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HARLEY EX REL. JOHNSON v. CITY OF NY

February 4, 1999

LUCILLE HARLEY ON BEHALF OF JOUNTAE JOHNSON, JONDELL HARLEY, AND EGYPT HARLEY, PLAINTIFFS,
v.
THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES, THE NEW YORK CITY CHILD WELFARE AGENCY, THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, AND JOHN BYERS AND KERSANDRA COX IN THEIR INDIVIDUAL CAPACITIES AND IN THEIR OFFICIAL CAPACITIES AS EMPLOYEES OF THE CITY OF NEW YORK AND OF THE NEW YORK HUMAN RESOURCES ADMINISTRATION, RESPONDENTS.



The opinion of the court was delivered by: Gershon, District Judge.

  ORDER

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.

Facts

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 unchanged.

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 ear infection.

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, I ...


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