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September 29, 1998


The opinion of the court was delivered by: LARIMER


 Plaintiffs, Kimberly Adams ("Mrs. Adams") and LeVerne E. Adams, Jr. ("Mr. Adams"), commenced this action under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. The complaint asserts one cause of action under the ADA against two defendants: the Monroe County Department of Social Services ("MCDSS" or "the county") and the New York State Department of Social Services ("NYSDSS" or "the state"). The county has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The state has moved to dismiss the complaint pursuant to Rule 12(b)(6).


 The complaint alleges the following facts. Mrs. Adams is a blind person. *fn1" She and Mr. Adams have a son who was born to them in 1983. In early 1993, plaintiffs decided that they would like to adopt a child, so they contacted MCDSS for assistance. In March 1993, plaintiffs enrolled in MCDSS's "Model Approaches to Partnership and Parenting" ("MAPP") classes to make them eligible to adopt. They successfully completed the MAPP classes in May 1993.

 Plaintiffs allege that in April 1993, they expanded their interests beyond adoption to include becoming foster parents, which often involves children with behavioral problems or other special needs. The county contends that plaintiffs did not communicate this interest to MCDSS until May 1994.

 After completing the MAPP classes, plaintiffs began contacting MCDSS once a week to see if it had a child available for them. Every week the answer was negative.

 On June 1, 1994, Mrs. Adams met with Mary Lou Miller and Laurie Bosso, who were respectively a Home Finding Supervisor and a Home Finding Caseworker at MCDSS. According to the complaint, Miller allegedly told Mrs. Adams that because of her blindness, no foster children would be placed in her home.

 A transcript of that meeting, *fn2" however, shows that Miller did not flatly state that the Adamses would not be considered for foster care. At one point, Miller told Mrs. Adams that MCDSS had been looking for foster parents for a certain four-year-old boy and that Mrs. Adams was not considered because the child was "extremely active," and that "with your handicap and your sight limitations it would be very difficult to supervise a child like that." Affidavit of Kimberly Adams (Item 16), Ex. G at 4. She added:

I think we know from learing [sic] in the past before, that is [sic] has taken two parents to supervise this child. And I think you would have great concern, I would personally, and I think also from a liability standpoint as far as your [sic] concerned. If something should happen to that child, on any day, you would be liable, we would be liable and I dont [sic] think we want -- I know we don't want to put you in that position -- and we certainly don't want to put ourselves in that position.

 Id. at 4-5. Miller went on to explain that unlike an adopted child, a foster child "will still be returning home to its biological parents," who remain "very much involved" in the care of the child. Id. at 5. As an example, she also stated that another woman who walked with a cane and could not walk very fast was not able to adequately supervise a very active child, adding that "we have to think of what that childs [sic] needs are." Id.

 Mrs. Adams then pointed out that her husband would also be available to supervise the child. In response, Miller expressed concern because Mr. Adams would be gone for long periods of time. Mrs. Adams stated that Mr. Adams worked at one job from 3:00 p.m. to 11:30 p.m. (presumably five days a week), and at a second job from 9:00 a.m. until 1:00 p.m. one day a week, and from 11:00 p.m. to 7:00 a.m. on Sunday nights. Id. at 6.

 Miller also stated, "I think particularly there may be a child who is freed for adoption, the liability issue would not be a concern. Because I see you've done a very good job with your own child." But, she added, children coming into foster care are often difficult to handle and require special attention, which a blind person might not be able adequately to provide. Id. at 8. Plaintiff then conceded that she "would not accept a child in my home that would start fires. I could not handle a child personally that is in a wheelchair, or has seizures." She maintained, though, that she would be able to handle many other types of children. Id. at 9.

 In response, Miller stated that she remained concerned about liability issues, particularly when a child would be outdoors. For example, she stated, if Mrs. Adams took her son and foster child to a playground, and the foster child fell off a swing, plaintiff might not be aware of it immediately and could be liable to the biological parents. Id. She also stated that because many of the children in foster care had disciplinary problems, some of them "learn to take advantage of your lack of sight" and would try to "see how much else they could get away with." Id. at 10.

 On August 1, 1994, plaintiff retained an attorney (who no longer represents her), who wrote MCDSS a letter alleging a violation of the ADA. The record does not contain any response from MCDSS to this allegation. Relatively soon thereafter, however, on October 31, 1994, plaintiffs learned that an infant child would become available to them for adoption through a private agency. Adams Aff. Ex. E at 54. At Mrs. Adams' deposition, she admitted telling MCDSS during November 1994 that she was pursuing private adoption by taking a newborn infant at birth. In fact, the plaintiffs allowed the child's natural mother to live with them in January 1995 during her pregnancy. The child was born on February 25, 1995, and plaintiffs adopted it shortly thereafter. In March 1995, plaintiffs told MCDSS that they were no longer interested in either adoption or foster care from MCDSS because of the adoption of their infant son. At some point after that, plaintiffs also moved out of Monroe County. Plaintiffs testified at their depositions that they moved to Farmington, in Wayne County, New York, in June 1996, and returned to Monroe County around April 1997. Adams Aff. Ex. E at 4-5, 86.

 On April 6, 1995, plaintiffs also filed an administrative complaint with the United States Department of Health & Human Services. The Office for Civil Rights ("OCR") investigated the complaint and, on May 16, 1997, issued a decision finding that MCDSS had not violated any federal ...

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