The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff Lucille Harley brings a civil rights action under
42 U.S.C. § 1983 on behalf of her three grandchildren, Jountae
Johnson and Jondell and Egypt Harley. She alleges a violation
of their right to due process in connection with their removal
from her home in 1990 after a report of suspected child abuse
was filed against her by a physician at Long Island Jewish
Hospital. In particular, she alleges that they were entitled to
notice and a hearing prior to the removal. Defendants move for
summary judgment and argue that (1) this court should not
exercise jurisdiction over plaintiffs' claim; (2) plaintiffs'
due process rights were not violated because emergency
circumstances existed warranting the immediate removal of the
children; (3) the individual defendants were not personally
responsible for the children's removal, and they are entitled
to qualified immunity; and (4) plaintiffs have failed to
establish municipal liability because they cannot identify a
specific municipal policy that caused the alleged deprivation.
Unless otherwise noted, the following facts are undisputed:
Jountae Johnson and Jondell and Egypt Harley are the children
of Linda Harley, the daughter of plaintiff, Lucille Harley.
(Plaintiff will be referred to as "Harley"). Jountae and
Jondell, who were born in 1984 and 1987 respectively, lived
with Harley in 1990 pursuant to a "kinship foster care"
agreement that was established with the Commissioner of Social
Services in 1987 after the children were adjudicated neglected
and placed in the custody of the State. Egypt, who was born in
1989 with congenital respiratory problems, lived with Harley
under a "restrictive placement" arrangement. Under both
arrangements, the Commissioner retained custody of the
children, but Harley agreed to provide them with food,
clothing, shelter and medical care in exchange for a stipend.
On September 10, 1990, Harley brought Egypt to Long Island
Jewish Hospital ("LIJ") because he was experiencing respiratory
problems. Plaintiffs assert that, after waiting at the hospital
for several hours, Harley was told that she was overreacting
and that there was nothing wrong with the child.*fn1
Plaintiffs further assert that, shortly thereafter, when Harley
was told that the hospital could not look after Egypt while she
went to pick up Jondell, she left LIJ and took Egypt to
Elmhurst Hospital where he was diagnosed with pneumonia and
admitted. Defendants, in contrast, assert that Harley was told
by Dr. Abraham Warshaw that Egypt had a high white blood cell
count and that he needed to be admitted. An LIJ progress note
dated September 10, 1990, indicates that Harley left LIJ with
Egypt sometime before 6 p.m. She did not arrive at Elmhurst
Hospital until 8:15 p.m.
When Warshaw discovered that Harley had left LIJ, he called
the police. Warshaw asserts in an affidavit that he reported
Harley because he suspected child abuse. Plaintiffs speculate
that, when Warshaw discovered Egypt had pneumonia, he regretted
having let Egypt go, and he called the police in an attempt to
shift the blame for his mistake to Harley. Plaintiffs have not
provided any evidentiary support for this claim.
In response to Warshaw's complaint, police officers went to
Harley's home on the evening of September 10, 1990. Harley's
daughter, Pamela, told the officers that she did not know where
her mother was.
The next afternoon, on September 12, 1990, Byers and Alfredo
Aguilar, an OCI employee, visited Harley's home. They observed
various violations of the foster-boarding regulations,
including a malfunctioning smoke alarm, a rolled-up carpet
blocking the front door, several bird cages with droppings and
bird food at the bottom within easy reach of small children,
inadequate dining and bedroom furnishings, the existence of an
additional resident in the home who had not been cleared by the
State, an entire bedroom filled with boxes of old clothing and
toys, and piles of boxes blocking the windows. The kitchen was
clean, and there was plenty of food in the house. The
children's clothes were dirty, and Harley refused to allow
Aguilar to interview the two older children alone. Aguilar
directed Harley to bring the children for emergency medical
examinations the following day and to correct some of the
violations. According to Byers' notes, however, when he
returned the next day, the condition of the apartment was
Aguilar and Byers also reviewed Egypt's medical records from
LIJ and spoke with several of his physicians. Egypt's records
characterize Harley as "excited, confused, and defensive" on
one occasion, "not alert to child's problems or needs" on
another, and confused and distrustful of staff on another.
Byers' progress notes indicate that Dr. Weeks, a physician at
New York Hospital, stated that he did not think Harley was
"fully capable of caring for such a sick child." In addition,
Byers was told by staff members at New York Foundling Hospital
that Harley had not brought Egypt in for follow-up care and
that Harley would not consent to having Egypt treated for an
On September 13, 1990, following three days of investigation,
OCI decided to remove the children from Harley's home. Byers'
supervisor, defendant Kersandra Cox, testified at a hearing
that she was told of OCI's decision by her supervisor, Berry
Coles. She further testified that, once OCI made a decision to
remove, she had no choice but to effectuate the removal. She
stated: "We had no choice. OCI was informing us that the
children had to be removed. The children had to be removed."
When Byers went to Harley's home on the afternoon of
September 13, 1990, Harley refused to give him the children,
and, when he returned later with the police, the children were
no longer there. Cox testified that she attempted to speak to
Harley on the phone several times that afternoon but that
Harley repeatedly hung up on her.
When Cox was unable to effectuate the removal of the children
voluntarily, she went to Family Court (Robert Clark, J.) on
September 14, 1990, to obtain an order directing removal.
Harley appeared alone and without counsel, and the judge
conducted an impromptu hearing. The Commissioner's attorney,
Rhoda Rawson, requested that the children be temporarily
remanded to DSS pending the filing of a petition for remand.
Judge Clark remanded Egypt to the care of the Commissioner but
he denied the request to modify Jountae's and Jondell's
placements, stating that he was "very concerned with the aspect
of summarily moving the two older children until the Court has
had an actual hearing into this matter." He further stated,
however, that "[i]f you act under Section 400, and you do so,