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April 6, 1998

TAMMY YOUNG, Plaintiff,
COUNTY OF FULTON; FULTON COUNTY DEPARTMENT OF SOCIAL SERVICES; KAREN HASENFUSS, KATHLEEN PAPE, and PENNY LOCKWOOD, Individually and in their official capacity as employees of the County of Fulton; JEANNE D. JOHANNES, Individually and in her official capacity as Commissioner of the Department of Social Services of Fulton County; and JOHN DOE and JANE DOE, unknown employees of the County of Fulton, Defendants.

The opinion of the court was delivered by: HURD


 The plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging that her due process rights were violated under the First, Fifth, and Fourteenth Amendments to the United States Constitution. *fn1" Defendants, now move to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment in accordance with Fed. R. Civ. P. 56. *fn2"

 The municipal defendants, the County of Fulton and the Fulton County Department of Social Services ("DSS"), maintain that there is no evidence of any custom, policy, or practice which resulted in a deprivation of plaintiff's constitutional rights. The individual defendants claim that they are immune from liability as a result of the qualified immunity doctrine. Thus, the defendants move to have the plaintiff's complaint dismissed in its entirety. Oral argument was held and decision was reserved.


 This action was initially filed on November 15, 1994. However, the controversial events in question involve a period of time between September 13, 1993, and October 21, 1993. It is alleged that during this period the plaintiff was wrongfully denied her right of visitation with her children. Specifically, on September 13, 1993, the plaintiff was advised that visitation had been suspended pending future psychological evaluations of the children. In response, the plaintiff filed a petition with the Fulton County Family Court ("Family Court") seeking to enforce her visitation rights, and on October 21, 1993, the Family Court ordered that visitation resume. Consequently, the plaintiff alleges in her complaint that her constitutional rights have been violated.

 On February 1, 1988, the plaintiff gave birth to twin boys ("twins"). Within approximately twenty-two months, on December 27, 1990, DSS filed a neglect petition charging the plaintiff with parental neglect of the twins. Levied with a neglect petition, on August 7, 1991, the plaintiff admitted to the charges under section 1012(f) of the Family Court Act. As a consequence, the plaintiff and her husband were placed under the supervision of DSS for a period of one year beginning August 7, 1991, and ending on August 7, 1992. Sometime before the expiration of the DSS supervision, the plaintiff and her husband had another child, separated, and later divorced.

 On September 16, 1992, plaintiff voluntarily placed her twins in foster care, ostensibly for the purpose of helping the twins and assisting her with the ability to cope with the twins' violent nature. Allegedly, the twins' aggression was directed at various individuals, including a younger sibling. Therefore, on September 16, 1992, one twin was placed in an independent foster home, while the other twin was placed the following day with one of the defendants, Karen Hasenfuss ("Hasenfuss"), a parental aid and foster parent. Nevertheless, on September 29, 1992, DSS filed another neglect petition, this time charging the plaintiff with neglect of all three children. The petition, signed by defendant Jeanee D. Johannes ("Johannes"), the Commissioner of DSS, set forth a number of instances and acts allegedly involving neglect on the part of the plaintiff with respect to her three children.

 Again, on March 9, 1993, for the second time, the plaintiff admitted that she was guilty of the charge of neglect. Therefore, the Family Court ordered that the twins be placed in the custody of DSS for one year beginning on March 9, 1993, and ending on March 9, 1994. In addition, the plaintiff was directed that she would be under the supervision of DSS. During this period, defendant Kathleen Pape ("Pape"), an employee with the DSS, was assigned as plaintiff's caseworker. While Hasenfuss continued to be plaintiff's parental aid until March 9, 1993, she nevertheless remained a foster parent to one of the twins pursuant to the September 16, 1992 placement. Eventually, in December 1992, both twins were reunited and under the care of foster parent Hasenfuss.

 On October 21, 1993, concurrent with the initial hearing held in the Family Court, Judge David F. Jung directed that plaintiff's visitation rights be reinstated and she be allowed to visit with the her children. Jung's directive was based on the fact that the DSS had failed to comply with the regulations requiring that DSS first seek a court order prior to suspending the plaintiff's visitation rights. 18 NYCRR § 430.12 (1997). Currently, the plaintiff has custody of all three of her children. Therefore, the issue is whether the defendants' failure to comply with the state law and regulations constitute a violation of the plaintiff's Federal constitutional due process rights.


 A. Summary Judgment Standard

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most ...

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