justiciable. Finally, defendants ask this Court to refuse to decide plaintiffs' claims, City defendants relying on the Burford abstention doctrine and State defendants relying on the Younger abstention doctrine.

 In deciding a motion to dismiss, this Court must accept as true the factual allegations set forth in the complaint and must draw all reasonable inferences in plaintiffs' favor. See Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The Court, therefore, "may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon, 467 U.S. at 73; Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Further, "[a] court must construe pleadings liberally, and mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Aristotle P. v. Johnson, 721 F. Supp. 1002, 1004 (N.D. Ill. 1989) (citation omitted). In civil rights actions, courts must apply this standard with even greater force. See Bernheim, 79 F.3d at 321; Aristotle, 721 F. Supp. at 1004.

 A. Plaintiffs' Federal Constitutional Claims

 42 U.S.C. § 1983 establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. § 1983 is, therefore, a vehicle through which a private plaintiff may pursue a claim for an alleged constitutional violation by a person acting under color of state law. See Golden State Transit Corp. v. City of L.A., 493 U.S. 103, 105, 110 S. Ct. 444, 107 L. Ed. 2d 420 (1989); Maine v. Thiboutot, 448 U.S. 1, 4, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980). Plaintiffs thus properly rely on § 1983 to pursue their claims of federal constitutional deprivations.

 Defendants ask this Court to dismiss plaintiffs' first cause of action which alleges violations of their rights derived from the First, Ninth, and Fourteenth Amendments to the United States Constitution. Although plaintiffs' first cause of action contains more specific language, their federal constitutional claims can be divided loosely into two significant categories: (1) violation of plaintiffs' substantive due process right to protection from harm while in state custody; and (2) violation of plaintiffs' right not to be deprived of entitlements created by New York State law without due process. *fn3"

 
1. Substantive Due Process Claims

 Defendants move to dismiss the first significant component of plaintiffs' first cause of action in which they assert that defendants have, through their actions or inactions, violated plaintiffs' substantive due process right to be free from harm. Defendants argue that, unlike the custodial plaintiffs whose claims defendants do not challenge, those children who are not in ACS custody have no federal substantive due process right to be protected from harm in light of the Supreme Court's decision in DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). Defendants assert, therefore, that non-custodial plaintiffs fail to state a substantive due process claim upon which relief can be granted. This Court agrees. Indeed, plaintiffs concede that "the non-custodial plaintiffs' constitutional claim is limited to their right not to be denied the protections and benefits of the detailed state law regarding child protection without due process." Pls.' Mem. in Opp'n at 30. The following analysis of plaintiffs' substantive due process claims, therefore, applies only to custodial plaintiffs.

 Under certain circumstances, the federal Constitution imposes upon the government an affirmative duty to provide services and care to individuals in state custody. See DeShaney, 489 U.S. at 198. The Supreme Court first recognized this obligation by granting incarcerated prisoners the right to adequate medical care pursuant to the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Shortly thereafter, the Court extended this analysis and required the state to ensure the safety of involuntarily committed mental patients pursuant to the substantive component of the Fourteenth Amendment's Due Process Clause. See Youngberg v. Romeo, 457 U.S. 307, 314-25, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). The Court, interpreting this line of cases, has noted that "taken together, they stand . . . for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney, 489 U.S. at 199-200. Under the Youngberg line of cases, therefore, the government must provide to those individuals in its custody reasonably safe conditions of confinement and general freedom from undue bodily restraint. See Youngberg, 457 U.S. at 315-16.

 The Second Circuit has extended the reasoning of Youngberg to children who are the responsibility of the state. See Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245-46 (2d Cir. 1984); see also Doe v. New York City Dep't of Social Servs., 649 F.2d 134, 141 (2d Cir. 1981), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983). Indeed, in the child welfare context, that court has recognized that, "when individuals are placed in custody or under the care of the government, their governmental custodians are sometimes charged with affirmative duties, the nonfeasance of which may violate the constitution." Doe, 649 F.2d at 141. This Court agrees with the decision of other courts to extend to children in foster care a substantive due process right to protection from harm. See, e.g., Norfleet ex rel. Norfleet v. Arkansas Dep't of Human Servs., 989 F.2d 289, 291-93 (8th Cir. 1993); Yvonne L. ex rel. Lewis v. New Mexico Dep't of Human Servs., 959 F.2d 883, 892-93 (10th Cir. 1992); K.H. Through Murphy v. Morgan, 914 F.2d 846, 849-50 (7th Cir. 1990); Meador v. Cabinet for Human Resources, 902 F.2d 474, 476 (6th Cir.), cert. denied, 498 U.S. 867, 112 L. Ed. 2d 145, 111 S. Ct. 182 (1990); Aristotle P. v. Johnson, 721 F. Supp. 1002, 1008-10 (N.D. Ill. 1989).

 The parties agree that custodial plaintiffs have a constitutional right to be free from harm. *fn4" The issue facing this Court with respect to custodial plaintiffs, therefore, is not whether they are entitled to protection from harm but, rather, how broad that protection must be. The Supreme Court has held that the right to be free from harm encompasses the right to essentials of care including adequate food, shelter, clothing, and medical attention. See Youngberg, 457 U.S. at 324. Additionally, the state must provide reasonably safe conditions of confinement. See id. at 315-16. Custodial plaintiffs, however, ask this Court to take an expansive view and recognize a substantive due process right to be free not only from physical harm but also from psychological, emotional, and developmental harm. Defendants, on the other hand, urge this Court to take a narrower approach to custodial plaintiffs' substantive due process claims.

 The Court is inclined, at this juncture, to take a broad view of the concept of harm in the context of plaintiffs' substantive due process claims. Clearly, the state is required to protect children in its custody from physical injury. This Court further finds that custodial plaintiffs have a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being. As the United States District Court for the Northern District of Illinois reasoned, "[a] child's physical and emotional well-being are equally important. Children are by their nature in a developmental phase of their lives and their exposure to traumatic experiences can have an indelible effect upon their emotional and psychological development and cause more lasting damage than many strictly physical injuries." B.H. v. Johnson, 715 F. Supp. 1387, 1395 (N.D. Ill. 1989); see also Aristotle P., 721 F. Supp. at 1009-10 (finding that "the fact that the plaintiffs' injuries are psychological rather than physical is of no moment" and that such injuries ...


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