Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 18, 2000


The opinion of the court was delivered by: Robert J. Ward, District Judge.


Plaintiffs brought this action under 42 U.S.C. § 1983 and 1988 alleging violations of their rights secured by the First, Fourth, Ninth, Thirteenth, and Fourteenth Amendments to the United States Constitution, and various provisions of the New York State Constitution and the Family Court Act. Defendants moved pursuant to Rule 12(b)(1), FED. R. CIV. P, for an order dismissing plaintiffs' complaint for lack of subject matter jurisdiction, and for federal court abstention. They have also moved pursuant to Rule 12(b)(6), FED. R. CIV. P, for an order dismissing plaintiffs' complaint for failure to state a claim upon which relief can be granted. For the reasons hereinafter stated, defendants' motion to dismiss pursuant to Rule 12(b)(1) and request for abstention are denied. Defendants' motion to dismiss pursuant to Rule 12(b)(6) is granted in part and denied in part.


I. The Parties

Plaintiff People United For Children, Inc. ("People United") is a non-profit organization that was founded in 1983. It conducts a weekly support group for individuals who have lost custody of their children to the defendant Administration for Children's Services ("ACS"). The individual named plaintiffs, whose particular allegations are set forth below, are affiliated with People United. Defendants are the City of New York, Mayor Rudolph W. Giuliani, ACS and its predecessor agency, the Child Welfare Administration ("CWA"), and Nicholas Scoppetta, the Commissioner of ACS. ACS, like its predecessor CWA, is responsible for investigating and prosecuting incidents of child abuse and neglect.*fn2

II. Alleged System-Wide Deficiencies

Plaintiffs allege a number of system-wide deficiencies in ACS's administration of New York City's child welfare program. They contend that ACS fails to fully investigate allegations of child neglect and abuse against parents or legal guardians before removing children from their custody. This failure to investigate allegedly results from ACS' proclaimed policy of resolving "[a]ny ambiguity regarding the safety of a child . . . in favor of removing the child from harm's way," and returning children to their parents or guardians "[o]nly when families demonstrate to the satisfaction of ACS that their homes are safe and secure." First Amended Complaint at ¶ 37 ("Complaint"). According to plaintiffs, this failure to investigate deprives plaintiffs of their rights under the First, Fourth, Ninth, Thirteenth, and Fourteenth Amendments to the United States Constitution, and Article XVII of the New York State Constitution. Plaintiffs also allege that ACS fails to provide them with information concerning available procedures and programs which will assist them in regaining custody of their children in violation of various provisions of New York's Family Court Act. Furthermore, plaintiffs claim that ACS fails to adequately monitor and supervise other foster care providers which are subcontractors of ACS.*fn3

In support of these general allegations, plaintiffs set forth the circumstances of a number of individuals who have allegedly been subjected to the challenged policies and practices of defendants.

III. Allegations Regarding Individual Plaintiffs

Each of the individual plaintiffs is a parent or legal guardian who has been threatened with the removal of their children, or whose children have been removed and placed into the custody of CWA or ACS.

A. Candia Richards-Cantave and Joslin Richards-Cantave

During the course of his interrogation of Mrs. Richards-Cantave, Mr. Small asked to see records concerning her son's immunization. In response, Mrs. Richards-Cantave stated that her son was only six months old and that she and her husband had decided to delay having their son immunized because of their religious beliefs and concerns about the safety and efficacy of immunizations. In addition, Mrs. Richards-Cantave, who has a Masters Degree in Public Health and was employed as the Director of a health-related organization at the time of these events, explained that she was breast-feeding her son and that he was in no danger since the immunity he received from her lasts at least eighteen months. Mrs. Richards-Cantave also handed Mr. Small documents concerning her religious beliefs and the exemptions from the vaccination requirements.

In response to Mrs. Richards-Cantave's statements and presentation of supporting documents, Mr. Small stated, "in New York State all children have to be immunized. There are no exceptions or exemptions." Complaint at ¶ 52. Mr. Small and Ms. Reyes then told Mrs. Richards-Cantave that she should be charged with medical neglect and that her son should be removed from her custody because he was not immunized. Mr. Small also requested the name and telephone number of Mrs. Richards-Cantave's child's physician, which Mrs. Richards-Cantave provided.

The next day, Mr. and Mrs. Richards-Cantave obtained a letter from their child's physician stating that they were good parents and that their son was in good health. They then visited the Bronx ACS office accompanied by a social worker. Mr. and Mrs. Richards-Cantave spoke to Mr. Small's supervisor, Mr. Esere, who stated that it was not necessary for them to come to the office and that Mr. Small had stated that there was nothing to the case.

As they were leaving the ACS office, Mr. and Mrs. Richards-Cantave encountered Mr. Small. Contradicting his supervisor's statements, Mr. Small began talking about their alleged failure to immunize their son and stated that he had to talk to ACS lawyers about the case. During the course of the following week, Mr. Small called Mrs. Richards-Cantave on numerous occasions, both at work and at home, to inquire as to whether she was willing to have her son vaccinated. In response to threats that a court order would be obtained if she did not agree to vaccination, Mrs. Richards-Cantave repeatedly stated that there was no medical emergency and requested that her decision not to vaccinate her son be respected.

Subsequently, Mr. Small called Mrs. Richards-Cantave, this time to inform her that she and her husband were required to appear in Bronx Family Court on September 25, 1998. Mr. and Mrs. Richards-Cantave then obtained legal counsel and went to court on the date set. On the day of the hearing, Mr. and Mrs. Richards-Cantave were served with copies of an Article 10 petition, which contained charges of neglect filed against them. Despite being told that they would receive the papers prior to the hearing date, this was the first time that Mr. and Mrs. Richards-Cantave saw the petition. Once inside the courtroom, the ACS attorney informed the judge that ACS was withdrawing the petition.

B. Khatira Hikmah

Based on the condition of her apartment, which was messy and contained a religious shrine, the ACS workers and the police concluded that Ms. Hikmah and her granddaughter were in danger. Ms. Hikmah was handcuffed and involuntarily taken to Harlem Hospital. Ms. Hikmah's granddaughter was also taken to Harlem Hospital for a pediatric examination. No signs of abuse or neglect were subsequently reported. After four days at Harlem Hospital, Ms. Hikmah was released when it was determined that she was neither a danger to herself nor anyone else.

C. Khaliah Martin

In March, 1993, Ms. Martin's three children were taken from her custody by CWA, the predecessor agency to ACS. Ms. Martin's daughter was placed with her grandmother, and her two sons were placed in foster care. In November 1996, while she was incarcerated at Rikers Island, Ms. Martin's parental rights for her two sons were terminated in proceedings initiated by one of ACS's contract agencies. Ms. Martin was not present during these proceedings.

D. Amanda Sherman

In August, 1995, Ms. Sherman, believing that her maternal granddaughter would only be temporarily removed, voluntarily placed her in the custody of CWA. CWA (or ACS) refuses to return Ms. Sherman's granddaughter to her despite Ms. Sherman's repeated requests and despite the fact that she has been taking care of her granddaughter's brother for over five years without incident. Ms. Sherman was never offered preventive services, informed of the consequences of her actions, or informed of her right to have her granddaughter live with her under a "kinship" program.

E. Theresa Logan

In the Fall of 1997, Ms. Logan's son and daughter were removed from her custody by ACS after the public school that her son attended reported that she refused to have him evaluated for placement in the special education program. Thereafter, the two children were placed in the custody of their maternal grandmother and subsequently their maternal aunt, with whom they remain. In June 1998, ACS wrote a letter to Ms. Logan requesting that she contact the office regarding counseling and parenting skills classes. The Complaint does not indicate whether Ms. Logan enrolled in any counseling or classes. Ms. Logan is able to visit her children but ACS refuses to return them to her custody or develop a meaningful family reunification plan.

F. Lucille Delaphena and Jose Pena

In March 1993, Ms. Delaphena's and Mr. Pena's son and daughter were removed from their custody and placed in foster care by CWA after CWA received reports that Ms. Delaphena and Mr. Pena were using drugs. Following the removal of the children, ACS (or its predecessor CWA) failed to develop a meaningful family reunification plan, or advise plaintiffs about, or refer plaintiffs to, any programs that would assist them in obtaining custody of their children. Nevertheless, Ms. Delaphena enrolled in and successfully completed a drug treatment program as well as a program on parenting skills. Subsequently, Ms. Delaphena's and Mr. Pena's parental rights were terminated in proceedings initiated by ACS, or one of ACS's contract agencies.

G. Agatha Sibley

H. Cherry McClamy

In April 1992, Ms. McClamy's son and daughter were removed from her custody by CWA following an allegation that she had physically abused her daughter. Since that time Ms. McClamy has successfully completed parenting skills courses and received therapy, but ACS has not yet returned her daughter to her custody.

I. Lesley Marguerite Adams-Simien

On or about July 29, 1997, Ms. Adams-Simien's six year old daughter was removed from her custody by employees of ACS following allegations that Ms. Adams-Simien had inadequately supervised her daughter. Ms. Adams-Simien has completed a parenting skills course and is receiving therapy, but her daughter has not been returned to her custody.

J. Concita Jones

Ms. Jones was accused of leaving her children alone on at least one occasion at a shelter. Subsequent to that event, her two children were removed from her custody without a court order based on an allegation that she failed to provide them with proper supervision and guardianship. Prior to their removal, Ms. Jones was not offered any preventive services by defendants. Ms. Jones' children have not yet been returned to her custody.

K. Denise Johnson Burgess and James Burgess

On November 8, 1997, Ms. Johnson Burgess' and Mr. Burgess' four daughters and granddaughter were removed from their custody by employees of ACS and an unknown number of officers from the NYPD, following an allegation that Ms. Johnson Burgess and Mr. Burgess had neglected their six year old daughter. Ms. Johnson Burgess was taken to North Central Hospital and then to the Fifty-Second precinct police station. After several hours at the station, she was released and the charges against her were dropped. Her children have not been returned to her custody.


I. Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to the Rooker-Feldman Doctrine

Defendants argue that this action should be dismissed because the Court lacks subject matter jurisdiction over the case. In deciding such a motion pursuant to Rule 12(b)(1), FED. R. CIV. P., the Court must accept as true all material factual allegations in the complaint, but should refrain from drawing any inferences in favor of the party asserting jurisdiction. Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992).

Defendants argue that the Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine because the exercise of jurisdiction here would result in a reversal or modification of New York State Family Court judgments upholding the removal of plaintiffs' children. Plaintiffs counter that they are not seeking review of these Family Court proceedings, but rather, are challenging the general policies and practices ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.