The opinion of the court was delivered by: Kimba M. Wood, District Judge.
AMENDED OPINION and ORDER
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
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, 96
S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo,
380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)); see Brock v.
Roadway Express, 481 U.S. 252, 261, 107 S.Ct. 1740, 95 L.Ed.2d
239 (1987) (quoting same). However, the Court grants defendants'
motion, which it treats as a motion for summary judgment, as to
plaintiffs claims that there was no basis for emergency removal.
Finally, the Court hereby vacates its earlier Order of
September 15, 1998 in this case solely as to its decision to
grant the individual defendants qualified immunity.
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 recommend[ed] 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
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
. . . [E]ven after I questioned
them, no one took the initiative to come
over to the apartment, because that was
the question at hand[.][B]ut 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 to 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
babysitters 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 ¶¶
105-07; Def. Resp. 56.16 ¶¶ 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.
Andrew's adoption process resumed January 4, 1995. Ms.
Rodriguez's adoption of Andrew was finalized on August 17, 1995.
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 nonmovant 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, 106 S.Ct. 2548, 91 L.Ed.2d 265
(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, 106
S.Ct. 2548. 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, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). Although a court considering a motion for
summary judgment must view all evidence in the light most
favorable to the nonmoving 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, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986). If, based on the submissions to the court, no
rational factfinder 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, 106 S.Ct. 2505.
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 plaintiffs exclusive ...