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September 15, 1998

SYLVIA RODRIGUEZ, individually and on behalf of her minor child, LES ANDREW KELLY, Plaintiffs, against MARJORIE McLOUGHLIN, individually and as Executive Director of Cardinal McCloskey Children's and Family Services, BARBARA McMURRAY, individually and as Foster Boarding Home Director of Cardinal McCloskey Children's and Family Services, CARDINAL McCLOSKEY CHILDREN'S AND FAMILY SERVICES, NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES, NEW YORK CITY CHILD WELFARE ADMINISTRATION, and THE CITY OF NEW YORK, Defendants.

The opinion of the court was delivered by: WOOD


 WOOD, U.S.D.J.:

 This action arises out of Cardinal McCloskey Children's and Family Services's ("McCloskey") removal of a former foster child, Les Andrew Kelly ("Andrew"), on an alleged emergency basis from the home of his former foster, now adoptive, mother, Sylvia Rodriguez, on March 18, 1994. Sylvia Rodriguez, individually and on behalf of her son Andrew, alleges under 42 U.S.C. § 1983 that the removal of Andrew violated their right to procedural due process guaranteed by the Due Process Clause of the Fourteenth Amendment because (1) the circumstances of Ms. Rodriguez's foster children, Andrew and his foster brother Thomas Green, on March 18, 1994 did not justify an emergency removal, and therefore she was entitled to notice and an opportunity to be heard prior to their removal, (2) Ms. Rodriguez was not provided with either adequate post-removal notice or opportunity to be heard to contest the removal, and (3) Ms. Rodriguez was not provided an adequate opportunity to be heard to contest the denial of her request to visit Andrew. Defendants move to dismiss the complaint with prejudice, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 Defendants' motion presents the Court with a series of novel and difficult questions concerning the scope and character of the procedural protections of the Due Process Clause of the Fourteenth Amendment in the context of an alleged emergency removal of a child from a New York foster mother who was in the final stages of adopting her foster child, whom she had cared for continuously since his first weeks of infancy. As explained in the discussion below, the Court holds that there is a constitutionally protected liberty interest in the stability and integrity of the relationship between such a foster mother and foster child. Further, the Court also holds that the delay in providing Ms. Rodriguez with notice and an opportunity to be heard to contest (1) the removal and (2) the denial of Ms. Rodriguez's request to visit Andrew for approximately three months following the removal violated the Due Process Clause's fundamental requirement that an aggrieved party be provided with an opportunity to be heard "'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965)); see Brock v. Roadway Express, 481 U.S. 252, 261, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987) (quoting same). While the Court denies defendants' motion in these respects, the Court also holds that the circumstances prior to the removal justified McCloskey's decision to remove Andrew (along with his former foster brother Thomas Green) on an emergency basis, and that the individual defendants are entitled to qualified immunity. Accordingly, the Court grants defendants' motion, which it treats as a motion for summary judgment, as to plaintiff's claims that there was no basis for emergency removal, and as to plaintiff's claims against the individual defendants.

 I. Background

 To address Ms. Rodriguez's constitutional claims, it is necessary to understand the circumstances of Ms. Rodriguez's foster care relationship with Andrew from its inception through Andrew's return to Ms. Rodriguez's care subsequent to his removal on March 18, 1994. Except as otherwise noted, the Court finds there is no genuine issue as to these facts.

 Andrew was born on March 15, 1990; his biological mother abandoned him immediately following his birth. Thirteen days after his birth, McCloskey, the authorized foster care agency for the City of New York, placed Andrew in the certified foster home of Ms. Rodriguez pursuant to a foster family agreement between McCloskey and Ms. Rodriguez. Andrew lived continuously with Ms. Rodriguez for his first four years until McCloskey removed Andrew from Ms. Rodriguez's residence on March 18, 1994.

 Prior to Andrew's removal, McCloskey caseworkers and administrators viewed Ms. Rodriguez as an affectionate and caring foster parent who consistently provided for Andrew's basic needs. Venton Monplaisir, the McCloskey caseworker responsible for Andrew's case through March 18, 1994, observed that a strong bond had formed between Ms. Rodriguez and Andrew, that Ms. Rodriguez ably provided for his needs, and that Andrew called Ms. Rodriguez "Mommy" and depended on her as such. McCloskey case worker notes reveal that Andrew had limited contact with his biological mother, meeting her only a few times in his first three years. By January 21, 1992, McCloskey had determined that it would not be in Andrew's best interest to return to his biological mother, and that the permanent goal for Andrew was adoption. By that time, McCloskey considered Ms. Rodriguez as a possible adoptive parent for Andrew. Mr. Monplaisir believed that adoption by Ms. Rodriguez was a good option for Andrew. In McCloskey's October 26, 1993 Annual Recertification Study for Ms. Rodriguez, McCloskey noted that there was "very little chance of abuse or neglect; foster mother knows the dangers and will not subject the children consciously." (Pl. Exh. 29 at CM 01225.) The report also noted that Ms. Rodriguez "has available resources of neighbors and family members, however, she must be willing to trust people and be more positive," and "recommended that she test her neighbors so that she could use them to baby sit more often." (Id. at CM 01228.)

 A family court order dated June 25, 1993 terminated Andrew's biological mother's parental rights; legal custody over Andrew was then transferred to McCloskey. On August 9, 1993, Ms. Rodriguez and McCloskey entered into an Adoptive Placement Agreement. In November 1993, McCloskey reported to the New York Child Welfare Administration ("CWA"), that its new goal for Andrew was to finalize Ms. Rodriguez's adoption. All the paperwork involved in Ms. Rodriguez's adoption application was filed before the March 18, 1994 removal from her home; McCloskey reported to CWA that at the time of his removal, McCloskey was awaiting the conclusion of the adoption finalization process.

 On March 18, 1994, Ms. Rodriguez was the foster mother not only for Andrew, but also for Thomas Green, who was then three years old. Ms. Rodriguez's grandson, Edwin Rodriguez, was also living with her. Edwin was twelve years old on March 18, 1994 and a student in special education at P.S. 75 in Queens. On March 18, 1994, when Mr. Monplaisir arrived at Ms. Rodriquez's home for a scheduled visit, he found only Edwin supervising Andrew and Thomas. Mr. Monplaisir, the only direct witness to the state in which he found Edwin, Andrew, and Thomas testified at deposition:

I believe Les Andrew Kelly answered the door. Thomas Green, Andrew Kelly and Edwin, who is alleged to be her grandson, was at home. Ms. Rodriguez was not in that house. . . . I did have a concern, and I questioned [Edwin] on why he wasn't in school that day. And I was there for some time, and my question was who are you here with or who's supervising the kids. He appeared to be having some difficulty managing the two kids there on his own, and he had said something about someone next door or someone across the hall looking after them or something, but they weren't in the home the entire time that I was there.
So I did go over to the neighbor's apartment and questioned them in terms of if they were, indeed, babysitting or watching after the kids . . . one person told me something about well, they can always knock on my door if it's an emergency . . . Even after I questioned them, no one took the initiative to come over to the apartment, because that was the question at hand[.] But then there was another individual, a young lady in that home who seemed at to be pretty concerned that questioned me if Ms. Rodriguez would get in trouble for the kids being left alone. But then still no one . . . no one took the responsibility of coming back over to the apartment to stay with the children. So, as a result, I ended up staying at the apartment.
Then Ms. Rodriguez's daughter came by while I was there. So I kind of figured well, I'd ask her maybe she's going to supervise the children there, but she wasn't concerned about staying there. She was just coming to get something and to get out. She had some appointment somewhere else.
And then once again, the kids are running all over the place, and I could see that Edwin was having [a] difficult time managing them, during the time I was there. I mean I noticed he did try to . . . put something together for them to eat. And I felt he was in a really bad situation because I felt a little overwhelmed, and then at one point I believe when I was walking around the apartment, both Andrew Kelly and Thomas Green ran out in the hallway, making -- yelling, laughing, whatever. When I finally notice they weren't in the apartment, when I ran out in the hallway, they were right at the top of the stairs, which are some pretty steep steps of stone, and I got really worried and concerned about that, and I then ran outside and had them come back in the apartment . . . .
I know I was there for at least two hours. . . . I then contacted the agency and spoke to the administrator.

 (Def. Exh. N. at 198-202.) Mr. Monplaisir left Ms. Rodriguez's apartment to contact his supervisor. Before he left to contact his supervisor, Mr. Monplaisir also observed Edwin trying to clean the children, but he did not recall whether he was bathing them, or merely washing their faces. (Id. at 203.) Mr. Monplaisir testified that Edwin "was having a very difficult time. . . he appeared to me to be very overwhelmed and very worried and concerned that I was then there without his grandmother, but he appeared to me to be very overwhelmed." (Id. 204-05.) Because Mr. Monplaisir's supervisor was not available, he spoke with Barbara McMurray, director of McCloskey's foster boarding home, who in turn contacted his supervisor. Ms. McMurray instructed Mr. Monplaisir to return the Ms. Rodriguez's apartment and stay with the children. After returning to Ms. Rodriguez's apartment, Mr. Monplaisir was instructed by his supervisor to remove Andrew and Thomas from Ms. Rodriguez's home, which he did. *fn1"

 On the morning of March 18, 1994, Ms. Rodriguez was away from her home because she had a scheduled court appointment regarding the custody of Edwin. Ms. Rodriguez alleges that on that morning she had arranged for her neighbor, Myra Aponte, to baby-sit Andrew and Thomas while she was in court. Ms. Rodriguez maintains before leaving her apartment building on the morning of March 18, 1994, she informed another neighbor, Harriet Bentley, that Ms. Aponte had taken her own children to school, and would return within 10-15 minutes to care for Andrew and Thomas. Ms. Rodriguez also asserts that Ms. Bentley did check in on Ms. Rodriguez's apartment while Mr. Monplaisir was with the children, to make herself available to them in event of an emergency, which she told Mr. Monplaisir. Ms. Rodriguez's position is that she left Andrew and Thomas in the care of Edwin because she expected Ms. Aponte to return to the children momentarily. Ms. Rodriguez contends that Edwin was capable of feeding, bathing, and taking care of Andrew and Thomas. Ms. Rodriguez claims that Edwin's status as a student in special education does not adequately convey his capacities taking care of Andrew and Thomas. Ms. Rodriguez also points out that two of her neighbors were baby-sitters certified by McCloskey. Defendants dispute Ms. Rodriguez's depiction of the arrangements that she had in place on the morning of March 18, 1994 and Edwin's ability to care for Andrew and Thomas.

 McCloskey made arrangements for Andrew's and Thomas's transfer to another foster home contemporaneously with their removal. On March 18, 1994, McCloskey did not provide Ms. Rodriguez with written notice of Andrew's removal, as it would have if the removal had been planned. When Ms. Rodriguez telephoned McCloskey upon her return from court to find out what had happened, she received notice that McCloskey had removed Andrew and Thomas. On or about the day of Andrew's removal, McCloskey submitted a Report of Suspected Child Abuse or Maltreatment to the New York State Central Registry. Thereafter, CWA's Office of Confidential Investigations ("OCI") commenced an investigation into the circumstances surrounding Andrew's removal.

 In a letter dated March 31, 1994, a staff attorney from Bronx Legal Services, Nanette Schorr, wrote to McCloskey on Ms. Rodriguez's behalf requesting that visitation be set up immediately. On April 6, 1994, McCloskey responded that OCI had not completed its investigation, and that while the OCI investigation is pending, McCloskey was evaluating whether visitation would be in the best interest of the child. Ms. Rodriguez subsequently applied for an Independent Review and a Fair Hearing concerning the removal of Andrew. McCloskey believed that its charges of neglect against Ms. Rodriguez would be confirmed by the OCI investigation. In a handwritten Report dated April 19, 1994, OCI determined that there was no credible evidence to support the charges of neglect against Ms. Rodriguez, and concluded that the Report of Suspected Child Abuse or Maltreatment was unfounded. The OCI report directed training for Ms. Rodriguez in the area of the proper supervision of foster children. OCI sent a copy of its Report to McCloskey on June 20, 1994. The parties dispute whether McCloskey had information about OCI's conclusion as early as May 27, 1994. (See Pl. 56.1 PP 105-07; Def. Resp. 56.1 PP 105 -07.)

 Before OCI sent a copy of its report to McCloskey, Dr. Lawrence Fantl, McCloskey's in-house psychologist, conducted an examination of Andrew, on June 13, 1994, to evaluate Andrew's adjustment to his new foster home and to assist McCloskey in determining what was in Andrew's best interest. Dr. Fantl concluded, among other things, that Andrew was adjusting well to his new foster home. On June 15, 1994, a scheduled Fair Hearing was adjourned until July 13, 1994 because the Administrative Law Judge determined that an Independent Review should be conducted first. On June 15, 1994, McCloskey sent Ms. Rodriguez written notice of removal of Andrew from her home. On June 15, 1994, Ms. Rodriguez's attorney again requested that Ms. Rodriguez be allowed to visit Andrew.

 Ms. Rodriguez was permitted to visit Andrew for the first time on June 27, 1994. An Independent Review Hearing was conducted on June 28, 1994. On July 8, 1994, a second visit between Ms. Rodriguez and Andrew took place. McCloskey reported to CWA that these two visits "were closely supervised by the social worker and the child appeared to be very attached to Ms. Rodriguez, [who] was also very affectionate with the child . . . ." On July 11, 1994, CWA rendered its decision on Independent Review and ordered McCloskey to return Andrew to Ms. Rodriquez's care. In its decision, CWA noted that McCloskey's decision not to allow "visiting during the OCI investigation . . . seemed curious since the child would not have been endangered by the visits per se," and that this decision was questionable in view of the fact that "visiting could have helped the child's understanding of the situation." (Pl. Exh. 35 at CM 01755.) The Independent Review further concluded that following a ninety day period of close supervision, "the adoption process should be reinitiated." (Id.) On July 12, 1994, Ms. Rodriguez's counsel withdrew her request for a Fair Hearing in view of the fact that Ms. Rodriguez had succeeded at Independent Review in restoring Andrew to Ms. Rodriguez's care.

 Andrew's adoption process resumed January 4, 1995. Ms. Rodriguez's adoption of Andrew was finalized on August 17, 1995.

 II. Discussion

 A. The Standard

 Rule 12(b) of the Federal Rules of Civil Procedure provides that if matters outside the pleadings are presented to the Court, and the Court does not exclude that evidence, the motion shall be treated as one for summary judgment and "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." In this case, there has been extensive discovery, and prior to permitting defendants' motion, the parties exchanged extensive Local Civil Rule 56.1 Statements. These Statements assert, in detail, the facts each party views as material to defendants' motion, and append portions of the documentary record to support each statement. The Court then held a conference to review these statements and evaluate the utility of a summary judgment motion. Thus, both parties have had an opportunity to present pertinent facts raised by defendants' motion, and the Court treats defendants' motion as a motion for summary judgment under Rule 56. See Groden v. Random House, Inc., 61 F.3d 1045, 1052-53 (2d Cir. 1995) (essential inquiry is whether non-movant should reasonably have recognized possibility that motion might be treated as one for summary judgment or was taken by surprise and deprived of reasonable opportunity to meet facts outside the pleadings).

 On a motion for summary judgment, a court "cannot try issues of fact; it can only determine whether there are issues to be tried." Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (citations and internal quotation marks omitted). To prevail on a motion for summary judgment, the moving party therefore must show that there are no such genuine issues of material fact to be tried, and that he or she is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Citizens Bank v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," which includes identifying the materials in the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. Once a motion for summary judgment is made and supported, the non-moving party must set forth specific facts that show that there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Although a court considering a motion for summary judgment must view all evidence in the light most favorable to the non-moving party, and must draw all reasonable inferences in that party's favor, Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993), the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). If, based on the submissions to the court, no rational fact-finder could find in the non-movant's favor, there is no genuine issue of material fact, and summary judgment is appropriate. See Anderson, 477 U.S. at 250.

 Title 42, United States Code § 1983 provides a federal cause of action for "deprivations of any rights, privileges, or immunities secured by the Constitution and laws." To state a claim upon which relief may be granted under § 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) (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)).

 Defendants move for summary judgment on several grounds which, if accepted, would entitle them to judgment. First, defendants argue that plaintiff does not have a "liberty" interest that falls within the Fourteenth Amendment's protection. Second, defendants contend that even assuming that plaintiff has a liberty interest under the Due Process Clause, plaintiff received all the process that was constitutionally due to her. Third, defendants argue that an Article 78 proceeding under the New York Civil Practice and Rules is plaintiff's exclusive ...

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