visitation rights suspended. See Zappala v. Albicelli, 954 F. Supp. 538, 547 (N.D.N.Y. 1997).
The numerous conclusory allegations that the individual defendants engaged in a conspiracy to deprive the plaintiff of such rights, even assuming that such a conspiracy existed for the purpose of this motion, is no evidence that such acts constituted an official policy, custom, or practice of the municipal defendants. In any event, such actions on behalf of the individual defendants would be beyond the scope of their employment and authority, and could not be imputed to the municipal defendants. As a result, the action will be dismissed against the County of Fulton and DSS. See Reynolds v. Strunk, 688 F. Supp. 950, 959 (S.D.N.Y. 1988).
C. Qualified Immunity Standard
The doctrine of qualified immunity protects government officials from suits against them in their individual capacity for money damages where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). A right is clearly established if "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Three factors are utilized to determine whether a right was clearly established: "(1) whether the right in question was defined with 'reasonable specificity'; (2) whether the decisional law of the Supreme Court and the Appellate Circuit Court support the existence of the right in question; and (3) whether pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful." Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 430 U.S. 962 (1992). Even if a right is clearly established, "the defendants may nonetheless establish immunity by showing that reasonable persons in their position would not have understood that their conduct was within the scope of the established prohibition." In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996).
The individual defendants, claiming that they are entitled to the privilege of qualified immunity, have moved for summary judgment and dismissal of the complaint in its entirety. With respect to Hasenfuss, she acted as the plaintiff's homemaker, parental aid, and the foster parent to the twins. There is no evidence that she denied the plaintiff's right to visitation between September 13, 1993, and October 21, 1993. Consequently, the evidence does not demonstrate that Hasenfuss was personally involved in the alleged deprivation of plaintiff's constitutional rights. Such circumstances alone would entitle Hasenfuss to dismissal of the complaint. However, it is apparent from the doctrine of qualified immunity, that Hasenfuss is entitled to summary judgment dismissal of the plaintiff's complaint as against her.
At the time her visitation privileges were denied, the plaintiff did not have custody of the twins because she had agreed to place them in foster care. It is without question that parents have a constitutional right to the custody of their children. See Hodgson v. Minnesota, 497 U.S. 417, 484, 111 L. Ed. 2d 344, 110 S. Ct. 2926 (1990). As a consequence, it is clearly established that a mother enjoys a constitutionally protected liberty interest in the custody of her children, affording a pre-deprivation hearing pursuant to due process of law. Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)(citing Stanley v. Illinois, 405 U.S. 645, 649-58, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972)). However, as equally clear is the well established principle allowing government officials to effect a temporary deprivation of a parent's custody, absent parental consent or court order, where presented with an exigency or emergency situation. Robison, 821 F.2d at 921.
The plaintiff has failed to set forth even one case which establishes that visitation, as opposed to custody, is a constitutionally protected liberty interest of a parent who does not have custody.
Without a clearly established right of which a reasonable person would have known, the defendants Pape, Lockwood, Johannes, and Hasenfuss, are therefore immune from liability under qualified immunity doctrine. Although they may have failed to comply with the requirements of New York state law and the applicable regulations providing that a denial of visitation rights be preceded by a court order, the conclusion remains unchanged. The question presented is not whether the individual defendants violated state law, but whether they violated plaintiff's federal constitutional or statutory rights. See Doe v. Connecticut Dep't of Child Abuse Services, 911 F.2d 868, 869 (2d Cir. 1990); see also Davis v. Scherer, 468 U.S. 183, 194 n.2, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984)("Neither federal nor state officials lose their immunity by violating the clear command of a statute or regulation - of federal or of state law - unless that statute or regulation provides the basis for the cause of action sued upon.").
Finally, plaintiff has made a number of allegations that the individual defendants were engaged in a conspiracy to take the twins from her permanently. The plaintiff has offered no evidence, only conclusions to support this claim, which, as noted above, is not sufficient to successfully defeat a summary judgment motion.
Accordingly, it is
1. The defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 is GRANTED; and
2. The Clerk is directed to enter judgment dismissing the complaint in its entirety against all defendants.
IT IS SO ORDERED.
David N. Hurd
United States Magistrate Judge
Dated: April 6, 1998
Utica, New York.