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BRUKER v. CITY OF NEW YORK

March 31, 2000

STEPHANIE BRUKER, PLAINTIFF,
V.
CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES/HUMAN RESOURCES ADMINISTRATION/CHILD WELFARE ADMINISTRATION, CURRENTLY OPERATING AS ADMINISTRATION OF CHILDREN'S SERVICES; ROBERT LITTLE, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK CITY CHILD WELFARE ADMINISTRATION; DOLORES PERRY, IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY AS A CASEWORKER FOR THE NEW YORK CITY CHILD WELFARE ADMINISTRATION; CATHOLIC HOME BUREAU; FATHER FLANNEGAN'S BOYSTOWN, NEW YORK; MAYOR RUDOLPH GIULIANI, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; DEPUTY MAYOR JOHN DYSON, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY; MARVA LIVINGSTON HAMMONS, IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE HUMAN RESOURCES ADMINISTRATION; AND KATHERINE KROFT, IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY AS EXECUTIVE DEPUTY COMMISSIONER OF THE HUMAN RESOURCES ADMINISTRATION, DEFENDANTS.



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

    OPINION

Plaintiff's principal grievance in this action is that New York City, immediately upon removing plaintiff's daughter from her custody, deliberately and totally ignored the fact that both plaintiff and her daughter were avowedly Jewish, and placed the daughter through a Catholic foster care agency into a Catholic foster home.

This action was commenced on June 8, 1993. Stephanie Bruker filed the original complaint in her own behalf and in behalf of her minor children, Elizabeth-Ann Marcovitz ("Elianne"), born June 5, 1979, and Allison Natalie Marcovitz ("Allison"), born November 11, 1976. The original complaint named as defendants the City of New York, the City of New York Department of Social Services, Human Resources Administration, Child Welfare Administration ("CWA"),*fn1 Robert Little, Commissioner of the New York City Child Welfare Administration, Dolores Perry, caseworker for the New York City Child Welfare Administration, and the Catholic Home Bureau, a private foster care placement agency.

On January 12, 1994, plaintiff requested that the case be placed on the suspense docket pending the outcome of ongoing proceedings in the New York Family Court. The case was placed on the suspense docket by order dated January 20, 1994. On June 5, 1998, the case was restored to active status at plaintiff's request.

Plaintiff filed an amended complaint on June 1, 1999. By that time, both of plaintiff's daughters had passed age eighteen. Therefore, the amended complaint asserts only the claims of the parent, Stephanie Bruker. In the amended complaint, plaintiff added several defendants: Mayor Rudolph Giuliani, Deputy Mayor John Dyson, Marva Livingston Hammons, Commissioner of the Human Resources Administration, Katherine Kroft, Executive Deputy Commissioner of the Human Resources Administration, and Father Flannegan's Boystown. The amended complaint seeks relief pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1988 and related state law causes of action.

Defendants City of New York, the CWA, Little, Perry, Giuliani, Dyson, Hammons, and Kroft (the "municipal defendants") move to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and on the ground that all claims are barred by collateral estoppel. The Catholic Home Bureau has joined the motion of the municipal defendants. Defendants Giuliani, Dyson, Hammons, and Kroft also move to dismiss the amended complaint on the ground that all claims against them are barred by the statute of limitations. Defendants Giuliani, Dyson, Hammons, Kroft, and Little move to dismiss on the ground that they were not personally involved in the violation of plaintiff's rights as required for § 1983 liability. Father Flannegan's Boystown has not joined the motion. For the reasons that follow the motion is granted in part and denied in part.

ALLEGATIONS OF THE COMPLAINT

The CWA placed Elianne in the care of the Catholic Home Bureau. The Catholic Home Bureau in turn placed Elianne in the home of Susan Savoca, a Catholic foster care giver. (Am.Compl. ¶ 27.)

On June 12, 1992, the New York Family Court held a hearing to determine whether Elianne and Allison should be remanded to plaintiff's custody pending the outcome of the neglect proceeding that the CWA had initiated against plaintiff. The June 12 hearing was held pursuant to Section 1028 of the New York Family Court Act which provides that the "court shall grant the application [for an order returning the children to parental custody], unless it finds that the return presents an imminent risk to the [children's] li[ves] or health." N.Y. Fam. Ct. Act § 1028 (McKinney 1999). The Family Court held that returning the girls to plaintiff's custody did not pose an imminent risk to their lives or health and ordered that the girls be returned to plaintiff's custody during the pendency of the neglect proceeding. (Am. Compl. ¶ 29; In the Matter of Elianne Marcovitz, Order dated June 17, 1992.)

The CWA appealed this ruling, and the Family Court granted a stay of the order to return the girls pending the outcome of the CWA's appeal. (In the Matter of Elianne Marcovitz, Order dated July 10, 1992). On July 28, 1992, plaintiff and the CWA agreed that the CWA would withdraw its appeal and return Allison to plaintiff's custody provided plaintiff voluntarily placed Elianne in the custody of the CWA. (In the Matter of Elianne Marcovitz, Order dated July 28, 1992.)

After her removal from plaintiff's custody on June 8, 1992, Elianne remained in the physical custody of the CWA which placed her through the Catholic Home Bureau in the home of foster parent Savoca. (Am.Compl. ¶ 33.) Plaintiff voluntarily placed Elianne in the custody of the CWA as of July 28, 1992 when she entered into a stipulation with the CWA in exchange for its withdrawal of its appeal of the Family Court's ruling on the 1028 hearing.

Plaintiff alleges that the placement of Elianne in the Savoca home was against her wishes and violated her rights with respect to her daughter's placement. Plaintiff is Jewish and clearly expressed her desire to have her daughter placed with a Jewish foster care agency and in a Jewish foster home. Savoca is Catholic. Plaintiff alleges that the CWA refused to place her daughter in a Jewish foster home despite its knowledge of plaintiff's*fn4 and Elianne's*fn5 religious affiliation. (Am. Compl. ¶ 27.) Plaintiff made numerous requests that Elianne be transferred to a Jewish foster care agency. The CWA and Commissioner Little wilfully ignored these requests. (Am.Compl. ¶ 33.)

Plaintiff alleges that the foster care Savoca provided for her daughter was deficient in several other respects. While in Savoca's care, Elianne was truant from school 83 times during the course of one semester and failed in over half of her courses. Savoca permitted Elianne to engage in inappropriate activities, including smoking and engaging in sexual intercourse. Plaintiff complains that the CWA, the Catholic Home Bureau, and Perry were fully aware of Elianne's behavior while in Savoca's care, but took no action to rectify the situation. (Am.Compl. ¶ 30.)

According to the amended complaint, Savoca attempted to alienate Elianne from plaintiff by publicly berating plaintiff, making numerous press appearances, and generally aggravating the existing tension between plaintiff and her daughter. (Am. Compl. ¶ 28.)

On September 24, 1992, at plaintiff's request, the Family Court held a hearing to determine whether Elianne should be transferred to a Jewish foster care agency and a Jewish foster home. During the course of this hearing, Perry falsely testified that Savoca, although Catholic, was keeping a kosher home and raising Elianne in accordance with Jewish traditions. The Family Court ordered the CWA to remove Perry from the case because she had submitted a false affidavit to the court and had demonstrated personal animosity toward plaintiff. (Am. Compl. ¶ 35; In the Matter of Elianne Marcovitz, Addendum Decision and Order dated Sept. 24, 1992.)

The Family Court also ordered the CWA to transfer Elianne from the custody of the Catholic Home Bureau to a Jewish foster care agency. (Am. Compl. ¶ 36; In the Matter of Elianne Marcovitz, Decision and Order dated Sept. 24, 1992.) The CWA appealed the decision. The Appellate Division affirmed the Family Court's ruling by opinion dated December 22, 1992. In the Matter of Elianne M., 184 A.D.2d 98, 592 N.Y.S.2d 296 (App. Div. 1st Dep't 1992).

On that same day, Elianne ran away from Savoca's home to an undisclosed place. (Am.Compl. ¶ 39.) During the time that Elianne was missing from the Savoca home, she made several media appearances. The press reported that Elianne had been abused by her mother and now had to leave her foster home to be transferred to a Jewish home against her wishes. (Am.Compl. ¶ 44.)

Upon learning of Elianne's case from such reports, Pamela Liapakis,*fn6 an attorney, offered to represent Elianne and replace her court-appointed counsel. (Am. Compl. ¶ 48.) Elianne sought leave of the court to replace her court-appointed counsel with Liapakis. The Family Court denied this request. (In the Matter of Elianne Marcovitz, Order dated Jan. 12, 1993.) Plaintiff alleges that the CWA nonetheless improperly gave Liapakis confidential papers, which Liapakis then disclosed to the press. (Am.Compl. ¶ 50.)

After learning that Elianne had run away from the Savoca home, the Family Court issued a warrant for her return to the court. (Am.Compl. ¶ 49.) Approximately one month later, in early February of 1993, Elianne was returned to court on the warrant. The CWA then placed Elianne with OHEL, a Jewish foster care agency. (Am.Compl. ¶ 53.)

Elianne remained in the custody of OHEL, but had difficulty adjusting to her new environment. In approximately four months, Elianne had three separate foster home placements. After the third placement, OHEL recommended to the CWA that Elianne receive a psychiatric evaluation. (Am.Compl. ¶ 57.) On June 17, 1993, the CWA placed Elianne in the Four Winds Hospital where an evaluation was conducted. (Am.Compl. ¶ 57.) At this time, plaintiff reached another tentative agreement with the CWA to modify the terms of Elianne's voluntary placement. This agreement provided that the CWA would abide by the recommendations of Four Winds Hospital and Tom Croke, an educational consultant for children with special needs, whom plaintiff had hired. (Am.Compl. ¶ 58.) The Four Winds Hospital report recommended that Elianne be paroled to plaintiff's custody. Plaintiff planned to send Elianne to a private therapeutic boarding school in Utah for treatment. The CWA did not follow the recommendations of the Four Winds Hospital. (Am.Compl. ¶ 59.)

Sometime later, although it is not clear from the amended complaint exactly when, Elianne signed herself out of Four Winds Hospital, and the CWA placed her in another treatment center, the Catholic Institution of Edwin Gould. Elianne remained in this treatment center for 18 months. (Am.Compl. ¶ 62.)

In October of 1994, the CWA transferred Elianne from Edwin Gould to Father Flannegan's Boystown of New York ("Boystown"), another Catholic agency. At this time, Boystown sent Elianne to Catholic parochial school where she was educated in the Catholic faith. (Am. Compl. ¶ 63.)

Because Elianne was a Canadian citizen, External Affairs Canada moved in January of 1995 to become involved in the state court case in an attempt to return Elianne to Canada. (Am.Compl. ¶ 64.) The Canadian government's consular service in New York attended all court hearings from January 1995 through the end of the family court case. The CWA opposed the appearance of External Affairs Canada. (Am.Compl. ¶ 67.)

External Affairs Canada attempted to notify defendants Kroft, Hammons, and Dyson that Elianne was a citizen of Canada and that Canada therefore had an interest in the case. (Am.Compl. ¶ 65.) Plaintiff personally delivered a letter to Mayor Giuliani to advise him of the Canadian government's desire to be contacted regarding Elianne's custody. Mayor Giuliani never responded. (Am.Compl. ¶ 66.)

On July 6, 1995, the Family Court found plaintiff guilty of neglect in the proceeding originally initiated by the CWA in June of 1992. (Am.Compl. ¶¶ 69-71.) Plaintiff appealed that decision. (In the Matter of Elianne Marcovitz, Notice of Appeal dated Nov. 2, 1995.)

On September 28, 1995, the Family Court entered an order directing that Elianne remain at Boystown until her eighteenth birthday, June 5, 1996. The order also denied plaintiff visitation and directed that family therapy continue. (In the Matter of Elianne Marcovitz, Order dated Sept. 28, 1995.)

After granting plaintiff two extensions of time in which to perfect her appeal, the Appellate Division dismissed the appeal sua sponte on February 4, 1997. (Am. Compl. ¶ 72; In re Elianne M., 236 A.D.2d 897, 654 N.Y.S.2d 282 (App. Div. 1st Dep't 1997)).

THE CLAIMS

The amended complaint contains ten counts against ...


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