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WHALEN v. COUNTY OF FULTON

September 26, 1996

GEORGE T. WHALEN and ELIZABETH M. WHALEN, individually and as parents and legal guardians of MICHAEL W. WHALEN, an infant, Plaintiffs,
v.
THE COUNTY OF FULTON; THE FULTON COUNTY DEPARTMENT OF SOCIAL SERVICES; JEANNE D. JOHANNES, Individually and in her Official Capacity; JOHN ROGERS, Individually and in his Official Capacity; MALINDA ARGOTSINGER, Individually and in her Official Capacity; KAREN GLOVER, Individually and in her Official Capacity; JUDITH VANHEUSEN, Individually and in her Official Capacity; THE COUNTY OF MONTGOMERY, THE MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES, ROBERT L. REIDY, Individually and in his Official Capacity; MOLLY JOHNSON, Individually and in her Official Capacity; CYNTHIA HALLAM, Individually and in her Official Capacity, Defendants.



The opinion of the court was delivered by: SCULLIN

 Introduction

 Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 alleging a violation of their rights under the United States Constitution. Specifically, the plaintiffs allege that the acts and omissions of the Montgomery and Fulton County Departments of Social Services and several individual social workers deprived the plaintiffs of their: (1) First Amendment right to freedom of intimate association, (2) Fourteenth Amendment substantive and procedural due process rights, and their (3) constitutional right of access to the courts. The plaintiffs also claim the same acts by the defendants constitute common law fraud, intentional interference with custody and visitation, negligent interference with custody and visitation, intentional infliction of emotional distress, and negligent infliction of emotional distress, under state law.

 Presently before the court are two motions for summary judgment brought by the Montgomery and Fulton County defendants, who are represented separately in this action. Defendants, Fulton County, Jeanne D. Johannes, John Rogers, Malinda Argotsinger, Karen Glover, and Judith VanHeusen, move for summary judgment for failure to state a claim upon which relief can be granted. Defendants, Montgomery County, Robert L. Reidy, Molly Johnson, and Cynthia Hallam, move for summary judgment for failure to state a claim, and in the alternative under "qualified immunity." *fn1"

 Background

 This case arises out of claims made by the plaintiffs, George and Elizabeth Whalen, on behalf of themselves and their infant adopted son Michael, concerning their alleged rights with respect to Michael's biological sister, Elizabeth Waite.

 Michael

 Michael Whalen was born in January of 1986 in Montgomery County to Sherry and Michael V., his biological parents. In September of 1986, Michael's biological parents placed him in the care of Montgomery County Department of Social Services ("DSS"), who subsequently placed him in foster care. Shortly thereafter, Mr. and Mrs V. moved from Montgomery County to Fulton County. In January of 1989, Mr. and Mrs. V. voluntarily surrendered their parental rights to Michael to the care and custody of the Montgomery DSS. In April of 1989, The Montgomery County DSS placed Michael for pre-adoption with the Whalens, who resided in Orange County. The adoption was finalized in June of 1990. Throughout the adoption process, the Whalens expressed an interest in adopting Michael's biological sister Elizabeth should she become available for adoption.

 Elizabeth Waite was born in June of 1987 in Fulton County, also to Sherry and Michael V. In October of 1989, she was removed from her biological mother's home and taken into custody by the Fulton County Department of Social Services ("DSS"). *fn2" From October 1989 to January 1991, Elizabeth was placed in temporary foster care with the Waites, locally in Fulton County, with the intent of returning her to her biological mother.

 Elizabeth Waite's biological mother voluntarily surrendered her parental rights to Elizabeth in January 1991. In June of 1991, Elizabeth's biological father surrendered his parental rights. That same month, the Whalens filed a petition with the Fulton County Family Court requesting that they be granted custody of Elizabeth. In September the Waites filed a petition requesting custody of Elizabeth. Thereafter, in November of 1991, the Fulton County Family Court conducted a custody hearing, after which it granted temporary custody of Elizabeth to the Waites, and awarded visitation rights to Michael.

 On April 8, 1992, the Family Court issued an order granting permanent custody to the Waites, finding it to be in Elizabeth's best interests. An adoption petition was then filed by the Waites, and a final order granting the petition was entered in May of 1992. The Whalens appealed the order arguing that Fulton County DSS failed to comply with applicable statutes and regulations by not placing the siblings together. The Appellate Division, Third Department, affirmed the Family Court's decision finding that the Family Court correctly applied the "best interests" standard in reaching its decision. See Matter of George L. v. Comm'r of Fulton County Dep't of Social Servs., 194 A.D.2d 955, 599 N.Y.S.2d 319, 320 (3d Dep't 1993).

 In October of 1992, while their appeal to the N.Y.S.A.D. was pending, plaintiffs initiated this action. Thereafter, defendants moved for partial summary judgment on the plaintiffs' § 1983 claims on the grounds of qualified immunity. In a motion decision on March 25, 1993, this Court denied defendants' motions without prejudice pending further discovery. *fn3"

 Further discovery has now taken place and defendants have moved for summary judgment with respect to all claims on the basis that they fail to state a claim upon which relief can be granted. *fn4"

 Discussion

 A. Summary Judgment

 Under Rule 56(c), summary judgment is warranted if, when viewing the evidence in a light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). A genuine issue of material fact is one that could be decided in favor of either party. Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). To survive the motion for summary judgment the non-movant must do more than present evidence that is merely colorable, conclusory, or speculative. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-movant must demonstrate that there are issues of fact that must be decided by a fact finder, because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). The Court will first address the plaintiffs' § 1983 claims.

 In order to state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States. Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994), cert. denied, U.S. , 133 L. Ed. 2d 18, 116 S. Ct. 53 (1995) quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). In this case, the plaintiffs allege that the defendants violated the plaintiffs' constitutional rights by placing Elizabeth in temporary foster care in 1989. These alleged constitutional deprivations all stem from Elizabeth's placement with a local family in Fulton County rather than with the Whalens in Orange County. The Whalens allege that the defendants violated their First Amendment associational right to live with Elizabeth, their Fourteenth Amendment substantive and procedural due process rights in being able to adopt and live ...


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